Browbank v Director of Public Prosecutions

In a criminal appeal by way of case stated, a tribunal may draw common-sense inferences from a congeries of circumstantial evidence. A conviction may properly rest on evidence showing a system of transactions, control mechanisms, timing, opportunities for appropriation and unexplained irregularities. The prosecution need not establish every possible alternative explanation by direct evidence, such as stock-taking, where the evidence as a whole permits a properly directed tribunal to find appropriation proved. The appellate question is whether a reasonable tribunal, properly directed, could have convicted on the evidence.

The claimant was convicted by the justices for theft contrary to sections 1 and 7 of the Theft Act 1968. He worked as a retail assistant and was responsible for operating and cashing up tills. The prosecution relied on numerous unauthorised refund entries, the use of personal and shared identification codes, the timing of transactions, and evidence that money corresponding to the refunds was removed.

By case stated, the claimant asked whether a reasonable tribunal properly directed could have convicted on the evidence. He argued that, without stock-taking or another stock-checking process, the prosecution could not disprove that the refunds were genuine.

1. Appeal dismissed. The court answered yes to the question whether a reasonable tribunal, properly directed, could have convicted on the evidence.
2. The justices were entitled to consider the evidence cumulatively. The relevant circumstances included the demonstrated system of refund transactions, the till records, supervision and control procedures, the requirement for senior-manager authorisation, the absence of such authorisation, the use of the claimant’s identification number or the known training code, and his responsibility for cashing up.
3. Those circumstances were sufficiently compelling to permit the justices to draw the inference that the refunds had been used to create corresponding sums of money which the claimant appropriated. The justices were entitled to use common-sense reasoning when assessing the combined effect of the evidence.
4. The absence of stock-taking or another stock-check process did not make the prosecution case incapable of proof. The issue was whether the evidence permitted the inference of appropriation, and the justices were entitled to find that it did.
5. No order for costs was made, following the position in the lower court.

• High Court (Administrative Court): On a case stated appeal, the conviction was upheld and the appeal dismissed. No order for costs was made.
• Justices for the County of Hampshire: The claimant was convicted of theft contrary to sections 1 and 7 of the Theft Act 1968.