Henwood, R. v (Rev 1)

A challenged passage in a summing-up must be read in the context of the directions as a whole. A clear and correct earlier direction on the real issue may prevent a later passage from rendering a conviction unsafe.

Fresh material does not justify disturbing a conviction where, even considered in the appellant’s favour, it does not support the asserted account and the fuller record reinforces the prosecution case. A procedural error in adducing evidence of alleged collateral dishonesty will not make a conviction unsafe where there was ample permissible evidence and the error did not materially affect the verdict.

The appellant was convicted at Liverpool Crown Court of 12 counts of knowingly being concerned in fraudulent activity to obtain tax-credit payments, contrary to section 35(1) of the Tax Credits Act 2002. She was sentenced to 12 months’ imprisonment on each count, concurrently.

She renewed, after refusal by the Single Judge, her application for leave to appeal against conviction. She relied on alleged misdirection concerning whether she and her husband were a couple, post-trial HMRC records said to be fresh evidence, and cross-examination about holiday information said to require a bad-character application. The central issue was whether she had acted dishonestly by failing to declare that her husband lived at her address.

1. The renewed application for leave to appeal against conviction was rejected. The convictions were not unsafe.

2. The complaint about the summing-up failed. Section 3(5) of the Tax Credits Act 2002 defined a married couple by reference to whether they were separated under a court order or in circumstances likely to be permanent. Earlier in the summing-up, the judge correctly identified the core question as whether the appellant and her husband were a couple or were separated while living in the same household. Any divergence in the later passage, even if established, had to be read in that context and did not undermine the earlier impeccable direction.

3. The court assumed that the post-trial HMRC records could be admitted as fresh evidence. They did not assist the appellant. The 20 April 2004 screen print had to be read with the surrounding records. The relevant Cardiff office could make, but not receive, calls. This was inconsistent with the appellant’s maintained account that she had initiated a call to report a change in circumstances. The fuller material, particularly when contrasted with the call transcripts available at trial, left her in a worse position rather than providing a basis to challenge the safety of the verdict.

4. The respondent should have made a bad-character application before cross-examining the appellant so as to link alleged dishonesty concerning holiday information with alleged dishonesty in the tax-credit claims. That error did not call the safety of the convictions into question. There was ample permissible evidence on which the respondent could rely, and the additional impermissible step was immaterial.

• Court of Appeal (Criminal Division) — in [2014] EWCA Crim 2615, the court rejected the renewed application for leave to appeal against conviction after the Single Judge had refused leave.

• Crown Court at Liverpool — on 23 July 2013, the appellant was convicted of 12 tax-credit fraud counts and sentenced to concurrent terms of 12 months’ imprisonment.