TJC, R v

Where a prosecution for fraud alleges a general deficiency in funds controlled under a position of trust, it need not identify every individual transaction said to be dishonest. The indictment must nevertheless make the case intelligible. It must identify the alleged deficiency and explain how legitimate expenditure will be allowed for in its calculation. A terminating stay for inadequate particulars is wrong where that clarification can fairly be supplied in a written note of the prosecution opening.

The respondent was her father’s sole attorney under a lasting power of attorney after he lost capacity. Count 1 alleged fraud by abuse of position, contrary to sections 1 and 4 of the Fraud Act 2006, arising from her use of his funds for herself and others.

At trial, the Recorder required the prosecution to identify the individual transactions said to be unlawful. The prosecution contended instead that the evidence showed an overall deficiency: cash withdrawals and transfers substantially exceeded the reasonable cost of the father’s care during three identified periods. The Recorder stayed count 1 as an abuse of process for want of further particulars. The prosecution appealed under section 58 of the Criminal Justice Act 2003.

Appeal allowed. The Recorder’s terminating ruling was wrong in law.

1. The prosecution case was that the respondent had misappropriated funds through a general deficiency, not that each individual withdrawal or transfer could separately be proved unlawful. That was a permissible basis for the allegation.
2. The court treated R v Tomlin [1954] 2 QB 274 as analogous. Although the exact deficiency could not be calculated here, the prosecution could identify the total withdrawn or transferred, divide the period into stages, and allow reasonable expenditure incurred for the father’s benefit. The remaining disparity could found the alleged general deficiency.
3. Count 1 was sufficient for that case. Fairness required the prosecution to explain the size of the alleged deficiency and its method of calculation, but did not require it to specify each unlawful transaction. The proper course was to require a written note of opening setting out that case, rather than to stay the count as an abuse of process.
4. Proceedings on count 1 were directed to resume in the Crown Court with counts 2 to 4. The prosecution was directed to provide by 1 October a note explaining the calculation of the alleged general deficiency and to consider the evidential basis for reasonable expenditure.

In a postscript, the court stated that advocates at pre-trial hearings must be familiar with the case and raise such objections promptly. A trial judge may decline a late application which should have been made earlier.

• Court of Appeal (Criminal Division). The prosecution appeal was allowed and the terminating ruling was reversed: [2015] EWCA Crim 1276.
• Crown Court at Mold. The Recorder stayed count 1 as an abuse of process because the prosecution had not identified the transactions alleged to be unlawful.