Foxley, R. v

A conviction is unsafe because of deficient advocacy only where the representative’s incompetence caused identifiable errors that made the trial unfair and the conviction unsafe. Poor presentation, prolix cross-examination, or an ill-judged closing speech will not suffice where the defence case was nevertheless fully deployed, the jury remained focused on the evidence, and the judge gave a fair and adequate summing-up.

Although the knowledge and dishonest-failure elements of section 111A(1A) are distinct in law, a direction need not separately analyse them where, on the issues raised, a finding of dishonesty necessarily establishes the required knowledge of a change affecting benefit entitlement.

The appellant was convicted at Gloucester Crown Court of dishonestly failing to notify a change of circumstances affecting benefit entitlement, contrary to section 111A(1A) of the Social Security Administration Act 1992, and of three offences of fraud by false representation.

The prosecution alleged that she received more than £306,000 from the sale of a property, failed to disclose that capital, and continued to claim benefits. Her defence was that she honestly believed that the proceeds belonged to her former partner or were held for their children.

On appeal, she alleged that her trial counsel’s cross-examination and closing speech were so incompetent that the convictions were unsafe. She also challenged the direction on the statutory ingredients of the count under section 111A(1A), particularly the element of knowledge.

1. Appeal dismissed. The appellant’s renewed application for leave was granted, but neither ground rendered any conviction unsafe.

2. The governing question on a complaint about representation is whether counsel’s incompetence caused identifiable errors which made the trial unfair and the conviction unsafe. The court accepted that counsel’s cross-examination was unduly prolix and that his grandiloquent, rhetorical and sometimes facetious closing speech had no place in a modern criminal trial. However, the defence case was fully elicited in examination-in-chief and remained clear before the jury. The judge’s careful and even-handed summing-up, including an appropriate direction on dishonesty, also ensured that the jury decided the evidence rather than counsel’s presentation. Applying R v Day [2003] EWCA Crim 1060, and treating R v Ekaireb [2015] EWCA Crim 1936 as a relevant illustration, the advocacy did not make the trial unfair or the convictions unsafe.

3. For section 111A(1A), a change of circumstances is “affecting” entitlement only if it actually changes the amount of benefit to which the recipient is entitled. That construction followed R v Passmore [2008] 1 Cr App R 12 and London Borough of Croydon v Shanahan [2010] EWCA Crim 98. The benefit decision-maker had reasonably treated the unsold property as disregarded while it was being repaired and the appellant lived elsewhere. Its later conversion into cash therefore made a difference to entitlement. The contrary issue was neither challenged nor raised at trial and required no jury direction.

4. Section 111A(1A)(c) and (d) impose distinct legal requirements. Yet, on this case, the question whether the appellant knew that receipt of the money affected her entitlement was inseparable from whether she dishonestly failed to notify it. If the jury rejected her asserted honest belief that the money was not hers, its finding of dishonesty necessarily established the requisite knowledge. The judge’s direction consequently involved no material misdirection. The convictions on all four counts stood.

• Court of Appeal (Criminal Division): The appeal against all four convictions was dismissed.

• Gloucester Crown Court: The appellant was convicted by a jury on 23 October 2014 of one benefit-fraud offence and three offences contrary to section 2 of the Fraud Act 2006.