Boaden, R v

Where dishonesty bears its ordinary meaning and there is no evidence that a defendant held an idiosyncratic view of it, the jury needs no separate direction defining dishonesty. A jury must, however, be directed to consider each count separately where the alleged acts, occasions and evidence of state of mind differ. The judge must also make clear that the prosecution must prove guilt so that the jury is sure, and that the defendant need prove nothing.

Directions which wrongly require counts to stand or fall together, omit the elements and relevant evidence, and inadequately explain the burden of proof may make verdicts unsafe and deny a fair trial. A retrial after convictions are quashed remains a discretionary question under the Criminal Appeal Act 1968, requiring a balance between the public interest and fairness to the defendant.

The applicant was convicted at Canterbury Crown Court of two fraud counts and one count of dishonestly failing to notify a change in circumstances, contrary to section 111A(1) of the Social Security Administration Act 1992. She received concurrent sentences of two years’ imprisonment.

The only issue at trial was dishonesty. The prosecution alleged that she had failed to disclose a Florida holiday property and a payment received following the sale of a business. She said that she honestly believed the property and money did not belong to her in a way requiring disclosure.

She sought an extension of 899 days to appeal. Her grounds challenged the absence of a dishonesty direction, the direction that all counts stood or fell together, and the directions on the burden and standard of proof. Following the quashing of the convictions, the court also had to decide whether to order a retrial.

1. The court granted an extension of time, granted leave to appeal on grounds 2 and 3, allowed the appeal, and quashed all convictions. It refused leave on ground 1. It declined to order a retrial.

2. Dishonesty has no special legal meaning in a case where the real issue is whether the defendant honestly believed that disclosure was unnecessary. There was no suggestion that the applicant held an idiosyncratic view of dishonesty. A direction by reference to R v Ghosh [1982] QB 1053, or further assistance on the meaning of dishonesty, was therefore unnecessary.

3. The judge’s instruction that the three counts stood or fell together was wrong. The counts concerned separate occasions, different property, and different evidence of the applicant’s state of mind. The jury had to assess each count independently. The error was compounded by the failure to explain the elements of the offences, to assist the jury with the disputed evidence, and by the inaccurate suggestion that all evidence had been agreed.

4. The judge also failed adequately to explain that the prosecution bore the burden of making the jury sure of guilt and that, if the jury were not sure, it must acquit. Counsel’s shorthand and muddled explanation did not cure that failure. Taken together, the defects made the verdicts opaque and deprived the applicant of a fair trial contrary to Article 6. The convictions were unsafe.

5. The delay was lengthy, but the applicant had actively sought the transcript and lacked advice identifying the legal defects. The failure of counsel to seek correction of the glaring defects in the summing-up also made it unjust to refuse an extension.

6. Under section 7(1) of the Criminal Appeal Act 1968, a retrial required a balance of interests. The public interest in prosecuting alleged benefit fraud was outweighed by the age of the allegations, the toll of successive proceedings on the applicant’s mental health, and her having served the full sentence for these offences and most of the sentence for related insolvency offences. A retrial was not in the interests of justice.

• Court of Appeal (Criminal Division): granted an extension of time of 899 days, granted leave on grounds 2 and 3, allowed the conviction appeal and quashed the convictions. It refused to order a retrial under section 7(1) of the Criminal Appeal Act 1968.
• Crown Court at Canterbury: on 6 November 2015 convicted the applicant of two fraud counts and an offence contrary to section 111A(1) of the Social Security Administration Act 1992; on 18 December 2015 imposed concurrent sentences of two years’ imprisonment.