Bush & Anor, R. v

On a prosecution appeal from a terminating ruling, Criminal Justice Act 2003 section 67 permits intervention only for legal error, error of principle, or an unreasonable ruling. The appellate court must respect the trial judge’s advantage in assessing the evidence.

On the second limb of the no-case test, the judge must assess the prosecution evidence as a whole. The judge need not assume that every available adverse inference will be drawn where the overall evidence points elsewhere, but must not usurp the jury’s function. A prosecution appeal must be judged against the case the prosecution elected to advance at trial.

The respondents, senior former employees of Tesco Stores Ltd, faced charges of fraud by abuse of position and false accounting concerning allegedly accelerated recognition of commercial income and Tesco’s interim profit forecast.

At their retrial in the Crown Court at Southwark, Sir John Royce upheld submissions of no case to answer. He concluded that the prosecution had not adduced evidence from which a properly directed jury could be sure that either respondent knew, before the Legacy Paper process, that income was being recognised unlawfully.

The prosecution sought leave to appeal under section 58 of the Criminal Justice Act 2003. The central issue was whether the judge had erred in defining the prosecution case and in assessing the sufficiency of the circumstantial evidence.

1. The application for leave to appeal was refused and the respondents’ acquittals were directed. Under section 67 of the Criminal Justice Act 2003, the court could intervene only for legal or principled error, or where the terminating ruling was unreasonable. The question was not whether the appellate judges might have reached a different conclusion. Great weight was due to the trial judge’s assessment of evidence he had heard and seen.

2. The court endorsed the approach in R (on the application of the Inland Revenue Commissioners) v Crown Court at Kingston [2001] EWHC Admin 581. On the second limb of R v Galbraith 73 Cr App R 124, a judge must evaluate the whole prosecution case. The judge may assess evidential weight and need not adopt every possible adverse inference, provided that the jury’s fact-finding role is not displaced.

3. The trial judge reasonably understood the prosecution to have accepted that it must prove the respondents’ knowledge that income was being recognised unlawfully or through false accounting. That was the basis on which the case was opened, evidence was elicited, and the no-case submission was argued. In the circumstances, the prosecution could not successfully recast its case on appeal.

4. The evidence did not bridge the essential knowledge gap. Awareness of commercially unwise or aggressive income pull-forward did not establish knowledge of unlawful recognition of income. The prosecution witnesses relied on as witnesses of truth did not themselves know of unlawful recognition or false documentation at the material time. The respondents’ interviews and the evidence of concerns expressed by another employee did not supply sufficient additional knowledge.

5. The judge was also entitled to find that the collaborative response to the Legacy issues did not support an inference of concealment or culpable failure to correct figures. Although an intention to expose another to a risk of loss can satisfy the fraud provision, the weakness of the evidence on intention was not determinative and merely reinforced the ruling.

• Court of Appeal (Criminal Division): refused the prosecution’s application under section 58 of the Criminal Justice Act 2003 and directed the respondents’ acquittals: [2019] EWCA Crim 29.
• Crown Court at Southwark: Sir John Royce upheld submissions of no case to answer on 26 November 2018 and refused the prosecution leave to appeal.