Brookes, R. v

In an application to adduce fresh evidence concerning dishonesty, evidence about impaired mental functioning will not assist where it does not affect the jury’s assessment of the deliberate and sustained conduct alleged. Under Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, the fact-finder first determines the defendant’s actual knowledge or belief from the evidence. It then decides objectively whether the conduct was dishonest by the standards of ordinary decent people. There is no separate subjective limb of dishonesty. A change from the former R v Ghosh approach did not assist an applicant whose convictions already showed that the jury had found dishonesty by that objective standard.

The applicant sought an extension of five years and five months to renew an application for permission to appeal against conviction. She had been convicted at Winchester Crown Court of 25 counts of dishonest conduct committed between 2009 and 2012. She later pleaded guilty to eight further counts on a separate indictment.

She relied on section 23 of the Criminal Appeal Act 1968 and sought to adduce a neuropsychiatric report concerning brain injury following surgery in 2005. She contended that the evidence could have caused the jury to doubt whether she was dishonest. The central issue was whether the proposed evidence, and the change in the law of dishonesty following Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, justified admitting fresh evidence and granting permission to appeal.

1. The court refused the applications for an extension of time, admission of fresh evidence and permission to appeal against conviction. It agreed with and adopted the single judge’s reasons.

2. The earlier sentence appeal had found the offending deliberate and sustained, committed while the applicant held a senior police post. Although that finding concerned sentence, it had some significance when assessing the proposed challenge to dishonesty.

3. The proposed evidence of Professor Kopelman was similar in its essentials to Professor Greenberg’s earlier evidence. Both addressed possible personality change and impaired understanding of right and wrong following surgery. The first Greenberg report had been available before trial, and trial counsel had made a considered decision not to rely on it because it would not assist on dishonesty and might provide an explanation for the conduct alleged.

4. The differing medical explanation for the personality changes, whether mental-health reasons or organic damage, was immaterial. The court held that evidence of compromised mental functioning would not have assisted the jury in assessing the deliberate series of fraudulent representations over a lengthy period. It might instead have undermined the defence.

5. The change in law following Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 did not assist. A jury must establish the defendant’s state of mind or belief as a matter of evidence, then decide objectively whether the conduct was dishonest by the standards of ordinary decent people. The former possibility under R v Ghosh of arguing an absence of subjective dishonesty was no longer part of the test. The jury’s verdicts established dishonesty by the applicable standard.

• Court of Appeal (Criminal Division): Refused the renewed applications for an extension of time, admission of fresh evidence under section 23 of the Criminal Appeal Act 1968, and permission to appeal against conviction: [2021] EWCA Crim 729.

• Court of Appeal (Criminal Division): On 29 July 2014, allowed the applicant’s sentence appeal to a limited extent and reduced the total sentence from 30 months to 18 months’ imprisonment.

• Crown Court at Winchester: On 28 February 2014, convicted the applicant after trial on 25 counts of dishonest conduct. On 10 March 2014, she pleaded guilty to eight counts on a separate indictment. On 6 May 2014, she received a total sentence of 30 months’ imprisonment.