MACMILLAN CANCER SUPPORT v REBECCA TOOGOOD

A criminal conviction is not rendered unsafe merely because a judge uses colloquial language to focus the jury on the real issues, provided the summing-up accurately presents the defence and the burden of proof.

Where a defence statement does not identify a material issue, the prosecution may investigate it when it emerges in cross-examination. Late evidence may be admitted under the Police and Criminal Evidence Act 1984, section 78, where the defence can test it and admission causes no unfairness or material prejudice.

A defence statement may be used to pursue reasonable lines of inquiry with prosecution witnesses. Informing witnesses of the defence case and obtaining further statements is not itself improper or an abuse of process; witness coaching and collusion are materially different.

The appellant was convicted at the Crown Court at Winchester of two offences of theft and fraud following a private prosecution. She received suspended custodial sentences, an unpaid work requirement, compensation and a surcharge.

With leave to appeal against conviction, she challenged: the judge’s summing-up; the admission of late evidence from a further investigator; and the prosecution’s disclosure of the defence case to key witnesses. The central questions concerned the fairness of the trial, the scope of a defence statement, and the propriety of further witness interviews.

Appeal dismissed. The conviction was safe, and none of the three grounds had merit individually or cumulatively.

1. Summing-up. The judge accurately identified the two strands of the defence and directed the jury that the appellant was entitled to acquittal if either possibility might be true. His references to focusing on the real issue and to the appellant not being able to rely on inconsistent possibilities were intended to direct attention to the central question: whether she gave the money to her former partner to bank. They did not suggest that the defence was illegitimate or make the summing-up prejudicial.
2. Late evidence. The matters leading to the further investigation emerged only in cross-examination and had not been identified in the defence statement. It was proper to allow the investigation to continue and to admit the further evidence. Applying section 78 of the Police and Criminal Evidence Act 1984, the court held that there was no unfairness: the defence could cross-examine the investigator, raise hypothetical possibilities and address the evidence in closing submissions. The suggested need for expert evidence had no credible evidential foundation.
3. Defence statement. The requirements in section 6A of the Criminal Procedure and Investigation Act 1996 made it important for the defence statement to identify any dispute about whether the money had reached the charity. The statement focused on whether the appellant had given the money to her former partner and did not flag the alternative payment-system issue. This justified further prosecution inquiries when that issue arose at trial. The approach was consistent with R v. Rochford [2011] 1 Cr. App. R. 11.
4. Witness interviews. The prosecution had a duty to pursue reasonable lines of inquiry, including investigating matters disclosed in the defence statement with existing witnesses and obtaining further statements. Informing witnesses of the nature and detail of the defence was not itself improper or an abuse of process. R v. Momodou and another [2005] 2 All ER 571 concerned inappropriate coaching and the risk of witnesses tailoring evidence. The present case involved a materially different concern, and no special direction was required.

The jury was sure that the account that the money had been given to the former partner and that he had returned with a receipt was fabricated. The appeal was dismissed.

1. Court of Appeal (Criminal Division): On 11 May 2022, dismissed the appeal against conviction and held that the conviction was safe: [2022] EWCA Crim 633.
2. Crown Court at Winchester: On 22 June 2021, convicted the appellant of two offences of theft and fraud. On 26 August 2021, imposed suspended custodial sentences, an unpaid work requirement, compensation and a victim surcharge.