IPE Marble Arch Limited v Anthony Moran

Leave to prefer a voluntary bill of indictment after dismissal of Crown Court charges is an exceptional remedy. It may be granted for a basic and substantive error of law, but only where the prosecution evidence, taken at its highest and viewed as a whole, is sufficient for a proper conviction. An overarching intention to stop a development does not satisfy the specific mental elements of forgery or fraud where the only alleged falsity concerns the sender’s identity. For forgery, the intention to induce acceptance of a false instrument and consequent financial or property prejudice must be linked to the use of that false identity. For fraud, the false representation must be intended to make a gain or cause a loss, or risk of loss, in money or property.

IPE Marble Arch Limited brought a private prosecution against Anthony Moran concerning emails sent under three allegedly false identities. The charges comprised forgery contrary to section 1 of the Forgery and Counterfeiting Act 1981 and fraud contrary to section 1 of the Fraud Act 2006.

HHJ Tomlinson at Southwark Crown Court dismissed all charges and quashed the indictment on 12 October 2023. The prosecution sought leave from the High Court to prefer a voluntary bill of indictment, alleging a basic and substantive error of law. The central issues were whether the Crown Court had misapplied the statutory requirements and whether the evidence was sufficient for a proper conviction.

1. Exceptional jurisdiction. The application was dismissed. The power to permit a voluntary bill following dismissal of Crown Court charges is exceptional. It cannot be used merely because the High Court would take a different view of the evidence or identifies an error in the lower court’s reasoning. The prosecution had to establish a basic and substantive misapplication of law and sufficient evidence for a proper conviction.
2. Evidence and no-case assessment. The evidence had to be taken at its highest, assessed as a whole and in context, applying the principles used on a submission of no case to answer. The court had to decide whether a jury could properly draw the necessary inferences from the evidence, including the documentary evidence.
3. Forgery. The court accepted that an email could be an instrument and that the statutory concept of falsity required consideration under sections 8 and 9 of the Forgery and Counterfeiting Act 1981. However, section 1 required a double intention. The defendant had to intend that the false instrument would induce acceptance as genuine and that, by reason of that acceptance, a person would do or omit an act causing the statutory form of financial or property prejudice. The defendant’s general intention to stop the development did not satisfy that requirement. The prosecution had not identified who was to be induced to do what, or provided an evidential basis linking the required intention to the use of the false identity.
4. Fraud. The same defect affected the fraud counts. The prosecution had to prove that use of the false identity was intended to make a gain or cause a loss, or expose another to a risk of loss, within the meaning of the Fraud Act 2006. The emails showed complaints, questions and objections, but the prosecution had not explained how they were intended to produce a gain or loss in money or property. The statutory language had been recited without adequate factual particularisation.
5. Abuse of process and disposal. The abuse of process argument did not require determination. It disclosed no proper basis for a stay in any event. Leave to prefer a voluntary bill of indictment was refused. Consequential matters, including costs, were left for agreement or written submissions.

HHJ Tomlinson, sitting in the Crown Court at Southwark, dismissed all charges and quashed the indictment on 12 October 2023. No right of appeal existed. The High Court refused the prosecution’s application for leave to prefer a voluntary bill of indictment.