Neutral Citation Number:
[2013] EWCA Crim 590
Case No:
2012/5691/D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Friday, 22 March 2013
B e f o r e
:
LORD JUSTICE TREACY
MR JUSTICE SAUNDERS
HIS HONOUR JUDGE MILFORD QC
(Sitting as a Judge of the CACD)
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Between :
R E G I N A
v
RASHPAL KAUR
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Computer Aided Transcript of the Stenograph Notes of
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Mr P Brunt
appeared on behalf of the
Applicant
Mr M Jackson
appeared on behalf of the
Crown
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J U D G M E N T
1.
MR JUSTICE TREACY: On 1st May 2012 in the Crown Court at Wolverhampton, Rashpal Kaur was convicted of a number of offences. On 5th October 2012 she was sentenced to 32 months' imprisonment. She was convicted on all 22 counts of the indictment. Eighteen counts were for offences contrary to section 111A(1)(a) of the Social Security (Administration) Act. Three counts related to converting criminal property under section 327(1) of the Proceeds of Crime Act 2002 and there was one count of perverting the course of justice. The applicant was convicted of 17 counts relating to obtaining housing benefit and council tax benefit between 2003 and 2007. The applicant had represented and failed to declare that she was not a single parent and that she was related to her landlord. She had also failed to notify the local authority of her bank and building society accounts and the monies passing through them. Something like £270,000 had passed through her accounts. Two counts related to the completion of benefit claim forms for a friend. Two counts related to a claim for carer's allowance in 2009 when she failed to declare that she was employed, and the count of perverting the course of justice related to the production of a false document to the local authority in order to try to undermine a witness against her. In general terms the defence to the charges was a denial of any dishonest behaviour or the deliberate submission of any false information.
2.
The trial began on 16th April 2012. The prosecution witnesses were fully cross-examined on behalf of the applicant. The applicant gave evidence in chief on 24th April, apparently without difficulty, setting out her defence count by count and giving details in relation to specific counts. On the following day she failed to attend court. A doctor's note was submitted. It stated that she was unable to attend due to anxiety and depression. The proceedings were adjourned.
3.
The court reconvened on the following day, 26th April. The applicant attended court and was cross-examined for most of the day. The prosecutor had not completed cross-examination and anticipated continuing to test the applicant's account with detailed questions based on the substantial paperwork available in this case. However, this never happened because on the following day, 27th April, the applicant did not attend court and a further doctor's note was submitted. It stated that the applicant was suicidal and unable to attend court. The judge adjourned proceedings for the day and over the weekend. The court resumed on 30th April 2012. The applicant did not attend court. The judge ruled that the trial must proceed. In so ruling the judge accepted, on the basis of the material provided to him, that the applicant was unfit and would continue to be unfit for the foreseeable future. The prosecution urged the judge to continue with the case. The defence said that the applicant would be prejudiced. The judge ruled that the case should proceed. He said that the applicant would not be prejudiced. She had given all her evidence in chief. She had been cross-examined on most of the counts on the indictment. The judge recognised that the defence might wish to raise some matters in re-examination, but said he had to take a pragmatic approach and be fair to both sides. The trial had reached a stage at which he considered it ought to continue. The party who was going to be prejudiced was the Crown who would not be able to continue its cross-examination. Accordingly, the trial proceeded.
4.
The judge explained the applicant's absence to the jury in terms which made it plain that her absence was for good reason and that they should not hold it against her. There is no complaint about the way he dealt with that.
5.
Subsequent to the trial a psychiatric report has been obtained from a registrar in forensic psychiatry. The applicant seeks to rely on it as fresh evidence. The report is from Dr Anis Ahmed and dated 10th August 2012. It confirms that the applicant was suffering from a moderate, recurrent, depressive disorder. In our view, it does not materially add to the information available to the judge who accepted that the applicant was suffering from a mental condition which meant that she was unable to continue to attend the trial. We have read the report de bene esse. It is capable of belief and would have been admissible at the trial. We consider that in the circumstances it could not reasonably have been obtained at the time of the trial. However, it does not seem to us that Dr Ahmed's evidence would afford any ground for allowing the appeal because it does not materially add to the information available to the judge. It merely confirms it. Accordingly, there is no need for us to receive the statement as fresh evidence.
6.
As part of Mr Brunt's submissions to us this morning he has drawn attention to paragraph 38 of Dr Ahmed's report in which this applicant reported to Dr Ahmed that she found it difficult to cope with the number of allegations against her and that her she was unable to remember evidence as she felt that her memory was failing. That of course is a self-report which is passed on to the court through the report of Dr Ahmed. We have considered that, bearing in mind that it is a self-report from this applicant and bearing in mind that the judge was in a position to consider the applicant's evidence as given in chief and in cross-examination, and in the knowledge that a medical report had been submitted indicating the difficulties under which she was said to be labouring. In the circumstances we are not persuaded that the matter highlighted by Mr Brunt is something which affects the position or which would lead us to admit Dr Ahmed's report into evidence.
7.
The grounds of appeal assert that the applicant was genuinely ill and thus that the judge wrongly exercised his discretion to continue the trial since her absence was involuntary. The correct course, Mr Brunt urges, would have been a discharge of the jury with a retrial at a later date. Thus the applicant could have given her evidence in full and in particular would have had the opportunity to give clarifying evidence by way of re-examination. The Crown submits that the judge's ruling was correct. The applicant had been able to set out her case in full. It was the Crown who was prejudiced by her absence as it could not put the counter-case to her evidence based on the available documents. It was not unfair to the applicant to continue with the trial.
8.
The leading authority in this area is
R v Anthony Jones
[2002] 2 Cr.App.R 9
. In that case the House of Lords held that a judge had a discretion to start or continue a trial in a defendant's absence. Such discretion was to be exercised with great caution and with close regard to the overall fairness of the proceedings. A defendant inflicted by involuntary illness or incapacity would have much stronger grounds for resisting the continuation of the trial than a person who had voluntarily chosen to abscond. In the case of involuntary illness, it would rarely if ever be right to exercise a discretion in favour of continuing the trial, at any rate until the defendant was represented and asked that the trial should begin. In exercising the court's discretion, fairness to the defendant was of prime importance but fairness to the prosecution should also be taken into account. The judge should have regard to all the circumstances.
9.
A checklist of relevant matters was approved. Applying those to this case: the applicant's absence was involuntary; a short adjournment would not have assisted; a retrial would have been needed; the applicant continued to be represented by competent counsel with full instructions; there was no danger of the jury misinterpreting the reason for the applicant's absence or holding it against her. The events in the trial went back over many years but delay would not of itself be significant because much of the evidence was documentary. The trial was a substantial one and had no doubt been expensive to run. It had nearly reached its conclusion.
10.
All of those factors are uncontroversial. The only matter of controversy relates to unfairness. The applicant says she was prejudiced because she was not available for re-examination. The Crown says it was prejudiced because it was not able to test significant parts of the applicant's account in cross-examination.
11.
The question for us is whether the judge's decision was wrong and whether it had the result of making the applicant's trial unfair and subsequent conviction unsafe. Whilst the judge has a discretion, this court is able to examine the exercise of that discretion and will intervene if it appears that the judge's conclusion was clearly wrong or not reasonably open to him or may have resulted in injustice to the applicant. The situation confronting the judge was different to that which would have faced him had the applicant been ill at the start of the trial. By the time the applicant was absent from the trial it had advanced very substantially. The applicant had been able fully to test the prosecution evidence and to put forward her own explanations in evidence in chief. The judge was in a good position to assess the competing arguments as to prejudice. He clearly felt that the balance came down in favour of the Crown in terms of prejudice suffered. The judge was conscious of the involuntary nature of the applicant's absence and notwithstanding that concluded that the trial should continue.
12.
We do not consider that his ruling is one which can be impugned as wrong in the way contended for. He had a difficult ruling to make, but it was one which was properly open to him in all the circumstances. We therefore grant leave to appeal in relation to conviction as the matter was plainly arguable, but we dismiss the appeal.
13.
We turn then to sentence. It is argued that 32 months was simply too long for a woman of 44 without previous convictions and who has not committed a crime requiring public protection. The offending took place over a six year period. It covered three types of benefit or allowance and three different addresses. The applicant obtained around £27,000 of public money to which she was not entitled. During that time, some £270,000 passed through her bank or building society accounts, so there was no question of hardship being involved. The judge accurately described it as a professional fraud. In addition, there was a fraud for the benefit of a friend of hers and, having seen the Crown's evidence against her, she attempted to pervert the course of justice. The judge correctly identified the category of offence under the relevant Sentencing Guidelines Council's guideline for fraud carried out on multiple occasions in a professional manner over a significant period of time. The starting point of two years in that category is based on £60,000 obtained. This appellant obtained a lesser sum. The judge accordingly reduced the starting point to a term of 20 months within the range which starts at 18 months in order to cover the false claims for benefit. He added four months consecutively for the offences relating to the applicant's friend, and eight months consecutively to those sentences for the separate offence of perverting the course of justice. We do not consider that the sentences can properly be criticised in the circumstances. The available medical evidence confirms that the applicant's mental state would not have inhibited her ability to provide correct and truthful information to the authorities at the material time.
14.
There is, in our judgment, no arguable basis for interfering with this sentence. Accordingly, we refuse leave and the sentence application is dismissed.