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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Papworth & Anor v R [2007] EWCA Crim 3031 (12 December 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/3031.html Cite as: [2007] EWCA Crim 3031 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court at Chester
HHJ Dutton
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE ANDREW SMITH
and
MR JUSTICE OPENSHAW
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KAREN JOSEPHINE PAPWORTH ANTHONY LAURENCE DOYLE |
Appellant |
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- and - |
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THE CROWN |
Respondent |
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Mr R Spencer QC and Mr A Thomas for the Respondent
Hearing dates: 10 July 2007 + 11 October 2007
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Crown Copyright ©
LORD JUSTICE HOOPER :
"This has meant that Mr Bethel for the defence has found himself in the unusual position of submitting that the interview answers contain admissions or what he has called 'inculpatory' as well as exculpatory statements, pointing, in other words, to parts of the prosecution evidence which support the jury's finding of guilty. We cannot regard this as a satisfactory exercise, not least because it is almost impossible to conceive of any series of answers – i.e. something more than a bare denial – which cannot be regarded as containing some admissions of relevant fact as well as a statement of innocence and denial of guilt (the so-called 'exculpatory' part of a mixed statement). The question is how to identify the kind of interview which contains enough in the nature of admissions to justify calling it a 'mixed' rather than an 'exculpatory' statement. (Underlining added)
Mr Bethel submits that the test to be applied should be that a statement is a 'mixed' statement if it contains any admission of a fact which is significant in relation to the prosecution case. Mr Milford QC, on behalf of the prosecution, prefers to rely upon a passage in the judgment in Duncan which reads as follows:
'Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence'
We would hold that where the statement contains an admission of fact which are (sic) significant to any issue in the case, meaning those which are capable of adding some degree of weight to the prosecution case on an issue which is relevant to guilt, then the statement must be regarded as 'mixed' for the purposes of this rule. This is little, if any, different from paraphrasing the use of the word 'incriminating' in the passage in Duncan which we have already quoted. If the statement is of that nature, then the credibility direction is required and the whole statement can be regarded as evidence in the case. (Underlining added)
We return to the present case in order to consider what are alleged to be admissions in this particular interview, which result in the interview properly being regarded as 'mixed'. The particular passages relied upon are, first, four at pages 10, 11, 17 and 19, which were concerned with the preliminary correspondence where the appellant had been concerned with the obtaining of a quotation from 3iC, another from Arthur Andersen, and deciding which of those should be accepted. The effect of statements by the appellant was to indicate that he had been involved in those processes. He said at one stage that he had 'banged the table' with 3iC with regard to them obtaining this job, and it can be said that he thereby admitted that there was that degree of involvement so far as he was concerned in that stage of the AMT grant application. But any reading of those passages overall shows beyond doubt that what the appellant was saying was that although he was the Chairman, although he had played a Chairman's role in relation to these matters, although he had some little knowledge of the detail, he had no idea of the precise figures, he had no personal involvement in the administration of the scheme, and he was totally unaware of anything which could be called dishonesty. It seems to us that taking those passages first, in so far as they were admissions, they were admissions merely of what was obvious, and admissions which the appellant could hardly fail to make, even for the purposes of what he was saying, which was that he had no personal knowledge of the matters which were the basis subsequently of the charge.
Similarly the next passage referred to at page 23 of the interview involves an admission by him that he had been present at a particular meeting. But again he went on to say that he had no recollection of it: he had no detailed knowledge at the time. The theme of what he was saying was wholly exculpatory rather than otherwise so far as any matter relevant to the charge subsequently brought against him was concerned.
On page 24 he accepted that the 'buck in terms of decisions stops with me and I appreciate that'. That, it is submitted, is an admission that he had at least the responsibility of Chairman. To that extent it supports the prosecution case. But the same answer continues immediately as follows:
'But if I have been given or feel that I've been given misrepresentation of information, then that does not make me guilty of any crime. I have no intention to defraud the DTI.'
It seems to us that that is clearly to be regarded as an exculpatory answer. The limited admission contained in the first sentence is not the kind of admission which qualifies the nature of the answer.
The next matter referred to involves a passage in the interview which covers three to four pages. The police officer produced a manuscript document, which was not strictly admissible in evidence against the appellant, although a note on it appeared to have been addressed to him. It set out details of the scheme sufficient to show that there was dishonesty of the kind that was subsequently alleged. When asked about that document the appellant volunteered that he had found a copy of the same document in his own file and, what is more, it was a copy which contained a note written by himself. He went on to say:
'…I've obviously seen it because I've written a note on it, but it didn't register as being, it didn't alert me, it didn't ring any blinking bells. I wish it had. There are other people I pay to, you know, t have information and correlate…
I've admitted I've seen the wretched document and if I hadn't found that document through searching in my files, in Mandy Simons' memo files of which there are thousands of the things, I would have said to you 'Never seen it before'. Can I make that clear?
Whatever it implies, a document like that has not got a lot of meaning to me…'
At the same time, however, he accepted that what the document said was something in the nature of a plan which would be suspicious. He said:
'Yes, it does look like some sort of a plan almost, but it would mean nothing to me.'
The fact that he volunteered a copy of the document and admitted having seen it at the time were certainly admissions of fact which might perhaps be sufficient to bring this statement within the 'mixed' category. But overall, even those passages read in their context show that the appellant essentially was making an exculpatory statement. This was because not only was the emphasis placed upon his lack of understanding of the document, but in fact the comment which he had made was precisely that. His manuscript note was 'I don't understand this', plus some further reference to the figures.
It seems to us overall that what the appellant was saying in that interview, notwithstanding that he had volunteered the fact that he had seen the document, was that he did not understand the contents at the time any more than he did when these matters were put to him by the police. It seems to us that to regard that as anything other than an exculpatory statement, or as part of an overall denial, would not be correct. It seems also that little, if anything, was made of that particular answer and admission at the trial.
We ask ourselves the question already posed: were these limited admissions 'significant' in relation to the central issue in the case against the appellant, or incriminating in the sense already described, the issue being did he have knowledge of the dishonest grant application scheme? It seems to us that it is only possible to classify this as an exculpatory statement, notwithstanding the presence of those limited admissions of fact."
…you have… the financial aspect set out in those schedules, the entries both into and from accounts involving Mrs Papworth and involving Mr. Doyle.
The prosecution invite you to form what they regard is an inescapable inference from the evidence set out in those papers, that there are there regular substantial payments made to Karen Papworth by Anthony Doyle. No direct evidence of one person seeing another person handing it over, no record on paper of that kind, no such record could be pointed to by the prosecution but their case is that the timings of the entries in those forms is not a coincidence, the timings coincide because they form part and parcel of the same transaction.
Now you remember the points made in the other direction, that there are some where there's no coinciding at all, that there are long periods of substantial money having gone into Doyle Quays where there are no such entries of cash into any account. As I said, cash of course is a commodity which by its very nature doesn't carry a record of where it goes to unless it ends up in an account in which you can say so much in cash has gone into an account. These are all arguments and they're for your careful consideration.