Obtaining services by deception - defendant dishonestly obtaining credit card and opening bank account - offence committed, even though no charge made for issuing card or opening account, since services obtained on understanding that benefit would be paid for

R v Sofroniou: CA (Lord Justice May, Mr Justice McKinnon and Judge Jeremy Roberts QC):18 December 2003

The defendant used the names of other people to deceive or attempt to deceive banks into providing him with banking services and credit card companies into providing him with credit cards.

There was no charge for opening the bank accounts or issuing of the credit cards but at least one account became overdrawn and one card was used in excess of its credit limit.

The defendant was convicted, among other things, of obtaining services by deception, contrary to section 1 of the Theft Act 1978.

On appeal against conviction, questions arose, among other things, as to the ambit of the words 'on the understanding that the benefit has been or will be paid for' in section 1(2).

Michael Cousens (assigned by the Registrar of Criminal Appeals) for the defendant; John Causer (instructed by the Crown Prosecution Service, Reading) for the Crown.

Held, dismissing the appeal, that 'understanding' in section 1(2) was intended to cover situations where nothing explicitly was said about payment but there was a common understanding that the services would not be provided gratuitously; that the sub-section envisaged a putative objective mutual understanding as to payment on the assumption that the inducement was not dishonest; but that an understanding as to payment under the section would not be made out unless there were sufficient understanding that an identifiable payment had been or would be made by or on behalf of the person receiving the services to the person providing them; that inferred indirect commercial advantages to a bank or credit-card provider were not capable of providing the necessary ingredient as to payment, although an inference could be drawn from evidence that a defendant had obtained the services of a bank account that he dishonestly intended to overdraw.

(WLR)

Restraint order - sum suspected of deriving from proceeds of crime paid into London bank account - Indian government obtaining restraint order over sum - jurisdiction to make order

Government of India v Quattrocchi: CA (Lord Phillips of Worth Matravers Master of the Rolls, Lord Justice Buxton and Lord Justice Keene):20 January 2004

The appellant, an Italian citizen, lived in India.

In 1990, in relation to the government artillery contract awarded in 1986 to Bofors, the Indian government alleged conspiracy to cheat and corruption against certain people.

The Indian government issued a letter of request to Switzerland, where apparently the appellant apparently first took part in the proceedings.

In 1999, the appellant was accused of conspiracy to cheat and corruption but not formally charged.

In June 2003, the appellant transferred 3 million to a London bank.

At the Indian government's request, the UK authorities sought a restraint order prohibiting the appellant from dealing with that sum, which was made.

The appellant appealed.

James Lewis QC and Hugo Keith (instructed by Corker Binning) for the appellant; Andrew Mitchell QC and Stephen Hellman (instructed by the Crown Prosecution Service) for the government of India.

Held, dismissing the appeal, that a restraint order prohibiting a person from dealing with specified property could be made at the request of a designated country under part VI of the Criminal Justice Act 1988 as amended where the conditions in section 76 of the Act were met; that India was a designated country; that section 76(1)(c) could be satisfied where section 76(1)(a) and (b) were met, and there was jurisdiction to consider a confiscation order at the conclusion of the foreign court's criminal proceedings; and that it was immaterial that the designated country's domestic law also permitted free-standing confiscation proceedings which would not satisfy section 76.

Defendant not giving evidence - suggestions put to but not accepted by prosecution witnesses and co-defendant's evidence adopted - correct to direct jury to draw such inferences as appeared proper from failure to mention those matters in police interview

R v Webber: HL (Lord Bingham of Cornhill, Lord Slynn of Hadley, Lord Hobhouse of Woodborough, Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe):22 January 2004

Suggestions were put on behalf of the defendant at his trial to prosecution witnesses, which they did not accept.

The defendant, who did not give evidence, adopted evidence given by a co-defendant.

The judge observed in his summing-up to the jury that the matters in question had not been mentioned by the defendant when interviewed by the police, and he directed them pursuant to section 34 of the Criminal Justice and Public Order Act 1994 that they might draw such inferences from his failure to do so as appeared proper.

The defendant was convicted and appealed, contending that the judge had misdirected the jury in relation to section 34.

The Court of Appeal (Criminal Division) dismissed the appeal.

He appealed.

Michael Shorrock QC and Robin Denny (instructed by Tilly Bailey & Irvine, Hartlepool) for the defendant; Aftab Jafferjee, Sarah Whitehouse and Caroline Goodwin (instructed by the Crown Prosecution Service, London branch 3, casework directorate) for the Crown.

Held, dismissing the appeal, that 'fact' in section 34(1)(a) of the 1994 Act covered any alleged fact which was in issue and put forward as part of the defence case; that section 34 potentially applied if the defendant advanced at trial any pure fact or exculpatory explanation or account which he could reasonably have been expected to advance earlier if true; and that he relied on a fact or matter in his defence when he gave or adduced evidence of it, when he put a specific and positive case to prosecution witnesses (whether or not the suggestions were accepted) rather than merely questions designed to test the witnesses' evidence, and also when he adopted a co-defendant's evidence.

(WLR)