COWAN & Anor, R. v [1995] EWCA Crim 8 (12 October 1995)

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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> COWAN & Anor, R. v [1995] EWCA Crim 8 (12 October 1995) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1995/8.html Cite as: [1995] 3 WLR 818, (1995) 3 WLR 818, (1996) Crim LR 409, [1995] EWCA Crim 8, (1995) 4 All ER 939, [1995] 4 All ER 939, (1996) 1 Cr App R 1, [1996] QB 373, (1996) QB 373

Case No. 95/2901/W4 95/3790/X3 & 95/4054/X3 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Date: Thursday 12 October 1995 B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND (Lord Taylor of Gosforth) MR JUSTICE TURNER and MR JUSTICE LATHAM __________________ R E G I N A - v - DONALD COWAN RICKY GAYLE CARMINE RICCIARDI __________________ Computer Aided Transcription by John Larking, Chancery House, Chancery Lane, London WC2 Telephone 0171-404 7464 (Official Shorthand Writers to the Court) __________________ MR MICHAEL MANSFIELD QC and MR M MAGARIAN appeared on behalf of THE APPELLANT COWAN MR MICHAEL MANSFIELD QC and MR C BAUR appeared on behalf of THE APPELLANT GAYLE MR B HURST appeared on behalf of THE APPELLANT RICCIARDI MR D JEFFREYS QC, MISS S FARR, MR BYRNE AND MR A RADCLIFFE appeared on behalf of THE CROWN ____________________ J U D G M E N T (As Approved by the Court) ____________________ Thursday 12 October 1995 THE LORD CHIEF JUSTICE: These three appeals raise important questions as to the proper interpretation and implementation of Section 35 of the Criminal Justice and Public Order Act 1994. The Section, which came into force on 10 April 1995, provides as follows: "(1) At the trial of any person who has attained the age of fourteen years for an offence, subsections (2) and (3) below apply unless -- (a) the accused's guilt is not in issue; or (b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence; but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence. (2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal without good cause to answer any question. 2 (3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question. (4) This section does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so. (5) For the purposes of this section a person who, having been sworn, refuses to answer any question shall be taken to do so without good cause unless -- (a) he is entitled to refuse to answer the question by virtue of any enactment, whenever passed or made, or on the ground of privilege; or (b) the court in the exercise of its general discretion excuses him from answering it. (6) Where the age of any person is material for the purposes of subsection (1) above, his age shall for those purposes be taken to be that which appears to the court to be his age. (7) This section applies -- (a) in relation to proceedings on indictment for an offence, only if the person charged with the offence is arraigned on or after the commencement of this section; (b) in relation to proceedings in a magistrates' court, only if the time when the court begins to receive evidence in the proceedings falls after the commencement of this section." -3- It is clear that the section alters and was intended by Parliament to alter the law and practice applicable when a defendant in a criminal trial does not give evidence. The issues raised are - - (1) whether the discretion to draw inferences from silence under section 35(3) should be open in the generality of cases or only exceptionally and (2) if it is to apply in a jury trial, what directions should the judge give? For all the appellants, it is argued that section 35 either breaches or verges on breaching long established principles. Although, therefore, it is conceded that some effect must be given to the enactment, it should be applied only very exceptionally and not in the general run of cases. Mr Mansfield QC, supported by Mr Hurst, submits that the section constitutes an infringement of the defendant's right of silence. By permitting a court or jury to draw an adverse inference should the defendant remain silent at trial, it is submitted that his free choice is inhibited. It should be made clear that the right of silence remains. It is not abolished by the section; on the contrary, subsection (4) expressly preserves it. As to inhibitions affecting a defendant's decision to testify or not, some existed before the 1994 Act. On the one hand, a defendant whose case involved an attack on the character of a prosecution witness could well be inhibited from giving evidence by fear of cross-examination as to his own record. On the other hand, in certain cases, judges were entitled to comment -4- on the defendant's failure to testify (Martinez-Tobon, 98 Cr App R 375). Arguably, this put pressure on a defendant to give evidence. Even in a case calling only for the classic Bathurst direction (52 Cr App R 251), a defendant might be inhibited from remaining silent for fear the jury would hold it against him that he chose to leave the prosecution evidence uncontradicted. It is further argued that the section alters the burden of proof or "waters it down" to use Mr Mansfield's phrase. The requirement that the defendant give evidence on pain of an adverse inference being drawn is said to put a burden on him to testify if he wishes to avoid conviction. In our view that argument is misconceived. First, the prosecution have to establish a prima facie case before any question of the defendant testifying is raised. Secondly, section 38(3) of the Act is in the following terms: "A person shall not .... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in .... section 35(3)...." Thus the court or jury is prohibited from convicting solely because of an inference drawn from the defendant's silence. Thirdly, the burden of proving guilt to the required standard remains on the prosecution throughout. The effect of section 35 is that the court or jury may regard the inference from failure to testify as, in effect, a further evidential factor in support of the prosecution case. It cannot be the only factor to justify a conviction and the -5- totality of the evidence must prove guilt beyond reasonable doubt. We therefore reject the two premises relied upon by Mr Mansfield to support his submission that section 35 should only be invoked in exceptional cases. In any event, whatever the jurisprudential merits of the two premises, the plain words of the section simply do not justify confining its operation to exceptional cases. Section 35(1) deals with exceptional situations in which subsections (2) and (3) are not to be invoked. Otherwise, the section is in terms of general application. Indeed, subsection (2) is in mandatory terms. In cases other than those in subsection (1) "the court shall satisfy itself etc." It is true that the operative subsection (3) as to the finding of the court or verdict of the jury is in permissive rather than mandatory terms. Accordingly, the judge has a discretion as to whether and in what terms he should advise a jury for or against drawing inferences. In what circumstances, then, should the court or jury be prepared to draw an adverse inference? Mr Mansfield's answer is: "only exceptionally where there is no reasonable possibility of an innocent explanation for the defendant's silence." He suggested a number of possible reasons for silence at trial which may be consistent with innocence. They were: (1) a weak case barely surviving a submission of no case; (2) other defence evidence contradicting prosecution evidence; (3) if the defendant is nervous, inarticulate or unlikely to perform well; -6- (4) if the defendant's medical condition is abnormal although not within section 35(1); (5) fear, duress or the protection of others; (6) previous convictions of the defendant where he is liable to be cross-examined on them; (7) a "mixed situation" -- i.e. where the 1994 Act was not in force at the time of the defendant's arrest or interviews but was in force at the time of the trial. If any of these reasons or excuses exist or may do so, it is submitted the court should not draw, or the jury should be directed not to draw, an adverse inference. Moreover, Mr Mansfield suggests such reasons or excuses could properly be advanced by defending counsel without the need for evidence. The breadth of these propositions is patently inconsistent with the scheme and plain words of section 35. To use the inevitable cliché, they would drive a coach and horses through the statutory provisions. Mr Mansfield's approach frankly was that section 35 is so at variance with established principle, that its operation should be reduced and marginalised as far as possible. We cannot agree. In particular, we should deal specifically with two of the suggested" good reasons". First, the general proposition that a previous criminal record upon which a defendant could be cross- examined (if he has attacked prosecution witnesses) is a good reason for directing a jury that they should not hold his silence against him, would lead to a bizarre result. A defendant with convictions -7- would be in a more privileged position than one with a clean record. The former could avoid submitting himself to cross-examination with impunity; the latter could not. We reject that proposition. Secondly, in what he calls "a mixed situation", Mr Mansfield argues that where the 1994 Act was not in force at the time of arrest or interview, the defendant may have remained silent then, without realising that his silence later at trial could be held against him. Had he realised that, he might have given his story in interview and left his counsel at trial to submit he had already given his account and could not add to it. However, apart from the unreality of such a scenario, subsection (7)(a) clearly contemplates that proper inferences from silence at trial can be drawn in just such a situation. We accept that apart from the mandatory exceptions in section 35(1), it will be open to a court to decline to draw an adverse inference from silence at trial and for a judge to direct or advise a jury against drawing such inference if the circumstances of the case justify such a course. But in our view there would need either to be some evidential basis for doing so or some exceptional factors in the case making that a fair course to take. It must be stressed that the inferences permitted by the section are only such "as appear proper". The use of that phrase was no doubt intended to leave a broad discretion to a trial judge to decide in all the circumstances whether any proper inference is capable of being drawn by the jury. If not he should tell them so; otherwise it is for the jury to decide whether in fact an inference should properly be drawn. -8- By way of guidance, a specimen direction has been suggested by the Judicial Studies Board in the following terms: "The defendant has not given evidence. That is his right. But, as he has been told, the law is that you may draw such inferences as appear proper from his failure to do so. Failure to give evidence on its own cannot prove guilt but depending on the circumstances, you may hold his failure against him when deciding whether he is guilty. [There is evidence before you on the basis of which the defendant's advocate invites you not to hold it against the defendant that he has not given evidence before you namely.... If you think that because of this evidence you should not hold it against the defendant that he has not given evidence, do not do so. But if the evidence he relies on presents no adequate explanation for his absence from the witness box then you may hold his failure to give evidence against him. You do not have to do so] What proper inferences can you draw from the defendant's decision not to give evidence before you? If you conclude that there is a case for him to answer, you may think that the defendant would have gone into the witness box to give you an explanation for or an answer to the case against him. If the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence. It is for you to decide whether it is fair to do so". (The words in brackets are to be used only where there is evidence). We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt or add to it in the particular circumstances of an individual case. But there are -9- certain essentials which we would highlight. 1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the required standard is. 2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. The right of silence remains. 3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act. 4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant's silence. -10- (5) If, despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant's having no answer or none that would stand up to cross-examination, they may draw an adverse inference. It is not possible to anticipate all the circumstances in which a judge might think it right to direct or advise a jury against drawing an adverse inference. Nor would it be wise even to give examples as each case must turn on its own facts. As Kelly LJ said in McLernon 1990, 10 N.I.J.B. 91 (a Northern Ireland case concerning provisions of Article 4 of the Criminal Evidence (Northern Ireland) Order 1988, which are in terms similar to but stronger than those of section 35), at page 102: ".... the court has then a complete discretion as to whether inferences should be drawn or not. In these circumstances it is a matter for the court in any criminal case (1) to decide whether to draw inferences or not; and (2) if it decides to draw inferences what their nature, extent and degree of adversity, if any, may be. It would be improper and indeed quite unwise for any court to set out the bounds of either steps (1) or (2). Their application will depend on factors peculiar to the individual case". Kelly LJ was considering a trial without a jury, but we regard his remarks as applicable equally to the directions or advice a judge needs to give in his summing up to a jury. -11- We were referred to the opinion of the Commission of Human Rights in John Murray v UK 18 EHRR, CD.1. There, similar arguments to those advanced here were considered in relation to a 'judge alone' trial from Northern Ireland said to involve breaches of Article 6 of the European Convention on Human Rights. We stress that decisions of the Commission and indeed those of the European Court of Human Rights itself are not binding upon this court. They are of assistance to resolve any ambiguity in our domestic law, but here we find no ambiguity in section 35. Nevertheless, the Commission's observations at page 9 are of interest. Dealing with Article 4 of the 1988 Northern Ireland Order, the Commission said: "Inferences from a failure to give explanations or evidence in court only become permissible under the Order when there is a prima facie case, i.e. the prosecution has submitted material which might lead to the conviction of the accused. It is apparent that, if the prosecution fails to make such a case to the court's satisfaction, the question of inferences will never arise. Moreover, the Commission is satisfied that the burden of proof remains on the prosecution throughout to prove an accused's guilt beyond a reasonable doubt. However, where a prima facie case has been presented to the court, certain conclusions may always be drawn from the failure of the accused to rebut in defence the evidence against him. Further, the Commission notes that a judge is not required to draw inferences and may only draw such inferences, and such degree of inferences, as may be proper". In a partially dissenting opinion, Mr Nicholas Bratza sought to distinguish 'judge alone' cases where the judge's reasons for drawing inferences could be reviewed from jury cases where they -12- could not. However, juries in criminal trials are required to draw inferences in numerous situations and provided that the judge gives them proper directions, we see no reason why the passage quoted from the Commission's opinion above should not apply equally to jury trials. We wish to stress, moreover, that this court will not lightly interfere with a judge's exercise of discretion to direct or advise the jury as to the drawing of inferences from silence and as to the nature, extent and degree of such inferences. He is in the best position to have the feel of the case and so long as he gives the jury adequate directions of law as indicated above and leaves the decision to them, this court will be slow to substitute its view for his. We should also refer to one ground of appeal which was not developed in argument by Mr Mansfield. It complained that paragraph 3 of the Practice Direction (Crown Court: Defendants' Evidence) [1995] 1 WLR 657, which prescribed the words to be used by a judge on being informed that the accused does not intend to give evidence, breached professional privilege. The form of words is as follows: "Have you advised your client that the stage is now being reached at which he may give evidence and, if he chooses not to do so or, having been sworn, without good cause refuses to answer any question, the jury may draw such inferences as appear proper from his failure to do so?" The contention was that to ask counsel what he has advised his client breaches professional privilege. In our view there is no -13- merit in this contention. Section 35(2), as already observed, places a mandatory requirement on the court to satisfy itself (in the case of proceedings on indictment, in the presence of the jury) of the matters set out there. The only way the court can do that is to ask either the defendant or his counsel. To by-pass counsel and address the defendant directly in the presence of the jury would, we apprehend, give the appearance of greater pressure on the defendant and a more inquisitorial role for the judge than simply to enquire of counsel whether the statutory position has been explained to his client. The subject-matter of the enquiry does not concern anything confidential. We also reject Mr Mansfield's submission that the form of words in paragraph 3 of the Practice Direction could be replaced by a simple enquiry of the defendant's advocate as to whether the defendant has been made aware of the provisions of section 35. The object of that would be to avoid the jury's hearing what the possible consequence of not giving evidence may be. However, section 35(2) clearly contemplates that the jury should hear the terms of the section at that stage of the trial. Finally, we wish to make it clear that the rule against advocates giving evidence dressed up as a submission applies in this context. It cannot be proper for a defence advocate to give to the jury reasons for his client's silence at trial in the absence of evidence to support such reasons. We now proceed to apply the principle set out above to the three instant appeals. -14- R v COWAN: This appellant was convicted on 21 April 1995 at Kingston- on- Thames Crown Court of unlawful wounding. He was acquitted on the alternative count of wounding with intent. On 5 May 1995 he was convicted of assault occasioning actual bodily harm and was sentenced to 30 months imprisonment for the unlawful wounding and 18 months consecutive for the assault occasioning actual bodily harm, making four years in all. On the wounding charge, the case for the Crown was that the appellant assaulted one Taylor outside a public house after a fracas inside the premises. Two witnesses identified the appellant as the assailant. The defence was that the appellant was not the assailant, but another member of the group he was in was guilty of the wounding. The appellant did not give evidence but two witnesses were called on his behalf to substantiate his case. In the course of cross-examining the victim Taylor, the appellant's counsel not only put in the alternative that Taylor was mistaken or had deliberately sought to frame the appellant but also put to Taylor his previous convictions. The judge was urged not to direct the jury as to their right to draw inferences from the appellant's silence because that silence was necessary to prevent his previous record being put to him. The judge rejected that submission. In our view he was right to do so. However, there are criticisms of the trial judge's directions to the jury which preceded the issue by the Judicial Studies Board of the specimen direction. Mr Mansfield alleged -15- there were three defects. First he claimed that the judge blurred the burden of proof by his directions to the jury as to the drawing of inferences from silence. This complaint in our view is unfounded. The judge gave the normal direction on burden and standard of proof. Nothing he said about drawing inferences from silence in our view qualified that direction. However, we do consider that there is merit in the other two complaints. The judge failed to tell the jury that they could not infer guilt solely from silence. Secondly, he did not warn the jury that the condition for holding a defendant's silence at trial against him was that the only sensible explanation for that silence was that he had no answer to the case against him or none that could have stood up to cross-examination. This was a case involving a clear conflict of evidence. Strong feelings had been aroused not only by the incident outside the public house but by the earlier fracas within it. We consider that without the omitted directions the jury may have attached undue importance or weight to the appellant's absence from the witness box. Accordingly, we are not sure that the verdict can be regarded as safe and satisfactory and the appeal must be allowed. We should add that we have sympathy with the judges in both the present case and the case of R v Gayle who had to cope with the new provisions shortly after their introduction and without guidance. R v GAYLE: On 18 May 1995, at the Central Criminal Court, this appellant was convicted of doing an act tending and intended to -16- pervert the course of public justice. He was sentenced to 9 months imprisonment. It was the prosecution case that on 2 February 1995 the appellant went to a public house in Harrow from which he had previously been barred. He threatened to assault the landlord if the latter gave evidence against him on a charge of criminal damage for smashing a window at a hairdresser's shop opposite the public house on 25 January. The publican gave evidence that the appellant made threats as to what would happen to him if he gave evidence. The threats culminated in the expression: "Drop the case or you are dead". The appellant did not give evidence, nor did he call any on his own behalf. Complaint is made, first, that section 35 ought not to have been invoked by the judge at all or, putting it another way, the judge ought to have directed the jury not to draw any adverse inference from the appellant's silence. The reason put forward for this is that the appellant had previous convictions which inhibited him from giving evidence. We have already indicated that we reject this proposition. However, there are a number of criticisms of the judge's summing up. He did not say to the jury in terms that the defendant had the right to remain silent, that it was his choice. That was compounded by a passage at page 3E to 4A of the summing up in which the judge seemed to imply that the right of silence had gone. He said: "Mr Baur addressed you at some length as to the fact that the law has recently changed in this regard and indeed changed, or the change in the law came into effect, after the defendant had -17- been arrested on this charge where, at that time it was the position that every defendant was entitled, if they wished not to answer any questions to the police, no comments, say nothing if they wished to do so. That could not be taken in any way against them. It was their right to silence. As you have been told and you, no doubt, may have read it at the time, that law was very recently changed and the caution, indeed, now is quite different". It is true that after that the judge directed the jury only along the lines of the Bathurst direction, but he had earlier, at page 3, told the jury of their right to draw inferences in the following terms: "The defendant himself has not gone into the witness box to give evidence. He would obviously be questioned and cross-examined as to the details of what occurred. That in itself is not to be taken by you as proof of guilt. But as you have been told the position is now that where that is the situation then it is a matter for you to draw such inference as you consider you can safely draw from the fact of his not giving evidence. There is no more, it does no more than that". There was no direction that the jury should consider drawing an adverse inference only if they consider there was a case to answer. Nor was there any direction that no adverse inference should be drawn unless the only sensible explanation for the defendant's silence was that he had no answer or none that could stand up to cross-examination. In view of these shortcomings, we consider the summing up was defective and the appeal must be allowed. -18- R v Carmine RICCIARDI: On 15 June 1995, at Wood Green Crown Court, this appellant was convicted of attempted theft. On 16 June he was sentenced to 12 months imprisonment. He appeals against conviction by leave of the single judge who also referred his application for leave to appeal against sentence to the full court. Two Royal Bank of Scotland cheques and their counterfoils were stolen from a company cheque book in an office in November 1994. One was made out in favour of the appellant for £59,625. The signatures of the Company signatories were forged. The cheque was paid in at Hatton Garden Lloyds Bank Branch by someone using a pay- in slip from the appellant's pay-in book. On the same day, the appellant visited his own branch of Lloyds Bank in Hertford and said the cheque was being paid in to his personal account. He said he wished to have the money in cash as he was going to pay off an overdraft at another bank and did not want that bank to know where the money came from. The Hertford branch found that the cheque was stolen and the appellant was told this. The appellant gave a story to the police which he transmitted by fax. In it he said he had no knowledge whatsoever of where the cheque originated and the first time he had seen it and discovered who was the drawer was when he was given a copy by the police. He was arrested and shown the original cheque in a plastic folder but was not given the opportunity to handle it or left alone with it. His fingerprints were found on the cheque. The appellant did not give evidence. He was a man of -19- previous good character and he called a character witness. In this case the trial judge followed the Judicial Studies Board Specimen Direction in summing up to the jury. He is criticised by Mr Hurst on two grounds. Principally, it is submitted that the judge should have told the jury there were many possible reasons for a defendant not giving evidence which could be consistent with innocence. No evidence or material of any kind was led or put before the judge to explain the defendant's silence. Mr Hurst tells us there was a reason but it was so sensitive that it could not be divulged even to the judge in camera or in writing. It was not divulged to this court. It is obvious that that kind of enigmatic assertion cannot amount to a good reason for a judge to direct or advise a jury not to draw an adverse inference from a defendant's silence. If it could amount to good reason then section 35 could be circumvented at the defendant's will. Nor do we think it incumbent on a judge or appropriate for him to embark or invite the jury to embark on possible speculative reasons consistent with innocence which might theoretically prompt a defendant to remain silent. Accordingly, that ground of appeal fails. The other ground is, if possible, even more tenuous. The learned Recorder told counsel how he would direct the jury pursuant to section 35. He did what he promised. The complaint is however that he "went further than he said he would" because towards the end of the summing up, in summarising the points for the prosecution (after which he summarised those for the defence) he said: -20- "There is no evidence from the defendant as to when he did touch the cheque". The Recorder then referred to a number of other points in the case which were unexplained. We can see nothing wrong in what he did. In directing the jury on the law he followed the course he had agreed with counsel. He was perfectly entitled in reviewing the facts and arguments to summarise the points made by each side. This appeal against conviction must therefore be dismissed. (Mr Hurst addressed the court in relation to Ricciardi's sentence) THE LORD CHIEF JUSTICE: We now deal with the application for leave to appeal against sentence in the case of Ricciardi. We grant leave. It is submitted to us by Mr Hurst that the sentence of 12 months imprisonment imposed by the Recorder was unduly harsh. Primarily Mr Hurst submits that there ought not to have been a prison sentence, but if that argument fails he argues for a lesser sentence than that imposed. The matters he particularly urges are that the appellant is aged 37, with no previous convictions -- indeed, a positively good previous record. There are references as to his good character and as to his charitable work. It is suggested that the offence which was committed was -21- one which was bound to have been discovered. The discovery of what he was intending to do resulted in the offence being one of attempt rather than the full offence of theft. Nevertheless, we take the view that this was a serious matter. An elaborate story was conjured up by the appellant to seek to escape detention for what was a blatant fraud involving some £60,000 and the forgery of a cheque. The amount of money involved puts this case in a different league from first offences of minor thefts or attempted thefts. It is said that the appellant was in financial difficulties at the time. But the true position seems to be that he was a man of substance. The only difficulty he had was that his assets were not readily realisable. It cannot be emphasised too strongly that someone who is minded to commit an offence of this kind simply to escape from some temporary financial embarrassment must expect a prison sentence. In our view the Recorder was correct to impose one. However, bearing in mind that this was a first offence, a single lapse and the good character which has been urged on his behalf, we consider that 12 months imprisonment was excessive. We propose, therefore, to quash that sentence and to substitute a sentence of eight months imprisonment, the effect of which we expect will be that he can now be released. ________________________________ -22-

England and Wales Court of Appeal (Criminal Division) Decisions