Macmillan Cancer Support v Toogood [2022] EWCA Crim 633: the Court of Appeal clarify Momodou and explain the consequences of not having a fully pleaded Defence Statement

The Court of Appeal [Lord Burnett CJ, Mr. Justice Sweeney and Mr. Justice Cotter] last week handed down its ruling in Macmillan Cancer Support v Toogood [2022] EWCA Crim 633 in which Macmillan, the well-known charity and private prosecutor, successfully responded to an appeal against conviction. The convictions were of a pub manager for fraud and theft of monies belonging to Macmillan; the pub manager retained monies that were raised in connection with a ‘Go Sober’ charity event by regular customers and was deliberately misleading customers to donate money to Macmillan in order to keep the money for herself.

Following a 6-day trial, the defendant was convicted and sentenced to imprisonment of 18 months and 4 months, both suspended for 18 months, an unpaid work order for 100 hours and ordered to repay the stolen charitable donations back to Macmillan by way of compensation.

The Grounds

The Appellant appealed on three grounds:

Ground 1:  The summing up was prejudicial to the defence;

Ground 2:  The judge should have excluded the late evidence called by the Prosecution; and

Ground 3:  The prosecution (wrongly) showed a parts of the Appellant’s defence statement to key prosecution witnesses.

The Court rejected all three of the Appellant’s grounds of appeal in a judgment handed down by the Lord Chief Justice on 11 May 2022.

Ground 1 – the Trial Judge’s summing up.

The Appellant’s defence statement alleged that her ex-partner, Mr Fisher, was trusted with banking the charitable donations and that he therefore stole the money. Mr Fisher flatly denied in witness statement and oral evidence being given the money to pay in.

During the trial, a second strand defence emerged during cross-examination of the prosecutor’s investigator, namely that Mr Fisher may have paid it in and had either forgotten he had done so or was deliberately concealing that he had done so. When summing up the case, the judge observed:

“You might think, it’s a matter for you entirely, that she can’t really have it both ways. Either [Mr Fisher] stole it or it’s sitting in a bank account somewhere and it’s never gone missing at all. So, as I say, keep your eye on the ball.”

The law on judicial comment as a ground of appeal was considered in the Privy Council judgment of Byfield Mears v The Queen [1993] 1 W.L.R. 818 at page 822, in which their Lordships cited with approval the test set down by Lloyd L.J. in Reg v.Gilbey (unreported), 26 January 1990: ‘…that the judge’s comments went beyond the proper bounds of judicial comment and made it very difficult, if not practically impossible, for the jury to do other than that which he was plainly suggesting.’ The summing up must be so unbalanced or unfair as to call into question the safety of the conviction.

In the instant case, the Court stated that put simply, the central issue for the jury was whether the appellant gave the money to Mr Fisher or not. That was the ball which the judge reminded the jury to keep its eye upon and no more than a means of reminding them “to focus on the real issues.” Given Mr Fisher’s evidence rejecting he had ever received the money, the court found that there was no substance in this ground.

Ground 2 – the importance of a fully pleaded Defence

The Appellant’s second ground asserted that prosecution evidence, obtained, served and given during the trial as rebuttal, ought to have been excluded. The Court of Appeal upheld the trial judge’s ruling to admit the evidence as the issues to which the evidence was rebuttal ought to have been flagged in the defence statement, and they were not.

The Court of Appeal took the opportunity to remind practitioners of the content which must be included in a Defence Statement, as set out in section 6A of the Criminal Procedure and Investigation Act 1996 and supplemented by The Attorney General’s Guideline on disclosure [2020].

The Court found it striking that the defence statement did not take issue with the prosecution case that Macmillan had not receive the charitable donations; the defence statement should have made it clear if that was the case: R v. Rochford [2011] 1 Cr. App. R. 11. The court found that the reality is that the defence statement focused on what was always the main issue: did the appellant give the money to Mr Fisher to pay into the bank?

The essential reason why the trial judge concluded that the prosecution should be able to investigate the new defence strand was that it had not been flagged in the defence statement and it was thus reasonable to enable further inquiries to be made overnight. For the same reason it was proper to admit the evidence; the Court of Appeal agreed.

Ground 3 – Momodou clarified

The Appellant’s third ground asserted that the Prosecutor’s investigators had (wrongly) shared her defence statement in meetings with key prosecution witnesses, allowing them to tailor their evidence and warning them of potential cross-examination points.

In the well-known case of R v. Momodou and another [2005] 2 All ER 571, it was agreed that there had been inappropriate witness coaching with Judge LJ [at 61] stating:

“… This is the logical consequence of the well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness: see [authorities cited]. The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations … An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events. A dishonest witness will very rapidly calculate how his testimony may be “improved.”

The Appellant’s case here was different – it was not that prosecution witnesses colluded, but that the witnesses were informed by the investigators of the nature of the defence case so that they could make further statements. The meeting notes indicated that the witnesses had not been given the defence statement but, instead, a ‘short unobjectionable summary of the defence’. The Court found there was “nothing improper in that”. The investigators had merely complied with their duty to make reasonable lines of enquiry and “There is no question of an abuse of process; nor was a direction needed, of a sort that was necessary in the Momodou.

This case serves as a reminder that (i) the Defence have duties to serve a fully pleaded case, (ii) the Prosecutor is entitled to summarise that defence to witnesses in order to take further statements and (iii) should the defence seek to raise new matters during the trial process, the Prosecution will not be stopped from calling new late evidence to rebut that position.

John Ojakovoh, counsel was instructed at trial and in the appeal by Edmonds Marshall McMahon in this private prosecution for Macmillan Cancer Support.