||All England Reporter
|| All ER (D) 67 (May)
||Court of Appeal, Criminal Division
Gage LJ, Cox J and Sir Michael Wright
||Martin Hooper (assigned by the Registrar for Criminal Appeals) for the defendant.
||Andrew Wheeler (instructed by the Department of Trade and Industry) for the prosecution.
||5 May 2005
Criminal evidence and procedure - Trial - Direction to jury - Obtaining a money transfer by deception - Failure by defendant to disclose information to potential investors - Direction on dishonesty - Conviction unsafe.
In the instant case, the convictions for obtaining a money transfer by deception, based upon allegations that the defendant had dishonestly made representations that were false as the genuineness of a high-yield investment scheme, were unsafe. The judge had failed to give the second limb of the direction on dishonesty, namely, that the jury should consider whether the defendant himself had realised whether what he was doing was dishonest by the standards they had found under the first limb. The jury might, as a result of the judge's failure so to direct have used their view of what should have been disclosed as a determinative issue on the question of dishonesty. There was force in the submission that the judge's direction in response to the note had raised the question of the duty to disclose articles that the defendant had read that such schemes were not genuine, in the context of dishonesty. The judge should have made clear that the question of the duty of disclosure in law and what the defendant had understood his duty to be, were factors to be taken into account in consideration of the issue of dishonesty, in the light of the full direction on dishonesty. The court commented that, when judges receive questions from the jury, they should inform counsel of the whole of the note, not simply part.
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