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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 >> Foxley, R. v [2016] EWCA Crim 798 (26 May 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/798.html Cite as: [2016] EWCA Crim 798

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 26 May 2016

1. LORD JUSTICE DAVIS: This appeal, together with a renewed application for which we grant leave, raises two particular points. First, it is said that the representation of the appellant, Caroline Foxley, at her trial on the part of her counsel was inadequate and incompetent to such an extent that the resulting convictions are unsafe. Second, it is said, with regard to one count on the indictment, that the judge failed properly or correctly to instruct the jury as to the necessary elements of section 111A(1A) of the Social Security Administration Act 1992; and in consequence the conviction, on that count at least, is unsafe.
2. The facts giving rise to these challenges are as follows. The appellant was tried at the Gloucester Crown Court before Assistant Advocate General Judge McGrigor and a jury. The trial was a short one: it started on 21 October 2014 and finished on 23 October, when unanimous verdicts of guilt, after a relatively short retirement, were returned by the jury.
3. The appellant had faced trial on a four-count indictment. The first count as amended was a count of dishonestly failing to give prompt notification of a change of circumstances contrary to section 111A(1A) of the Social Security Administration Act 1992. The particulars of the offence were that "Caroline Ann Foxley on or about 19 May 2007 for the purpose of obtaining Benefit dishonestly failed to give prompt notification of a change of circumstances affecting her entitlement to Benefit in that she failed to declare capital assets in excess of the upper prescribed limit". Counts 2, 3 and 4 were counts of dishonestly making a representation known to be false contrary to section 2 of the Fraud Act 2006: the particulars of those offences relating to claims of various kinds of benefit in September 2007, September 2008 and March 2009.
4. At the trial, the Crown was represented, as it has been before us, by Mr Stephen Mooney of counsel. The appellant was represented at trial by Mr David Leathley of counsel.
5. The circumstances in which the appellant came to be prosecuted were these. It was the prosecution case that the appellant had dishonestly obtained housing benefit, council tax benefit and made an income support claim and other such claims in circumstances where she had no entitlement to benefits. The position was that on 13 March 2001 title to a residential property in Gloucestershire called Depot Lodge was transferred from a company called Iansil Limited to the appellant. It appears that that company was a company which had been controlled by the then partner of Ms Foxley, Mr Kurt Mayer, who was also the father of her two children, although at that time the relationship seemed to have been fragile and perhaps had come to an end.
6. Following on from the transfer of that property into the name of the appellant, on 16 February 2004 title was transferred out of the appellant's sole name and into the joint names of her and a Mr Paul Watson. It appears that Mr Watson was a man with whom the appellant had entered into a relationship at the time. The proposal was that they spend considerable time and money doing up Depot Lodge. Indeed, in due course, it appears that Mr Watson took out a charge over the property to protect his investment in it. A mortgage was also taken out in a significant sum. Payments on that were not met. It appears that the mortgage application had been essentially founded on Mr Watson's income declaration. However, the mortgage payments were not kept up after the relationship between him and the appellant had failed.
7. Repossession proceedings were taken by the Building Society. On 16 May 2007 a cheque for just over £306,000, representing what remained of the proceeds of sale after deductions, and presumably also after the relevant payment to Mr Watson, was sent by the repossessing institution's solicitors to the solicitors for the appellant. Those solicitors passed on a cheque in that sum to the appellant herself on 19 May 2007. Very shortly thereafter, this cheque was paid into an account in the appellant's name held with Habibson's Bank in London. A year later, and after a number of payments had been made out of that account, the appellant signed an instruction asking that the balance of some £200,000 be transferred from the account with Habibson's Bank in London to an account of Habibson's Bank in Zurich. Those monies were transferred on 18 March 2008.
8. The essence of the prosecution case at trial was that, on receipt of the sum of £306,000-odd in May 2007, the appellant knew that she had no further entitlement to any benefits, but dishonestly failed to notify the authorities of the change in her circumstances evidenced by her receipt of this cash sum. The actual amount of benefits claimed were for a period overall of between 30 March 2007 to 11 March 2009 and totalled over £20,000, representing income support, Jobseeker's Allowance, housing benefit and council tax benefit. She was charged accordingly.
9. She was interviewed on a number of occasions. Her account in interview was to emphasise that she had for many years been in a relationship with Kurt Mayer. He was the father of her children and it was he who had originally bought and paid for Depot Lodge. It appears that there were some question marks, to say the least, that might be raised about Mr Mayer's business activities; he was mainly based abroad and had various international dealings of one kind or another. In due course, she was to say that she had later met Mr Watson and had given Mr Watson a share of the property. That had very much upset Mr Mayer, who was very angry about what had happened. However, subsequently, the relationship between her and Mr Watson had ended and Mr Mayer came back, to an extent, into her and her children's lives. She was to say that they had been unable to keep up the payments on Depot Lodge, and thus it was that the property had to be sold with payment off of the mortgage monies and the monies due to Mr Watson. In the course of her interviews, the appellant did not see fit to mention that she had paid the monies which she had received into Habibson's Bank.
10. Some time was spent at trial dealing with a purported receipt said by the prosecution to have been forged (although the appellant denied having been party to any forgery, if forgery it was), which was designed to indicate that, as the appellant had said, she had sought to pay the £306,000-odd to Mr Mayer, but that he had refused to accept it; and indeed she was subsequently to say that the payment of the balance of £200,000, when remitted to Habibson's Bank in Zurich, was done at the behest of Mr Mayer.
11. The overall position of the appellant at trial thus was that she had never regarded the £306,000-odd as her money. Her case was that the property initially had been bought by Mr Mayer and belonged to Mr Mayer, and thereafter it was Mr Mayer's. Accordingly, she never regarded the proceeds of sale as received by her as belonging to her (that is to say, Caroline Ann Foxley). On the contrary, she regarded them as belonging to Mr Mayer, or at least they were to be used for the benefit of the two children of the relationship. Evidence was also given to the effect that Mr Mayer was capable of being forceful and dominating in his instructions to her.
12. That, then, was the essence of the defence case as advanced at trial. Accordingly, it was for the jury to assess whether the prosecution had made out its case in this regard. Given that the actual facts underlying the matter in terms of the receipt of the £306,000 were barely capable of dispute, it was highly important to the defence that the appellant's account of events was accepted as credible: namely that she genuinely believed or may have believed that the money did not belong to her but belonged to Mr Mayer and/or the two children of the relationship. If that was so then there would have been no fraud and there would have been no change in her circumstances affecting her entitlement to benefit of which she had knowledge.
13. As presented at trial, the prosecution case was almost entirely documentary, albeit such documentation and the conclusions said to arise from such documentation were the subject of the oral evidence of Emma Cathcart, an employee of the Cotswold District Council, with considerable experience of benefit claims. The only other witness to give evidence was the appellant herself. The reality was, as we have indicated, that the outcome of the case hinged on the jury's assessment of the appellant's credibility.
14. In view of the appellant's own dealings with the property before it was repossessed, including, amongst other things, her giving Mr Watson a half share in the property, there were clear problems for the defence in seeking to persuade the jury that the appellant had throughout believed that the property belonged to Mr Mayer and/or the children. Moreover, the subsequent dealings by the appellant with the money placed in the Habibson's Bank also posed clear potential difficulties to the defence, coupled with evidence of payments being made therefrom for the purpose of, amongst other things, the appellant paying school fees to expensive private schools in respect of her two children. Yet further, the defence had the difficulty of the fact that the appellant had entirely failed to mention the payment of the monies to the Habibson's Bank accounts in the course of her interviews. As against that, the defence were able to point to the previous good character of the appellant; and of course they were in a position to stress that the burden of proof rested on the prosecution.
15. Mr Wilmott of counsel, who now represents the appellant for the purposes of this appeal, advanced sustained criticisms of the conduct of the defence case on the part of Mr Leathley. Mr Wilmott focussed on the cross-examination conducted by Mr Leathley of Miss Cathcart and on his closing speech to the jury. This ground is based on what is said to be the wholly incompetent and misguided conduct of the case by counsel.
16. The fundamental legal principle applying to this kind of challenge is clear. That is whether the incompetence of the representative and the way in which the case was conducted by that representative is such as to make the resulting conviction unsafe: see R v Day [2003] EWCA Crim 1060. In this regard, enquiry has to be made as to whether the incompetence led to identifiable errors which rendered the trial process unfair and the conviction unsafe. A recent illustration of the application of the relevant principle can be found in R v Ekaireb [2015] EWCA Crim 1936. That was a case which focussed on criticisms of leading counsel's closing speech at the end of a murder trial. A constitution of this court accepted that the speech was "ill-judged, patronising and contained inappropriate attempts at humour". However, it was judged that the speech had in fact covered the relevant points and had a structure, even if the structure itself was ill-judged, and overall that the closing speech had not reached such a level of incompetence as to call into question the safety of the conviction in that case.
17. We should add that, realistically, Mr Wilmott has acknowledged that this was a very strong prosecution case against the appellant. But that, he said, and with force, could not be determinative; indeed, the very strength of the prosecution case reinforced, he submitted, the need for competent and sensible presentation of the defence case at trial.
18. Turning to Mr Wilmott's first complaint about the manner of the cross-examination of Miss Cathcart, he submitted that, in truth, her evidence was and should have been treated as almost entirely uncontentious. He submitted that there was simply no reason to engage, as Mr Leathley did, in lengthy cross-examination of Miss Cathcart at all. Instead (and this is to an extent borne out by the transcript) Mr Leathley adopted a style of putting what in effect were lengthy speeches to Miss Cathcart without ever clearly formulating any question. This prompted Mr Mooney at trial to interject on a number of occasions, as did the trial judge. Indeed, there were no fewer than three occasions when the jury were asked to retire so that the judge could persuade Mr Leathley to put his questions in a more concise and precise way. Mr Wilmott's complaint is that the way in which this questioning was conducted by Mr Leathley could only be such as to undermine Mr Leathley's credibility (in Mr Wilmott's phrase) with the jury. Moreover, he also complains that the line of questioning actually adopted by Mr Leathley was simply such as to create further unnecessary hurdles for the defence to mount. For example, at one stage, he submitted, Mr Leathley seemed to be exploring with Miss Cathcart the proposition whether the benefits department would approve of ignoring a trust. That, as Mr Wilmott put it, was "picking a fight for no good reason which the defence was bound to lose". Overall, he submits that this mode of questioning was entirely contrary to the proper advancement of the defence case.
19. Having studied the transcript, we can agree that the cross-examination was unduly prolix in a number of ways. In some respects it can be said that it also engaged with matters which might not be thought to have had much relevance. Moreover, it was conducted overall in a style which was more that of lengthy statements rather than concise questioning. In many respects it was a very ill-presented cross-examination. However, it has to be said that, overall, the questions that were asked were broadly directed at matters that did arise on the defence case, even if explored in a rather surprising way. Overall, we are not at all persuaded that there is force in the criticisms of this cross-examination as giving rise to a lack of safety in the conviction.
20. It is to be noted, moreover, that the examination-in-chief thereafter conducted by Mr Leathley of the appellant was quite different. There, the questions were for the most part concisely framed and the defence case was fully and properly drawn out from that questioning. For example, it legitimately focussed on the appellant's asserted feelings for and domination by or subordination to the wishes of Mr Mayer and on her desire to support the two children of their relationship in circumstances where the appellant herself was said to be in considerable personal, emotional and financial difficulties. It may in fact be noted that, quite properly, Mr Wilmott advances no criticism of the examination-in-chief. The reality is that the examination-in-chief and the subsequent cross-examination by Mr Mooney had the consequence that the defence case was fully and properly deployed before the jury in evidence.
21. Mr Wilmott, however, goes on to complain about the closing speech which Mr Leathley saw fit to give to the jury. It is complained that it was put in a grossly hyperbolical as well as in an unfocussed and unstructured way. The speech itself lasted something like an hour, this having been a relatively short trial. Indeed at one stage the judge was prompted to enquire, politely, as to whether counsel was nearly finished. It is said that the speech was so framed as to make the appellant's case to be considered, in effect, something of a fairy tale. In this regard, Mr Wilmott was in a position to point to a jury note which was put in by one of the jurors. That made complaint about two things. First, in the course of certain illustration which Mr Leathley had sought to make in his speech, he had made reference to the "Spastics Society". That is a name which has not officially been used for over 20 years and is capable, in some quarters at least, of giving rise to offence; and apparently it did give rise to some degree of offence so far as this particular juror was concerned (Mr Leathley in due course apologised for this). But in addition, the jury note also complained that Mr Leathley's "ramblings have been a dreadful waste of court time". As to that note, it was, after discussion with counsel and with their agreement, decided by the judge in effect to leave the point alone and simply to let the jury get on with their decision making.
22. In order to illustrate the complaints of Mr Wilmott, we should refer to some parts of the closing speech of Mr Leathley. By way of example, he said this, reading from page 4A-C of the transcript:

"So if she is feckless and stupid, and if she does things that are outrageous by the standards of prudence and good housekeeping and actuarial accounting, if she is that kind of a woman, if she is not the kind of woman you would want to lend £200 to because she is sincerely saying to you, 'I'll pay it back in 56 days,' she might still be honest, but feckless. And what I am going to submit to you is that instead of the emotive adjectives of 'greedy' and instead of trying to inflame the passions of ordinary decent members of the public, taxpayers, that state benefits were mere pocket money, I submit that this is a lady carrying a lot of baggage which is really quite over her head. This lady is packing baggage. You can see her fecklessness..."

23. Then again, reading from page 6:

"Nobody wants to have anything to do with her now. So the curse of Dr Kurt Mayer striketh again, and by Jove what a curse Dr Kurt Mayer left this loving woman with. Because he ran up £140,000 at Lloyds TSB, not her. Silly woman..."

24. Then again, reading from page 11:

"She is sincere in her mission statement to Dr Kurt Mayer. So in fact she is a loving mother on the bare bones of her backside, who is keeping her promise to pay and put her children's education first. If we set up an educational trust with Caroline Ann Foxley as a trustee and paid some highfalutin lawyer in the City of London to execute the Deed of Trust, we could do no better. She does not need the fetters of a legal document. Caroline Ann Foxley is on autopilot. She is carrying out her mission, and it doesn't matter what happens to her, so long as her children and the pledge to the doctor have been honoured. You see that is the bare beginnings of a rather noble individual, not the demonised witch, but that is nobility. If she is mistaken, that is a problem, but if in her own mind she thinks that that is acceptable, she is not guilty..."

25. Then again, by way of illustration, reading from page 14:

"... because I submit she may not be ordinary, she is extraordinary, she is extraordinarily feckless and stupid. But she is extraordinarily in love with Dr Kurt Mayer. Putty perhaps in the hands of Dr Kurt Mayer, putty in the hands of Mr Watson. Perhaps she is a lonely and fragile figure, a right, if I can confuse her sex, 'Billy No Mates' after the world press have finished with her, Billy No Mates. Of course the nice middle class friends in Cheltenham are upper middle class educated toffs of Gloucester, Cheltenham don't want to know Caroline Ann Foxley. She was punching above her weight with the likes of Dr Kurt Mayer. Oh she had some good years, but she had some very bad years..."

26. Those, perhaps, are sufficient to give something of the flavour of Mr Leathley's address to the jury.
27. Mr Mooney, in the respondent's notice, has frankly told the court that his impression was that the conduct of Mr Leathley was "eccentric at best and at worst it bordered on the incompetent". As he put it before us, and we have no difficulty in agreeing, Mr Leathley has a "style of his own". But he submitted that Mr Leathley's conduct was not such as to affect the outcome of the case. The jury were not judging Mr Leathley, they were judging the defendant; and the jury were in a good position, in what was not ultimately either a long or difficult case, to assess the credibility of the appellant who had been, as is accepted, fully and properly examined in chief and then fully and properly cross-examined.
28. The views of Mr Leathley have, entirely properly, been obtained. His lengthy answer is contained in a letter of 14 January 2016. That letter can itself, and perhaps charitably, be described as rambling and eccentric. Mr Leathley certainly appears to take a considerable degree of satisfaction in having a style all of his own. In fairness to him, he candidly and openly accepts that he "lost" the jury in this particular case. He adds that he was not used to appearing in front of juries in the Gloucester Crown Court. He says that he took the view that the jury had taken against the appellant and had taken against him, Mr Leathley, even more. However, he defends his cross-examination and he defends his speech as structured and designed to emphasise the points that he wished to make as to the appellant's state of mind and as to her honest, even if misguided, beliefs. It is also fair to record from his letter that Mr Leathley clearly personally had felt a degree of sympathy for the position of the appellant as she found herself in at the time of the sale of Depot Lodge. He also does express concerns of his own that the jury's dislike of him, Mr Leathley, may have compromised the appellant's prospects at trial.
29. Our view is that the grandiloquent, rhetorical and at times almost facetious style of Mr Leathley as adopted by him in this case should find no room in any modern criminal trial, let alone this one. The defence case here surely best called for a measured and even-handed approach in order to enhance such credibility as it could muster. But all that said, we are simply not persuaded that Mr Leathley's conduct here was of an order such as to cause the resulting convictions to be unsafe or the trial unfair. We have already dealt with his cross-examination of Miss Cathcart. As for the ill-judged and ill-advised mode of language in the closing speech, the fact remains that, whatever the style of delivery, the speech did address the salient defence points, exploring and explaining the appellant's good character; explaining the difficult position, both financial and emotional, which she found herself in at the time; emphasising her stated wish to abide by the view that, in effect, this money was held on trust for Mr Mayer and/or the two children; and indeed emphasising a mother's desire to support her own two children. Above all, it emphasised the fundamental point that she had not, as the defence was saying, regarded the money as her own. All these points were relevant to what would be the Ghosh direction which the judge inevitably would be giving.
30. Moreover, the jury's note, whilst expressing concern on the part of one juror as to Mr Leathley' "ramblings" evinced no deflection away from the key issue in the case: which was to assess the evidence. Indeed, the note is consistent with the jury's desire to get on with that task. Furthermore, these closing speeches, both of Mr Leathley and that of Mr Mooney, were followed by a full and careful review in the summing-up in an even-handed way by the trial judge of the evidence; that also included an appropriately tailored Ghosh direction. Our overall conclusion, therefore, is that the conduct of the defence case by Mr Leathley was not of an order such as to cause the convictions to be unsafe. We accordingly refuse this appeal on this ground.
31. That conclusion means, as Mr Wilmott accepted, that he can have no further complaint about the convictions of the appellant on counts 2, 3 and 4, the fraud counts. But we have to deal with the challenge to the safety of the conviction on count 1 for which the full court had granted leave on a previous occasion. The terms of section 111A(1A) read as follows:

"A person shall be guilty of an offence if–

(a) there has been a change of circumstances affecting any entitlement of his to any benefit or other payment or advantage under any provision of the relevant social security legislation;

(b) the change is not a change that is excluded by regulations from the changes that are required to be notified;

(c) he knows that the change affects an entitlement of his to such a benefit or other payment or advantage; and

(d) he dishonestly fails to give a prompt notification of that change in the prescribed manner to the prescribed person."

32. One point should be noted at the outset. The word "affecting" is capable of having a variable meaning, depending on the context. However, in this particular statutory context it has been authoritatively decided that the word connotes that there has been a change in circumstances which has actually made a difference to the amount of the benefit which a recipient is entitled to claim: see R v Passmore [2008] 1 Cr App R 12 at paragraphs 17 to 18 and London Borough of Croydon v Shanahan [2010] EWCA Crim 98 at paragraph 18.
33. Mr Wilmott's first point is this. Under the section, the entitlement to benefit affected must be by reason of a change in circumstances. But here, he submits, there was no change in circumstances affecting the entitlement to benefit. Before May 2007, when the net proceeds of sale of Depot Lodge were remitted to the appellant and placed in Habibson's Bank in London, the appellant was entitled beneficially to the commensurate beneficial interest in the property which subsequently gave rise to the net proceeds of sale when it was sold. Accordingly, he says, there has been no relevant change in circumstances affecting entitlement to benefit. The implication thus is that this matter was wrongly charged; and for this purpose he in fact relies upon the observations made by a constitution of this court in R v Mote [2007] EWCA Crim 3131 at paragraph 93. It is therefore asserted that, on that scenario, the appellant had no entitlement to benefit before the property was sold and no entitlement to benefit after the property was sold; and accordingly the matter, as pleaded in the statement and particular of offences, could not fall within section 111A(1A) at all. Yet, he complains, the jury were never instructed to consider this.
34. This argument, ingenious though it is, does not, with all respect, impress us. For one thing, it does not fit at all well with some of the general observations made in Shanahan itself at paragraph 18; and one can foresee at the very least a clear potential distinction between having a share in a property on the one hand and receiving in cash the proceeds of sale of such property on the other hand. But quite apart from that, there is a more fundamental objection. This is because it simply cannot be asserted that there was no difference in the entitlement to benefit before Depot Lodge had been sold. This is because the Benefit Agency had in fact considered this very point before proceedings were issued. The decision maker had in particular considered the provisions of regulation 48 of the Income Support Regulations 1987 and schedule 10 paragraph 28 of those regulations. Applying those regulations, the decision maker concluded, in circumstances where Depot Lodge had been undergoing extensive repairs and in consequence the appellant was having to live elsewhere in rented accommodation, that the property should be disregarded for entitlement benefit purposes prior to the date of its sale. Although Mr Wilmott, without any evidence, suggested in his written arguments that such a decision was "questionable", that is, with respect, bare assertion on his part. There is at all events no basis now for saying that it was not a decision reasonably open to the decision maker.
35. Moreover, this very point was also expressly dealt with by Miss Cathcart in her evidence-in-chief. It was never sought to be challenged in cross-examination or otherwise by Mr Leathley. Indeed, there was no reason for Mr Leathley to seek to challenge it, given the nature of the defence which was being advanced. Thus what Mr Wilmott now seeks to advance as an issue was never an issue raised at trial which was required to be left to the jury or required to be ruled upon as a point of law by the judge.
36. Mr Wilmott's other point, and the point on which he more particularly focussed in oral argument before us today, is that he complains that the judge, wrongly, in his instruction to the jury failed to reflect the precise elements of the statutory offence set out in section 111A(1A), and in particular wrongly elided the elements of subsections (c) and (d). As Mr Wilmott pointed out, the requirements of the statute are, amongst other things, that the recipient both knows that the change affects an entitlement of his to a benefit and dishonestly fails to give prompt notification of that change in the prescribed way.
37. What the judge had said on the point was this:

"So what is it that the prosecution must make you sure of before you can find the defendant guilty of the counts? You have the charge sheet, which is before you, and so I shall deal with count 1. The prosecution must prove, in a count of dishonestly failing to give prompt notification of a change in circumstances, (1) that the defendant was legitimately in receipt of benefits; this is accepted by both defence and prosecution; (2) that there was a change in the defendant's circumstances; you must decide whether the receipt of some £306,000 on 19 May 2007 amounts to such a change; (3) that the defendant failed to promptly inform the Department for Work and Pensions of that change; this is accepted by both defence and prosecution; (4) that, as a result, the defendant's Income Support continued; and, again, this is accepted by both defence and prosecution.

I will deal with the matter of 'dishonestly' below, as it is an essential ingredient in all four counts, and is the key matter in issue between prosecution and defence; and, in reality, will be the issue you will have to decide in relation to all counts."

38. The complaint is that the judge nowhere deals with the issue of the appellant knowing of the change in circumstances such as would affect her entitlement to benefit.
39. While this has a certain degree of technical attraction, in the circumstances of this particular case we are satisfied that this is in truth an entirely arid argument. The real issue here, as raised, was whether or not the property and the proceeds of sale were property belonging to Mr Mayer and/or the children, or at least as to whether the appellant genuinely believed that to be so. The real issue was whether or not she genuinely believed that the property and the money did not belong to her. If the jury were to reject her evidence and find that she did believe that the money belonged to her, then it had been accepted, and the trial had been conducted on the footing, that count 1 would have been made out. That approach reflected the realities of the case. The case had proceeded on the footing that, before the property was sold, there was a difference in terms of entitlement to benefit. In the present case, the reality was that the knowledge by the appellant that there had been a change in circumstances affecting her entitlement to benefit and her dishonesty in failing properly to notify the authorities raised the same point. That is why, and indeed with the agreement of counsel, the judge had instructed the jury that dishonesty was here the key issue: because it required the jury to focus on the appellant's state of mind at the time. Thus, whilst it is true that subsection (c) and (d) of section 111A(1A) are distinct requirements in law, in the circumstances of this particular case the reality was that the jury would either be satisfied of both elements or they would be satisfied of neither element. That reality is reflected in the judge's subsequent comments in his summing-up to this effect:

"In deciding these questions, you must consider the defendant's state of mind, and the surrounding circumstances. Whilst you must be satisfied so you are sure as to all the ingredients in the respective counts, the reality is that, in relation to all the counts, the prosecution can only succeed if you are satisfied so you are sure the defendant was dishonest when she failed to declare the £306,000 she had received from the sale of Depot Lodge. The prosecution say she was well aware as to the dishonesty of her claims, and that she made them deliberately, knowing she had a large capital sum at her own disposal, and took steps to conceal it. The defendant says her benefit claims were genuine and honest in all the circumstances, as she did not think the money was hers to dispose of; she genuinely and honestly believed she could only dispose of the money on the authority of her partner, the now-deceased Dr Kurt Mayer."

40. There was no further need for any further direction by the judge as to the ingredients of section 111A(1A) given those circumstances. Thus the jury, in finding, as the jury clearly did, dishonesty, must have been satisfied that the appellant knew of the change of circumstances which actually affected her entitlement to benefit. Accordingly, we are satisfied that there was here no material misdirection in the summing-up and the appeal on this ground also fails.
41. In the result, the appeal is dismissed. In such circumstances we need not deal with Mr Mooney's further application to adduce fresh evidence which sought to rely upon the subsequent dealings of the appellant with the monies in the Swiss bank account with Habibson's Bank. That point does not arise.