Practice and Procedure


PUBLISHED November 13, 2003

The trial judge had not directed the jury that a person might be dishonest, for the purposes of an offence of false accounting, as a consequence of recklessness and the appellant's conviction was safe.Appeal against conviction for false accounting contrary to s.17(1)(a) Theft Act 1968. The appellant ('L') was a pharmacist who operated two pharmaceutical chemists. She was convicted on 15 counts of a 21 count indictment alleging that she submitted prescription forms to the Prescription Pricing Authority for payment that she knew contained materially false information and that this was dishonest. In most instances it was alleged either that the form stated that the patient was over 60 years old when L knew that he/she was not or that the form falsely indicated that the patient had made no payment for the prescription when L knew that payment had been made. L denied any dishonesty but stated that she was stressed and careless when filling out the forms. L appealed her conviction on the basis that: (i) there were material errors in the judge's summing up. L submitted that the judge understated the necessary mental element for the offence by saying that the jury were entitled to conclude that L was guilty if they were sure that she knew that it was 'likely' that among the forms she was signing were forms containing false information. L argued that the necessary intent had to be proved and likelihood was not enough; (ii) the judge was in error in failing to give a Ghosh direction (R v Ghosh (1982) 1 QB 1053); and (iii) the judge should have left for the jury's consideration a factual possibility that L had submitted the forms in order to recoup losses on other forms for which she had not received payment from the Pricing Authority. L renewed her application to appeal a fourth ground that her acquittal on one count was inconsistent with her conviction on 11 of the other counts.HELD: (1) Where it was established that L had submitted prescription forms containing materially false information, the essential question was whether she did so dishonestly. The mental state had to be dishonest with a view to gain or with intent to cause loss. Dishonesty in this context connoted deliberately and intentionally making a false accounting statement knowing it to be false. The purpose of making the false statement had to be established. (2) In the instant case there was no issue but that, if L did make deliberately false accounting statements knowing them to be false, she did so with the necessary intent. (3) The summing up had to be looked at as a whole and the jury were in substance properly directed as to dishonesty. The judge's general directions on dishonesty were clear. This ground of appeal failed. (4) A Ghosh direction should only be given in cases where the defendant might have believed that what he/she was alleged to have done was in accordance with the ordinary person's idea of honesty. L's submission assumed that the judge had directed the jury that a person might be dishonest as a consequence of recklessness. This was not a correct interpretation of the judge's summing up. (5) L's third ground of appeal had no merit whatsoever. (6) Though L's acquittal on one count was curious, it did not affect the safety of the convictions on the other 11 counts. It was not logically inconsistent since the facts were different. The application for leave was refused. (7) L's convictions were safe.Appeal dismissed.

[2003] EWCA Crim 3031