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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Arowolo v Department for Work and Pensions [2013] EWHC 1671 (Admin) (30 April 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/1671.html Cite as: [2013] EWHC 1671 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		30 April 2013

1. MR JUSTICE NICOL: On 1 November 2011 the appellant was convicted by Thames Magistrates' Court of knowingly making a false statement for the purpose of obtaining benefit contrary to s.112 of the Social Security Administration Act 1992. He was sentenced to a community order with a requirement to carry out unpaid work for 60 hours within the following 12 months. Against his conviction the appellant appeals by way of case stated, the Justices having stated the case on 3 October 2012.
2. The prosecution's case was that, when the appellant completed the claim form for job seekers allowance on 18 November 2009, he made a false representation by giving incorrect details of his capital. In particular, it was alleged that the appellant had failed to disclose four accounts which were in his name and which had balances totalling £25,260.19. There was no dispute that the appellant had not disclosed these accounts. His case was that they were money which he had for business purposes. The Department for Work and Pensions accepted that this was the case, but they contended the accounts should have been disclosed anyway. Although this would not have affected his initial job seeker allowance payments, after a period, they would do so. Accordingly, the Department of Work and Pensions claimed (and the magistrates accepted) that there had been an overpayment to the appellant of £2,421.65 for the period 12 May 2010 for 25 January 2011.
3. What gives rise to this appeal is that the DWP did not produce the original claim form which the appellant had completed. The magistrates' held that this form could not be found. The stated case records:

i. "(j) The appellant was interviewed on 2 February 2011 by Steve Juliens, civil servant fraud investigator, who referred the appellant back to the time when he applied for job seekers allowance. Mr Juliens said the following ...

ii. 'One of the questions you are asked is, the bank accounts you have, and the building society accounts that you have and it asks you to list all of your accounts whatever they are for and whether there's any money in them or not. What made you think that you would not tell us about these Lloyds TSB accounts that you set up in relation to your business without even asking or clarifying about whether or not you should let us know them? You just decided off your back, I won't tell them about the Lloyds TSB accounts. I am just trying to establish what made you arrive at that training of thought at the time.'

iii. The appellant replied:

iv. '... I have told you that you that, you know, I seek business advice, business advice as far as what to do is concerned. In my mind it's not my money, it's business money.'

v. (k) The appellant did not deny that those questions were asked."

4. At the conclusion of the case the magistrates found as follows:

i. "Based on the above facts we were satisfied so we were sure that the appellant decided not to tell the Department for Work and Pensions about the accounts and that he therefore made a false representation by omission and that he did this knowingly. Although we did not have the application form we found the process was standard and that applicants have to declare all their assets."

5. The question which the magistrates posed for the opinion of this court is whether they were entitled to convict the appellant without having sight of the questions and answers contained in the missing job seekers allowance application form.
6. Mr Straw for the appellant makes three submissions. First, what is known as the best evidence rule required the DWP to produce either the actual claim form which the appellant completed, or a specimen form of the same kind. Since the specimens of this kind would have constituted duplicates of the original completed by the appellant, DWP could only prove the contents of the form which the appellant had completed by secondary means if they could show that neither the appellant's form nor any of the specimens was available to the prosecution.
7. Secondly, if that is wrong, the DWP could only prove the contents of the form which the appellant had completed by secondary means if they could show that that particular form was unavailable despite a reasonable search. There was no evidence on which the magistrates could conclude that a reasonable search had been carried out.
8. Thirdly, if that was wrong the means by which the DWP sought to prove the questions on the form which the appellant had completed was the interview questions from Mr Jeunes, but those questions were inadmissible hearsay.
9. Mr Straw began his submissions with the observation that this was effectively an allegation of misrepresentation by non-disclosure. The magistrates could not find the offence proved without examining carefully what the appellant was told on the form that he was required to disclose. The nuances of the ways in which the form posed its questions could be critical to this and so a close examination of the form was essential. He referred me to the analysis which the Divisional Court carried out in the R(on the application of John Pearson) v Greenwich Magistrates' Court [2008] EWHC 300 (Admin).
10. Specimen form as the duplicate of the completed form
11. Because the DWP needed the form for the questions it asked, rather than the answers which the appellant had given, Mr Straw argued that it was immaterial whether they produced the form itself or a specimen of the same form: they would be duplicates of each other. He referred me to the case of R v Watson (1817) 2 Stark 116, a trial for high treason before the Court of King's Bench. Part of the Crown's case was that the defendant had taken away 25 copies of a placard which had been printed advertising a political meeting. By this means the Crown sought to prove that he had had notice of what the placards said. The Crown did not produce one of those 25, but they did provide another example from the same print run. An objection was raised that the Crown should first have called upon the prisoner to produce one of the placards he himself had taken. The Judges held that this was not so. Every one of the placards was an original.
12. Mr Straw argues that likewise here, all the forms of the same generation as the one the Appellant completed were identical. Each was a duplicate of the other. A party cannot rely on secondary evidence of a document unless he has shown that the original is not available to him. The DWP did not, and could not have shown, that all the examples of that generation of the form were no longer available.
13. While this is an ingenious argument, I do not find it persuasive. There was in this case only one original of the form which the appellant completed. Only that particular document could be the primary means of establishing what questions had been before the Appellant when he gave the information that he did. If that particular document was not available it would (in principle at least) be open to the Crown to prove its contents by other means. It may well be that the most effective alternative means would have been to produce a form of the same generation. However, once it is open to a party to prove the contents of a document by secondary means there can be no objection that, a less than ideal alternative has been chosen. As Parke J said in Brown v Woodman (1834) 6 Car and P 206, "There are no degrees in secondary evidence".
14. Mr Straw notes that Parke J went on to say, "If there had been a duplicate original it might have been different". I do not consider that helps him sufficiently. I have already said there was only one original. In any case Parke J did not decide it would make a difference if there was a duplicate original and the modern trend, as I will show, is to narrow, rather than expand, the best evidence rule. I do not accept Mr Straw's first submission.
15. Sufficient search
16. Mr Straw took me to Park Lane Ventures Ltd v Locke [2006] EWHC 1578 (Ch) where John Randall QC, sitting as a Deputy Judge of the High Court, said at paragraph 28:

i. "I take the modern law on proving private documents by 'secondary evidence' from Halsbury's Laws of England, 4th ed., vol. 17(1) (2002 reissue), under the title 'Evidence' at paras. 412-414, 815 and 817, to which I refer for their full text without lengthening this judgment by setting it out in full. In essence, to act on secondary evidence I must be satisfied that the document existed, that it has been lost or destroyed (i.e. the original document or 'primary evidence' is not available), and that a reasonable explanation for this has been given. For this purpose I must judge whether a sufficient search has been made, and do so according to the particular circumstances of the case."

17. Here, Mr Straw argued that there was no evidence on which the magistrates could have found that a sufficient search had been conducted for the original claim form. All that the magistrates were told was that DWP had outsourced their storage and they could not find it.
18. It will have been apparent from the cases I have already cited that the best evidence rule has ancient origins. Its modern form was considered in R v Governor of Pentonville Prison ex parte Osman [1991] WLR 277 at page 308. This is part of the judgment of the court read by Lloyd LJ:

i. "Mr Nicholls has three answers. First, he submits that the best evidence rule no longer exists. Secondly, if it does, it was complied with. Thirdly, and in any event, section 11(1)(b) provides a statutory exception to the best evidence rule.

ii. As to his first submission, this court would be more than happy to say goodbye to the best evidence rule. We accept that it served an important purpose in the days of parchment and quill pens. But since the invention of carbon paper and, still more, the photocopier and the telefacsimile machine, that purpose has largely gone. Where there is an allegation of forgery the court will obviously attach little, if any, weight to anything other than the original; so also if the copy produced in court is illegible. But to maintain a general exclusionary rule for these limited purposes is, in our view, hardly justifiable. So we would, if we could, be happy to accept Mr Nicholls' first submission.

iii. But although the little loved best evidence rule has been dying for some time, the recent authorities suggest that it is still not quite dead. Thus in Kajala v Noble (1982) 75 Cr App R 149, 152, Ackner LJ said:

iv. 'The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original document is available in one's hands, one must produce it; that one cannot give secondary evidence by producing a copy.'

v. In R v Wayte (1982) 76 Cr App R 110, 116, Beldam J said:

vi. 'First there are no degrees of secondary evidence. The mere fact that it is easy to construct a false document by photocopying techniques does not render the photocopy inadmissible. Moreover, it is now well established that any application of the best evidence rule is confined to cases in which it can be shown that the party has the original and could produce it but does not.'

vii. What is meant by a party having a document available in his hands? We would say that it means a party who has the original of the document with him in court or could have it in court without any difficulty. In such a case, if he refuses to produce the original and can give no reasonable explanation, the court would infer the worst. The copy could be excluded. If, in taking that view, we are cutting down still further what remains of the best evidence rule, we are content. On the facts, the magistrate was entitled to hold that the prosecution had given a reasonable explanation the absence of such originals as they failed to produce."

19. In this case, the original claim form was not in court. Therefore the magistrates had to ask themselves whether the prosecution could have got the original claim form in court without any difficulty. They concluded that it could not be found. It was for them to make that assessment. I do not accept that there was no evidence to support it or that their conclusion in this regard was perverse. This is a different case from Brown v Secretary of State for Social Security 21^st November 2004 DC [1994] C.O.D. 260 where there was no evidence at all as to why the original documents (in that case, vouchers completed by the benefit claimant when receiving her payments) could be produced.
20. Accordingly, I reject Mr Straw's second submission.
21. Secondary evidence as admissible hearsay
22. What the magistrates had before them was the evidence of the interview with Steve Jeunes. Mr Straw accepted that an interview with a suspect was admissible hearsay (assuming it was not wholly exculpatory). He agreed that this meant that normally questions as well as the suspect's answers were to be admitted. Answers without the questions would often be meaningless. However, he submitted that the Appellant was not asked to agree with Mr Jeunes' initial comment about the contents of the form. Instead, Mr Jeunes carried on with further questions. The answer which the Appellant gave was to those latter parts of the questions. The earlier part (that concerning the content of the form) was therefore not admissible as part of the interview and it remained inadmissible hearsay.
23. Ms Tibbetts, on behalf of the DWP, made a number of responses to this submission. First, it was for the magistrates to weigh all the evidence and the impact of the appellant's answers. From this exchange they were entitled to reach the conclusion that he had not denied that these questions were asked on the form. Second, the appellant was represented by his solicitor before the magistrates. No objection was taken to the inclusion of this exchange as part of the evidence in the case. Section 114(1)(c) of the Criminal Justice Act 2003 provides that hearsay is admissible by agreement of the parties. No formality is required. A court is entitled to infer from the absence of objection (at least on the part of a represented party) that there is agreement (see Archbold 2013 paragraph 11-3c).
24. Third, in any case, Mr Jeunes gave evidence and could have been cross-examined if there was a dispute.
25. It is sufficient for me to say that I agree with Ms Tibbetts. I do not accept this submission either.
26. Conclusion
27. Since I find that the magistrates were entitled to admit secondary evidence of the form which the appellant had completed it was a matter for them to decide whether this evidence was sufficient to prove to the criminal standard that the appellant had knowingly failed to disclose the Lloyds TSB accounts in his name. In this case they found the evidence of Mr Jeunes was sufficient. DWP should not take away from this case the conclusion that other magistrates will necessarily come to the same view. Nonetheless, it follows that, despite Mr Straw's impressive advocacy on behalf of the appellant, this appeal must be dismissed.
28. Are there any other applications?
29. MS TIBBETTS: My Lord, (Inaudible).
30. MR STRAW: The only order I would seek is for detailed assessment of the claimant's publicly funded costs.
31. MR JUSTICE NICOL: Very well.
32. MR STRAW: Thank you.