Criminal court: Doing justice with benefit fraud

Fewer opinions have been issued from the High Court, but fortunately the Sheriff Appeal Court has chimed in with a couple of cases of interest.

Benefit fraud: always the woman blamed

While not disagreeing with the outcome of the appeal in RA v HM Advocate [2021] HCJAC 27 (23 April 2021), where a mother of six children had the sentence of 12 months’ imprisonment (discounted from 18 months for an early plea) affirmed in respect of a £55,000 benefit fraud stretching over a six-year period, the unsatisfactory nature of these prosecutions has bothered me for my entire career.

I recall as a lowly depute fiscal in Glasgow in the 1970s groaning inwardly as the buff Ministry file landed on my desk. At that time we were advised that the Department would not report cases for prosecution for frauds of less than £2,500. Allowing for inflation since 1978 of over 400%, that would equate to a sum in excess of £12,500 today. However I learned a few years ago that as part of a “get tough” measure by HM Government, files alleging frauds of £2,000 and above were being submitted for proceedings.

It is a fraud on the public purse, and occasionally one hears of someone feigning long-term disability while competing in triathlons etc. The Department’s reach appears limited, and I have never seen such an accused appear in a suit and be reasonably well off.

The present case, like many seen in court, arises when a single woman claims benefits and does not change her claim when her partner returns to the household, or more often flits in and out of her life. It was a serious case of claiming tax credits over a period of five years and eight months while failing to declare that the appellant was living with a partner in full time employment.

The father of the eldest child was deceased; a former partner had been physically and emotionally abusive towards the appellant and failed to provide financially for her. Her new partner, the father of the youngest child, was apparently willing and able to care for all the children in the event of a custodial sentence.

Their Lordships looked to the guideline case of Gill v Thomson 2010 SCCR 922 at para 19, where the court, selecting from the opinion of Lord Lane CJ in R v Stewart [1987] 1 WLR 559 (clarified and updated in R v Graham [2005] 1 Cr App R (S) 115) indicated that custodial sentences of up to 12 months will usually be sufficient where the overpayment is less than £20,000. In Graham the court said: “such offences are easy to commit and difficult and expensive to detect... social security fraud is increasingly prevalent... there will be cases in which courts will be justified in taking the view that a sentence should contain a deterrent element” (Owen J at para 9).

The Appeal Court otherwise ignored the English Sentencing Guidelines Council, which has produced a “Definitive Guideline” on “Sentencing for Fraud – Statutory Offences”.

Subsequently benefit cases of £20,000 and above were prosecuted on indictment, latterly to avoid the presumption against short sentences legislation for summary prosecutions, meaning that a custodial sentence was always on the cards.

Relatively few of these prosecutions proceed to trial, possibly in light of Pennycuick v Lees 1992 SCCR 160, which held admissible questioning by Department investigators. Usually discussions between Crown and defence centre around the amount of the fraud, with the defence agent trying to persuade the Crown to accept a figure below the magic Gill v Thomson £20k. Some negotiation is inevitable, as in some situations the accused would have had a legitimate claim to other benefits if the full circumstances had been disclosed.

Section 35(1) of the Tax Credits Act 2002, under which this prosecution was mounted, states: “A person commits an offence if he is knowingly concerned in any fraudulent activity undertaken with a view to obtaining payments of a tax credit by him or any other person” (my emphasis). Yet I have never experienced a spouse or partner being prosecuted along with the woman. Sometimes in such cases I notionally halved the figure charged to reflect the household benefit obtained by the missing accused.

The appeal report indicates that the appellant was making repayments of £100 a month to the Department of Work & Pensions. The social work report stated that she was unlikely ever to be able to repay or significantly reduce the amount defrauded. These repayments overshadowed any non-custodial sentence that might be imposed by the court.

Such accused women have no money to pay a fine and the amounts involved take far longer to pay than the two years or so afforded by imposing a compensation order. An unpaid work CPO is not realistic, since the backlog is such that the hours imposed in all criminal cases will not be worked off until 2027!

In some cases I have faced a single parent female accused where a man or men have walked in and out of their lives as they have been the main carers for any children. In one case the accused tried to keep it all afloat by holding down several cleaning jobs starting at 6am and running until 10.30pm, with help from her mother and older children to look after the children when at work. A jail sentence was not merited due to the amount involved, but a short period of curfew from midnight to 5am for a few months got over the sentencing dilemma, leaving the Department to claim the outstanding sum for the rest of the woman’s life.

My final thought on this unsatisfactory area of law and sentencing is this. Since RA paid the ultimate price and was sent to jail, will she, having paid her debt to society, still have to keep paying off the £55,000 at £100 a month to the DWP on her release?

Moorov: a full bench

A five judge bench is always eagerly anticipated, particularly since there have been relatively few in recent years. In Duthie v HM Advocate [2021] HCJAC 23 (30 March 2021) their Lordships put to rest any uncertainty which might remain about the nature of offences which might be prayed in aid when the Crown is seeking a conviction on a Moorov basis.

The appellant was convicted of rapes involving two complainers occurring eight years apart. In all the appellant had been convicted of 29 charges, most occurring during his relationships with seven women over a 15 year period. The rapes concerned a former partner in 2003 and twice on a different partner in late 2011. The other charges consisted mainly of physical assaults, some to injury, against all seven women.

To secure a conviction the Crown had to rely on mutual corroboration, but at the “no case to answer” point at trial, it submitted that all the charges including the physical assaults formed part of a course of humiliating, degrading and controlling conduct within domestic relationships.

The trial judge determined that the rape charges had to be considered separately from the others, but that the jury were entitled to view the domestic setting as a special, compelling or extraordinary circumstance as would allow for the application of mutual corroboration notwithstanding the time gap.

At appeal the advocate depute submitted that the trial judge had erred in compartmentalising the offences. The whole offending had to be looked at together. In the context of a domestically abusive relationship, the act of penetration could be a sexually violent one designed to achieve coercive control. That illustrated an underlying purpose between the physical and sexual assaults. Changes in society’s appreciation of the effects of domestic abuse had been reflected in the Domestic Abuse (Scotland) Act 2018. Time was the most flexible component in Moorov.

The Appeal Court disagreed with this approach and reiterated the settled law on mutual corroboration: it applied where there were similarities in time, place and circumstances in the crimes such as demonstrated that the individual incidents libelled were component parts of one course of conduct pursued by the accused. Expressions of how the law might be changed could not detract from what the law actually was, as vouched by earlier full bench decisions and the institutional writers. The Crown’s central contention that testimony about physical assaults could afford corroboration of rape was rejected.

As regards the rape charges with the eight year gap, it was for the accused to satisfy the judge on the absence of a sufficiency of evidence. A “no case to answer” submission could be sustained only when “on no possible view” could it be said that the individual incidents were component parts of a course of conduct persistently pursued by the accused. Where a case lies in the middle ground, the jury should be properly directed so that they are aware of the test which requires to be applied in determining whether offences separated by time can be held to be corroborated under the Moorov principle.

Where a lengthy time gap between charges is involved, there is no rule that there must be special, compelling or extraordinary circumstances before the appropriate inference can be drawn of a course of conduct persistently pursued by the accused.

In refusing the appeal and in general terms approving the trial judge’s approach that the rape charges had to stand alone and be considered on a Moorov basis by the jury, the court overruled the decision in CS v HM Advocate 2018 SCCR 149 where convictions on rape charges 11 years apart had been quashed as the trial judge had given the standard Moorov directions. These were said to be lacking further guidance to the jury in “long Moorov” cases, namely a clear mention of the need for some special or compelling feature of the conduct such that the jury would be entitled to apply the doctrine despite the significant time gap.

I get the feeling that this case was a trial run by the Crown to see if the rule in Moorov could be stretched by the courts. In light of this decision it will be a matter for the Scottish Government whether to legislate to extend the reach of the 2018 Act. It only applies to offences committed after 1 April 2019. Section 1 was a breakthrough, creating the offence of controlling behaviour. Previously such conduct only featured in divorce cases. It remains to be seen what impact it will have in rape cases in years to come.

Sentencing

As ever there are a few sentencing cases to consider this month.

In Dewar & McLean v HM Advocate [2021] HJAC 28 (27 April 2021) the Appeal Court deal with two appeals against sentence involving offences of spitting at police officers during the coronavirus pandemic. General guidance was given last year in HM Advocate v Lindsay 2020 SCCR 324.

Dewar pled guilty to a s 76 indictment libelling a drunken, racially aggravated contravention of s 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 and a charge of assault by spitting a police officer on the face. Both offences took place in December of last year. Police officers had been called out to the locus and initially intended to take him home but he took exception to this and his conduct culminated in assaulting the woman officer.

Sentence for the first charge of nine months’ imprisonment reduced to six months on account of the early plea was accepted, but appeal was taken against 22 months discounted from 33 months on the second charge. Defence counsel pointed out that in Lindsay a sentence of four months had been increased following a Crown appeal to 10 months discounted from 15 months. In that case the charge was culpable and reckless conduct to the danger of life by coughing in the faces of two police officers, and the accused had an “appalling” record with numerous convictions for police assault.

Dewar had a bad record too, with persistent offending dating back to 2006, three sheriff and jury convictions involving violence and nine convictions for police assault. While the Appeal Court thought the sheriff was correct in taking a serious view of the matter, the headline sentence selected was more than twice that in Lindsay. It was not helpful to draw fine distinctions between the two men. Accordingly the sentence was reduced to 15 months, discounted to 10 months.

McLean pled guilty to shouting and swearing at police officers, assaulting them by spitting on two of them, and struggling whilst in the police car, endangering its occupants. He was sentenced to nine months’ imprisonment reduced from 12 months on charge 1, and 18 months reduced from two years on each of charges 2 and 3. The first and third sentences were to run concurrently but sentence on the spitting charge was ordered to run consecutively, making a total of three years.

It was noted that McLean had a less extensive record than Dewar or Lindsay, but he had served a five year High Court sentence for drugs and firearm charges. The headline sentence of two years was too high, and the offences all arose in a single course of conduct so a consecutive sentence was inappropriate. The Appeal Court substituted nine months on charge 2 and made all three sentences concurrent, 18 months in total, with the supervised release order imposed by the sheriff remaining in place.

I have to say on a practical level police officers should have been offered the vaccine as soon as it became available to the elderly and health workers. They are very much on the front line, like defence agents, and have to deal with all manner of people without any triaging taking place.

Meanwhile in the Sheriff Appeal Court, in Procurator Fiscal, Hamilton v Donnelly [2021] SAC (Crim) 2 (9 March 2021) there was a Crown sentence appeal where a sheriff admonished the accused and decided not to impose a non-harassment order in a case involving assault to injury on his ex-wife, aggravated under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

The accused had been convicted after trial in February 2020, but there were delays in obtaining a background report, exacerbated by the pandemic. On the date for sentencing the trial sheriff was at court but said to be unavailable, and the remand sheriff dealt with the matter without the benefit of a social work report, and with minimal papers and information. The Appeal Court, after obtaining a report from the trial sheriff, imposed a community payback order with a requirement to undertake 160 hours of unpaid work. The sheriff had not explained as required by statute why a non-harassment order was unnecessary, and an order was imposed.

While there are circumstances where a different sheriff might sentence in a colleague’s case, where a trial has taken place this should only occur where the sheriff is unavailable, and it is not reasonable or practicable to adjourn.