Posted: 02 / 06 / 2017
Pete and Tony both worked for Snodsby Council as care workers at the Flower Dew Home. This was supported accommodation for four adults with learning difficulties, who would not be capable of living independently or managing their personal finances. Pete and Tony had worked there for years and had become friends.
Part of their role was to take residents on trips out to local shops and attractions where the residents could spend their own funds, withdrawn for the purpose from safe custody at the home. It was permissible for the residents to purchase items for themselves and even spend small amounts on gifts for the staff – an ice cream for example. After each trip the care workers were obliged to account for the expenditures of the residents’ monies.
But one day an allegation was made that Pete had been stealing cash from the residents. After a local authority investigation a report was prepared which alleged that, as well as stealing their cash, Pete had been spending excessive amounts on trips out. In effect Pete was alleged to have been treating himself and Tony on these trips, taking improper advantage of the residents’ vulnerability by using their money inappropriately.
Pete and Tony were interviewed by council staff, including a manager Mr Justin Thyme. Pete immediately admitted that he had taken some money. Following those interviews the matter was referred to the police and both Pete and Tony were arrested and interviewed under caution by Detective Constable Arthur Crabtree.
DC Crabtree drew up a schedule of amounts drawn by Pete from residents’ monies between August 2013 and October 2014. DC Crabtree called these “unaccounted withdrawals”.
Then DC Crabtree obtained copies of bank account statements for both Pete and Tony from their banks. He looked for cash deposits into Pete’s and Tony’s bank accounts over the same period. He put these deposits onto his schedule, which he called ABC/1.
The schedule showed total “unaccounted withdrawals” of £12,621 from residents’ monies between August 2013 and October 2014. Over the same period there were cash deposits, which DC Crabtree called “unsourced deposits”, of £12,249 in Pete’s bank accounts. In that same period there were also bank transfers of £7,960 from Pete’s bank accounts to Tony’s.
In due course Pete was charged with theft of a total of £10,221 from the four residents of Flower Dew Home, contrary to s1 Theft Act 1968. Pete was also charged with possession of criminal property of £12,249 in money (which was the total amount of cash he had banked) contrary to s329 Proceeds of Crime Act 2002 and concealing criminal property of £7,960 in money (which was the total amount of the bank transfers to Tony) contrary to s327 of the same Act.
Tony was charged with possessing criminal property of £7,960 in money (which was the amount transferred from Pete’s bank accounts to his) contrary to s329 Proceeds of Crime Act 2002.
Pete pleaded guilty to all the charges he faced and was sentenced.
Tony pleaded not guilty to the single charge he faced. The matter was referred to the Crown Court and a trial date was fixed.
An ‘open and shut’ case?
One might think that Tony was certain to be convicted because Pete had already pleaded guilty to concealing criminal property of the £7,960 which he had transferred to Tony. But matters are not that straightforward. Pete might have been advised to plead guilty to all the charges he faced rather than risk further investigations by the council or the police and to get the maximum reduction in sentence from an early guilty plea. Because Pete had pleaded guilty the prosecution evidence had not been challenged in court by Pete’s legal team.
The court was not entitled to assume that because Pete had pleaded guilty, Tony must also be guilty. Added to that, even if Pete was guilty of concealing criminal property of £7,960 by transferring it to Tony, it should not automatically follow that Tony would be guilty of possessing criminal property by receiving that money – that would depend, amongst other things, on whether Tony suspected or knew the money was proceeds of crime.
Tony’s legal team were aware of four alternative possible reasons why he might be found not guilty of the offence of which he had been charged.
- the £7,960 was not proceeds of crime, or
- the £7,960 was proceeds of crime, but Tony neither knew nor suspected that, or
- the £7,960 was repayment of monies Tony had previously lent to Pete, or
- the £7,960 transferred into Tony’s bank account was not money which was in Tony’s “possession”.
Tony’s solicitors instructed us to consider the prosecution evidence, including exhibit ABC/1 – DC Crabtree’s schedule of “unaccounted withdrawals”, “unsourced deposits” and bank transfers from Pete to Tony – in relation to possible reasons 1 and 3 and to prepare an expert witness report suitable to be served in evidence. If necessary we would attend Tony’s trial and give oral evidence.
We prepared a fee estimate which was approved by the Legal Aid Agency. Then we set to work.
The first thing we did was to attempt to verify all the entries on exhibit ABC/1 to supporting bank statements or other documentary evidence supplied by the prosecution.
The documents presented to us by our instructing solicitors were the prosecution bundle which included witness statements from DC Crabtree and the council manager Mr Thyme and the bank statements of Pete’s and Tony’s which DC Crabtree had obtained – but did not include any accounting records of Flower Dew Home relating to residents’ monies (which had been referred to by Mr Thyme in his witness statement) nor the transcripts of the interviews DC Crabtree had held with Pete and Tony. Also there was no prosecution case summary in the bundle nor any documents from the plea and trial preparation hearing.
The prosecution case
Our understanding was that the prosecution case was that the “unaccounted withdrawals” were monies stolen from residents (although Mr Thyme’s witness statement said that there had been inappropriate spending on trips out – but not that the entirety of the monies drawn were stolen), that the “unsourced deposits” were stolen cash banked by Pete into his account, and that the bank transfers to Tony were funded from the “unsourced deposits” (and hence were monies stolen by Pete).
We were not able to confirm that the “unaccounted withdrawals” were stolen monies (although they might be) because we had not seen the records of Flower Dew Home and because Mr Thyme’s witness statement suggested that only part of the monies withdrawn were stolen or used inappropriately on gifts or treats for Pete and Tony.
We were able to identify on exhibit ABC/1 the particular withdrawals making up the £10,221 which Pete had admitted to stealing, but we could find no reason why Pete had not been charged with the theft of the whole of the unaccounted withdrawals of £12,621 listed on exhibit ABC/1. It seemed that some withdrawals on the list may simply have been omitted from the theft charges on the indictment in error.
We were able to identify the deposits totalling £12,249 on Pete’s bank account statements and the bank transfers of £7,960 from Pete’s bank accounts to Tony’s on both Pete’s and Tony’s bank statements.
But when we looked at the detail of the dates and amounts of the “unaccounted withdrawals” and “unsourced deposits” on exhibit ABC/1 we found that although the total of the withdrawals (the alleged cash stolen) of £12,621 and Pete’s bank deposits of £12,249 were very similar, the timing and pattern of the alleged thefts and the bank deposits did not tie up.
We prepared a graph of the “unaccounted withdrawals” and “unsourced deposits”, day by day, which illustrated the mismatch between the two. This showed that at least some of the bank deposits occurred before the cash thefts admitted by Pete, which meant that those deposits cannot have related to the thefts in question.
It also became clear that Pete had at least one account with another bank – and those other bank statements had not been obtained by DC Crabtree. So the picture we had of Pete’s financial affairs was incomplete and, in our opinion at least, some of the inferences drawn by DC Crabtree were therefore not reliable.
Pete’s legitimate income
It seemed that until January 2014 Pete’s monthly salary had been paid by bank transfer from Snodsby Council into the bank account examined by DC Crabtree. There was a pattern of Pete transferring most of his salary out of this account into his account with the other bank soon after he was paid each month. Then there seemed to be a series of smaller transfers back to this account, presumably when Pete needed spending money.
After January 2014 there were no salary credits from Snodsby Council, but the transfers into the account from the other bank continued. We inferred from this that from February 2014 onwards Pete’s monthly salary had been credited to his account with the other bank (although neither ourselves nor DC Crabtree had seen any bank statements for that account).
It had not been suggested that Pete’s monthly salary was proceeds of any crime.
The monies transferred to Tony
We then looked at the timing of the transfers from Pete’s bank account to Tony’s and the credits to Pete’s account immediately before those transfers, to see how far, on a practical level, the transfers to Tony seemed to be funded from the “unsourced deposits” into Pete’s account.
We found that more often than not the transfers to Tony seemed to be more closely related to Pete’s monthly salary credits or to monies Pete had transferred into his account from his account at the other bank. Of the £7,960 transferred to Tony only £250 looked to be more closely related to “unsourced deposits” than other credits to Pete’s account.
Tony’s loans to Pete
Finally we looked to see if, outside the indictment period of August 2013 to October 2014, there were transfers of monies between Pete and Tony. Tony had told his solicitors that he had often lent money to his friend Pete and been paid back over time, so there was nothing unusual in Pete transferring money into his bank account. We did find evidence of such money transfers, in both directions, both before August 2013 and after October 2014.
That finding supported Tony’s evidence in that respect. It also strengthened the possibility that the transfers from Pete to Tony were repayments of earlier informal loans from Tony to Pete.
Our report and its impact
We prepared a formal expert witness report and submitted it to Tony’s solicitors. They in turn served copies on the prosecution and the Crown Court.
A little while later the prosecution indicated to Tony’s solicitors that they would not continue with the prosecution of Tony and in due course he was formally acquitted of the charge.
So a prosecution case which at first sight might have appeared to be overwhelming had proved on detailed examination to be full of holes.
Our contact details are here.
(Note: This article refers to a criminal prosecution in England and Wales. There are a number of additional issues which could be relevant to criminal proceedings in particular cases which it is not possible to deal with in an article such as this. Appropriate professional advice should be sought in each individual case. Names and certain other details have been changed in this article in order to preserve client confidentiality.)