A defendant had pleaded guilty to four counts which were defective in law and this only came to light over two years later. Three were substituted for new offences under Section 3A Criminal Appeal Act 1968. However, lacking a sufficiently similar substitute, the fourth count was quashed with no substitution.
The case gives rise to legitimate concerns about the operation of the criminal justice system.
White pleaded guilty to three offences of obtaining a pecuniary advantage by deception (s. 16(1) of the Theft Act 1968) and to one offence of fraud (s. 1 of the Fraud Act 2006). The basis in law of the charges was challenged in Criminal Law Week and, as a result, the appellant launched an appeal against conviction out of time by over 2 years. The Court granted the relevant extension of time and leave to appeal.
Counts 1-3 relate to a loan secured by way of mortgage dishonestly; count 4 deals with securing a mortgage by failing to disclose unemployment. All four counts are defective in law. As for counts 1-3, R v Preddy  2 Cr App R 524 made clear that the definition of pecuniary advantage in s.16(1) Theft Act does not extend to loans secured by way of mortgage. For this reason, section 15A was inserted into the Theft Act creating the offence of obtaining a money transfer by deception: this includes the provision of a mortgage.
In relation to Count 4, it is now also accepted that, as a matter of law, the applicant was under no duty to inform the mortgage lender that he was unemployed, and therefore there could be no requirement to disclose that fact under s.3 of the Fraud Act.
Held, Since there was no material unfairness whatsoever caused to the defendant, the Court rejected the argument that the indictment was a nullity. Counts 1-3 were substituted by offences of obtaining a money transfer by deception, contrary to s. 15A of the Theft Act, under Section 3A Criminal Appeal Act 1968. In relation to count 4, a substitution for fraud was sought on the basis of a false representation that he was employed, contrary to s. 2 Fraud Act. However, the Court concluded that ‘failing to disclose that he was unemployed' is not the same thing as ‘representing (falsely) that he was employed' and, therefore, the conviction on count 4 was quashed and no other offence could be substituted.
The primary responsibility for the indictment rests with the Crown Prosecution Service and the prosecution. The overriding objective, however, includes a requirement that criminal cases be dealt with justly. Criminal justice is not a game and the idea that the defence can sit back and defeat the pursuit of the overriding objective is no longer acceptabl
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