Daily Telegraph

(not published)

22 August 2009

Sir

Whilst I have been advised not to discuss my court case until the appeal has been determined, I cannot allow the letter from Rob Tolan (DT 20 August) to go unanswered.

Anyone applying for benefits whilst trying to find a way of supporting their family again walks a dangerous path.  Benefits staff are often out of their depth in dealing with white-collar applicants.

They have little or no experience of the commercial world.  They disagree and contradict each other over the status and entitlements of applicants.  They give advice and make decisions which they rarely (if ever) admit at the time are subject to being overturned at a later date by someone whom the applicant will never meet.

A short video of mine on You Tube has brought many messages supporting my concerns.  They tell of appalling experiences of the benefits system.

As a result, I recently invited the head of the benefits department at the DWP to accompany me anonymously to see for himself what urgently needs to be done to improve the training and knowledge his staff.  He refused.

Ashley Mote

“Convictions Are Unsafe”

The Court of Appeal rejected Ashley Mote MEP’s appeal against conviction in 2007, when he was found guilty of some charges and not-guilty of others. All related to the receipt of benefit payments. The House of Lords later refused to hear any arguments about the conduct of the case, or the verdicts.

Yet the jury was obviously confused. Identical charges with identical wordings, apart from different dates, produced guilty and not-guilty verdicts on the same evidence. The best example was contradictory verdicts on two charges that were identical bar one day. That is not credible.

The Court of Appeal’s rejection of legal argument, and the House of Lords refusal to hear it, means that a jury faced with identical evidence on all counts can find the accused guilty of some alleged offences but not others. This contradicts much legal precedent, and is one of the primary reasons why the fight to have the verdicts overturned must go on.

A fresh legal team was invited to review the case. It has concluded that the convictions are unsafe, and that there has been a miscarriage of justice. The following extracts from new legal opinion set out the other reasons for an appeal to the Criminal Cases Review Commission, in addition to the contradictory verdicts issue.

The new appeal to the CCRC has now been lodged.

Extracts from
A D V I C E
from Michael Shrimpton, barrister
on the case of
Ashley Mote MEP

I advise that there is a substantial risk that there may have been a miscarriage of justice and that this conviction should be referred to the Criminal Cases Review Commission, established following the ‘Birmingham Six’ case and other high profile miscarriages of justice. I bring specialist national security and intelligence expertise to bear to this matter, and I also set out my concerns below regarding jury tampering and the possible (I stress that word) commission of criminal offences in order to secure Mr. Mote’s conviction.

Miscarriage of Justice

Reviewing the papers I am left with seven principal concerns:
(i)         Failure to adopt the approach of a Minister of Justice;
(ii)        Lack of economic literacy of the prosecution;
(iii)       Vagueness of the charges;
(iv)       Scattergun approach, ie inclusion of irrelevant allegations;
(v)        The treatment of the hand-writing evidence;
(vi)       Failure to consult with the proper US authorities re a US Citizen; and
(vii)      Possible jury-tampering.

(i) Minister of Justice
One of the first things a prosecutor learns is to be objective and fair, indeed it might be thought they are essential qualities for all counsel (I seem to recall wise words to that effect from the late Richard du Cann QC, whom I had the privilege of knowing, and I am sure he was right). Prosecuting counsel is a Minister of Justice. This does not mean counsel should be soft, but it does mean counsel should try not to take things personally. With the very greatest of respect to Miss Greenberg I am not sure that she might not have tried harder. I am surprised and disappointed that she was not brought up by the learned trial judge in her closing speech. Impartiality, fairness and objectivity are all the more important in the prosecution of an elected official, such as Mr. Mote, with whose opinions you might not necessarily agree. It is all too easy to allow your contempt for a man’s opinions to affect your judgment of the man himself, not least in an area as surrounded by propaganda and controversy as whether the UK should remain a member of the European Union, where opinion is often received opinion, and the contrary opinion very often more sophisticated.  Again with the very greatest of respect, reading her closing speech, whilst I should prefer to be wrong and I do not agree with respect to Mr. Mote with the suggestion that her conduct of the prosecution amounted to professional misconduct, I am not persuaded that my learned friend did not fall into the traps I have outlined above. I say no more than that.  The CCRC will no doubt conduct a thorough review and form their own opinion.

(ii) Economic Illiteracy

I respectfully agree with Mr. Mote’s criticisms that the prosecution seem to have struggled with respect with basic accounting and economic principles. They seem to have confused income and expenses, and income and debt. If a man borrows £45 or so on his credit card to purchase a wreath for his mother’s funeral he increasing his borrowings not increasing his income, let alone living the high life, as the prosecution so recklessly and offensively suggested, with respect. This problem is particularly acute re the businesses that Mr. Mote was struggling to establish in order to provide him and his family with an income, at a time when the age barrier realistically meant that he could not secure salaried employment. It is far from clear to me that Mr. Mote was able to draw any material income from those companies at all.

(iii) Vagueness of the Charges

It is axiomatic and has always been a feature of the Income Support scheme, and Supplementary Benefit before it, that it is paid weekly and any income which falls to be regarded must be calculated on a weekly basis. Most benefits are calculated weekly, something which goes right back to the early National Insurance Acts. I may have the advantage of counsel in the case here, since I used to a fair amount of pro bono and law centre work, indeed for about four years of my career I did little else. In the old days I appeared not infrequently before National Insurance Local Tribunals, Supplementary Benefits Appeal Tribunals and the Commissioners. If you are going to prosecute a case of benefit fraud the first thing you do is break down the income into weekly periods, using specimen charges where necessary, and the second thing you do is decide what is income and what is capital.  The last thing you should do with respect is take a six year period and allege a global income figure – that is not quite how it was done in this case but studying the indictment it is not far from it. The problem is lack of particularity, in particular a failure to break down receipts into drawings and re-imbursement of proper expenses, and the failure to distinguish between debt and income. If you drive 200 miles to a business meeting in a used Honda and pay for say six gallons of petrol using an American Express card that is not income, not for that matter is it a particularly luxurious lifestyle.  The global approach is reflected with great respect in prosecuting counsel’s vague closing speech, which fails to identify a single amount by which income exceeded the disregard limits in a single week, and the learned trial judge’s with great respect long and rambling summing-up, over three days, which some might think provides further ammunition to those who argue that the questionable practice of having judges sum up on the facts should be abolished in favour of the American approach, which leaves the facts firmly to the jury.

(iv) Scattergun Approach

By my count the prosecution managed to introduce at least three allegations which were not the subject of counts on the indictment – alleged tax fraud, mortgage fraud and obtaining a pecuniary advantage (a car loan) by deception.  None of these allegations was supported by the alleged loser, if indeed there was a loser, none related in any meaningful way to the matters alleged in the indictment and no applications seem to have been made to introduce the evidence under the Similar Fact Rule or as bad character evidence under the Criminal Justice Act 2003. As presently advised I do not know what this ‘evidence’ is doing here.

(v) The Hand-Writing Evidence

Different prosecutors prosecute in different way of course, but one thing I always try to avoid when prosecuting is making unsupported allegations about contentious hand-writing.  What were the prosecution doing, with respect, alleging that documents signed by Mr. Tanner were in reality signed by Mr. Mote, without the benefit of a report from a recognised hand-writing expert?  Did the DWP ask for a report, if so what did that report say and if it was adverse to the view formed by the prosecution was it disclosed? The reason I query disclosure (I am sure counsel would not have sat on a report) is that the prosecution were very keen to prove that Mr. Tanner and Mr. Mote were one and the same, and they had in their possession samples of Mr. Tanner’s handwriting.  In those circumstances I would have expected them to obtain a report and to my mind its absence sticks out like a sore thumb. If a report was suppressed by the Department of Work and Pensions then of course the conviction will have to be set aside. I do not say that it was, I merely suggest it as a line of enquiry for the CCRC.

(vi) Failure to Consult with the Proper US Authorities

Not the least curious aspect of this case is the dispute about the existence of Mr. Tanner. Mr. Mote says that he is an old business contact. The prosecution threw out the damaging suggestion that he did not exist.  This is absurd. Unless he was a covert member of the intelligence community, which is not suggested, he would have social security, tax and business records, and probably a drivers’ licence as well. There is nothing to stop the CCRC making those inquiries and if they bear fruit the conviction would surely have to be set aside. To ventilate a suggestion so easily checked without checking the facts was, with respect to the prosecution, wrong.

(vii) Possible Jury-Tampering

There is an anomaly in this case. On Wednesday 15th August 2007 Miss Atkins, junior counsel for the prosecution, very properly told the learned trial judge that some of the prosecution team had been in a pub the night before (nothing wrong in that of course) and had observed a juror go up the stairs, and emerge a few minutes later, smiling at the prosecution. To a lawyer such an encounter means nothing, except a risk of improper jury contact. To an intelligence specialist it is a potential anomaly requiring an answer. Whom was the juror meeting? If he or she was not meeting any one what was the purpose of this brief visit? Did any money change hands? Mr. Mote’s views on the EU make him a person of interest to Intelligence [services which…] would not only have access to jurors’ names and addresses, but also their phone, medical and financial records. For the avoidance of doubt I am not asserting that there was jury-tampering, merely suggesting that we have an unresolved anomaly concerning the jury in a case of intelligence interest.

Conclusion

I would be concerned about this prosecution whoever the defendant was, and whatever his or her political views, emphasising that there are no doubt many matters about which Mr. Mote and I might have different views. With the greatest of respect to the judges and prosecutors involved, very frankly, based on what I have seen, these convictions are unsafe and should be referred to the Criminal Cases Review Commission, which has power to refer them back to the Court of Appeal, after a thorough investigation, which in my view is clearly called for. I advise accordingly.

Michael Shrimpton LLB (Hons), Esq.,
of Gray’s Inn, Barrister

20 January 2009

Watch Ashley Mote’s personal statement at http://www.youtube.com/watch?v=gBk4C4R8w0k