Joseph Waite [2019] EWCA Crim 1208

R v Joseph Waite [2019] EWCA Crim 1208 concerned an application for an extension of time to renew an application for leave to appeal against conviction, which the Court of Appeal (Criminal Division) dismissed as entirely without merit.

Mr Waite had been convicted on 21 July 2016 in the Crown Court at Swansea, before His Honour Judge Thomas QC, of seven counts of fraud by false representation contrary to section 1 of the Fraud Act 2006. He was sentenced to 30 months’ imprisonment on each count concurrently and was disqualified from acting as a company director under section 2 of the Company Directors Disqualification Act 1986 for five years. He was also ordered to pay a victim surcharge of £120. His application to the single judge for an extension of time to appeal against conviction had been refused, and he now applied for an extension of time of approximately one year and ten and a half months to renew that application before the full court. He appeared in person.

The facts showed that Mr Waite, acting as director of a company, had delivered seven cheques to Barclaycard totalling over £80,000. Each cheque was drawn on a company account that he knew to be closed. Barclaycard credited the credit card accounts of another company of which he was also director with the amount of each cheque. Mr Waite then utilised the credit so obtained to make credit card payments before each of the cheques was dishonoured, as he knew they would be.

At trial Mr Waite had submitted that there was no case to answer, contending that he was not making a representation to Barclaycard but merely transferring monies from one of his companies to another. The trial judge rightly rejected that submission.

Before the Court of Appeal Mr Waite relied upon the same matters that had been considered and rejected by the single judge. He also sought to argue what he suggested was a new point based upon evidence given in Proceeds of Crime Act proceedings. He suggested that in those proceedings the prosecution had confirmed that he had been writing cheques from one company to another, and he asserted that this supported the proposition that his conviction was unsafe. The applicant had submitted a further skeleton argument by email at 22.24 on the evening before the hearing, together with excerpts of transcripts from the original trial and from the POCA proceedings. In his oral submissions before the court, while perhaps acknowledging some technical fault on his part, Mr Waite asserted that he had not been dishonest in the way in which he managed the card credits. He also argued that the trial judge had misled the jury by suggesting he had lied about his previous convictions.

The court, comprising Mr Justice Spencer and His Honour Judge Picton sitting as a judge of the Court of Appeal, adopted the reasoning of the single judge. In delivering the cheques Mr Waite had undoubtedly represented to the payee, Barclaycard, that the cheques were drawn on valid accounts and would be honoured on presentation. He knew that those representations were not true and intended Barclaycard to act on those representations by crediting accounts with funds which would not be reimbursed. It was a clear case of fraud, abusing the bank’s willingness to permit drawing against uncleared effects. It was irrelevant that Mr Waite indicated to which account at Barclaycard the funds should be credited, because the credit was effected by Barclays on the faith of the cheques being honoured. It was also irrelevant that an employee of Barclaycard had accepted Mr Waite’s mistaken analysis when giving evidence. The court found that the additional material submitted the night before the hearing, including the further skeleton argument and the transcripts, had no impact upon the unassailable reasoning of the single judge. Mr Waite was in reality simply recycling the same point which he did not feel able to accept. The suggestion that the judge had misled the jury by suggesting Mr Waite lied about his previous convictions was found to have no foundation.

The court considered the application to lack any merit whatsoever. The renewed application was dismissed. Because Mr Waite was not in custody the court did not make a loss of time direction, but it made an order under section 18(6) of the Prosecution of Offences Act 1985 that he pay £144.10 in respect of the cost of the transcripts that had been prepared, allowing 56 days for payment in light of his limited means. In short, Mr Waite’s conviction was entirely safe and his renewed application for leave to appeal, brought well out of time, was rightly refused.