Shirt & Anor v R, Court of Appeal - Criminal Division, November 08, 2018, [2018] EWCA Crim 2486

Resolution Date:November 08, 2018
Issuing Organization:Criminal Division
Actores:Shirt & Anor v R
 
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Case No: 201809409 C4, 201801478 C4

Neutral Citation Number: [2018] EWCA Crim 2486

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT DERBY

His Honour Judge Jonathan Bennett

T20177017

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 08/11/2018

Before :

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION

(SIR BRIAN LEVESON)

MR JUSTICE JEREMY BAKER

and

MR JUSTICE GOOSE

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Between :

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Graham Arnold for the Appellants

Tony Stanford for the Respondent

Hearing date : 17 October 2018

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JudgmentSir Brian Leveson P :

  1. On 14 March 2018, in the Crown Court at Derby before His Honour Judge Jonathan Bennett and a jury, Virginia Shirt and Alan Shirt were convicted by of conspiracy to defraud by making a false representation, contrary to s.2(1) of the Fraud Act 2006. The particulars of the offence on the indictment were as follows:

    ``Daniel John Davenport, Virginia Shirt, Alan Shirt and Kelly Kushner together with Robert Lane and others between 10th day of August 2014 and 22nd day of April 2016 conspired together to defraud Kieran Clarke Green solicitors by dishonestly making a false representation that a document dated 5 January 2015 and headed Last Will and Testament and which purported to be made by William Bond was a true and genuine document knowing this to be untrue and intending thereby to make a gain for themselves or another''.

  2. On 17 April 2018 Virginia Shirt was sentenced to 18 months' imprisonment, whilst Alan Shirt was sentenced to 16 months' imprisonment. At the same time, Daniel Davenport and Kelly Kushner who had pleaded guilty to the conspiracy on an earlier occasion were sentenced respectively to 12 months' imprisonment and 9 months' imprisonment suspended for an operational period of 12 months with a curfew requirement for 3 months.

  3. Virginia Shirt and Alan Shirt now appeal against their convictions by leave of the single judge.

    The Facts

  4. The background to these convictions is that Virginia Shirt, who is married to Alan Shirt, was the sister of Kate Ashmore who had been the owner of and lived at a property at 47, New Queen Street, Chesterfield. She had a daughter called Jody Davidson who lived at the property with her mother and latterly her own young daughter. Kate Ashmore commenced a relationship with William Bond and he moved into the property. Subsequently his name was placed on the title deeds of the property as joint owner with Kate Ashmore.

  5. On 10 August 2014, Kate Ashmore died. William Bond continued to live in the property until the date of his death on 29 April 2015. During this period, he continued to see Jody Davidson and acted as a grandfather figure to her young daughter.

  6. Following William Bond's death, the appellants took a document which purported to be William Bond's last will and testament to their own solicitors Messrs Kieran Clarke Green. By that document, Mr Bond bequeathed his estate, including the property, to Jody Davidson. It was dated 5 January 2015 was made without solicitors on a form available from High Street stationers and contained a signature purporting to be that of William Bond and signed in the presence, as witnesses, of the two co-accused Davenport and Kushner. The executors were named as Alan Shirt and Kate Ashmore's brother Robert Lane, who has since died.

  7. William Bond had two adult daughters from a previous relationship, Kathryn Anderson and Sarah Adams. He had been estranged from them for about 20 years prior to Kate Ashmore's death. However, after her death, he had renewed contact with them. Following his own death, his two daughters doubted the validity of his will and his signature which read ``Billy B'' and was very different to the formal signature which they had seen used by him on other documentation.

  8. The appellants were arrested by the police on suspicion of fraud. In their police interviews Alan Shirt made no comment to most questions but asserted that the will had been signed in his presence, whilst Virginia Shirt submitted a prepared statement denying fraud and asserting that the will was genuine.

    The trial

  9. The prosecution case at trial was that although the deceased may have expressed his intention to make a will in favour of Jody Davidson, leaving the property to her, he had not done so. It was contended that the will was a forgery which the appellants had fabricated in order to ensure that Jody Davidson would inherit the property.

  10. The defence case at trial, as reflected in the appellants' Defence Statements, was that the will was genuine and had been signed by the deceased at a meeting which had taken place at his home in the presence of Robert Lane, the co-defendants and the appellants. Moreover, the will was in accordance with their understanding both of Kate Ashmore's wishes before she died and those expressed by the deceased during his lifetime.

  11. At the commencement of the trial the prosecution applied to adduce evidence before the jury of the co-accused's pleas of guilty to the indictment under s. 74(1) of the Police and Criminal Evidence Act 1984 (``the 1984 Act''). It was submitted that it was relevant to prove the existence of a conspiracy. Moreover, it was capable of establishing that the will was a forgery. The prosecution pointed out that the indictment did not allege a closed conspiracy and that although it accepted that the admission of the evidence would cause...

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