Mitton v AG (Court of Appeal : Appeal (Criminal) : McMahon, Dunlop KC, McCullough KC) [2025] JCA 316 (27 November 2025)

Court of Appeal 27 November 2025 Before : Sir Richard McMahon, President; Mr Roddy Dunlop KC JA, and; Mr Angus McCullough KC JA. Benjamin Mitton -v- The Attorney General Advocate G. F. Herold-Howes for the Appellant. Advocate M. L. Preston, for the Respondent

JUDGMENT THE president: 1. This is the judgment of the Court, to which we have all contributed.

2. Benjamin Mitton ['the Appellant'] appeals against conviction. On 29 th April 2025 he was convicted of: (i) One count of larceny as a servant and, (ii) Two counts of transferring of criminal property contrary to Article 31(1)(c) of the Proceeds of Crime (Jersey) Law 1999 , both on the 15 May 2018.

3. On behalf of the Appellant, Advocate Herold-Howes advances three grounds of appeal. Each of the grounds is resisted by Crown Advocate Preston on behalf of the Attorney General. The Appellant contends that no leave to appeal is required on the basis that these are questions of law. The Crown does not suggest otherwise and we are content to proceed on that basis. The respective arguments on the substantive appeal may be summarised as follows: Ground 1 - No Case to Answer 4. Advocate Herold-Howes argues that the Commissioner erred in rejecting his no case to answer submission, as there was no reliable evidence to prove appropriation or show loss suffered by Hunt Brothers Limited (HBL). Cash deposits in the Appellant's account were treated as proof of appropriation without direct evidence that the money originated from HBL.

5. This was an error which permeated the entire case - the Crown never proved appropriation of HBL cash as a freestanding and essential element. The Crown allowed the bank account to fulfil two roles at once - evidence of loss, and evidence of the identity of the taker.

6. Inherently unreliable accounting evidence was taken into account on the basis that its weaknesses went to weight rather than sufficiency.

7. The prosecution's expert conceded the source of funds could not be determined, making any inference of criminality unsafe. Rather, the case was built on circumstantial evidence with critical evidentiary gaps; the bank activity suggested involvement but could not establish appropriation or loss as required as a matter of law.

8. The Crown responds by contending that the Commissioner applied the correct legal test, examining whether a reasonable jury could infer guilt from the cumulative evidence (financial activity, witness testimony, expert reports).

9. There was ample evidence, in the form of unexplained cash deposits, profit drops at HBL during the Appellant's employment, suspicious account activities, and dishonesty in the Appellant's banking records. HBL's accounting was unsophisticated, but that was because the business operated on trust. That did not mean relevant facts were not or could not be proved.

10. Witnesses testified to lost money and suspicious behaviour, which could properly support a jury's decision to convict. It was not a case of simply looking at the bank accounts in isolation. In the two years before joining HBL, the Appellant had paid a total of £652 into his bank account; whilst at HBL, he paid in funds in the region of £400,000 over nearly 4½ years; and after he left HBL, he paid in £262. That gave rise to an adverse inference, as did his lavish lifestyle in the face of a modest income.

11. Moreover, the Crown expert spoke to 30 occasions of money being taken out of HBL on the same day as money paid into the Appellant's account. On one of those occasions, the business was closed and thus there was no reason for cash to be taken out at all.

12. The role of the judge at the stage of a no case to answer submission is only to assess if evidence exists that could properly support a conviction, not to determine its conclusiveness; the matter was properly left to the jury's assessment. Ground 2 - Jury Misdirection on Appropriation 13. Advocate Herold-Howes complains that the jury was not given a standalone direction that they must be certain appropriation took place as a distinct element of larceny.

14. Directions conflated legitimate banking activity with proof of appropriation, risking conviction solely because cash appeared in the Appellant's account. Failure to clearly separate elements meant the jury could not be sure of appropriation beyond reasonable doubt, especially given the circumstantial evidence.

15. The Crown responds by arguing that the Commissioner clearly set out the need to be sure cash was taken from HBL, identifying appropriation as the central factual issue.

16. Jury directions included a step-by-step breakdown of elements - employment, property, lack of consent, dishonesty, and intent - and emphasized separate consideration for each count.

17. The jury was reminded of the overlap but instructed to evaluate each count individually, following the legal requirements for directions in circumstantial cases. Ground 3 - Misdirection Regarding Silence 18. Advocate Herold-Howes contends that the Jury directions implied that the Appellant's silence (in police interviews and at trial) could strengthen the prosecution's case, improperly shifting the burden of proof.

19. It is said that the jury might have been misled to infer guilt from the absence of explanation for the source of cash, rather than focusing solely on the prosecution's evidence.

20. The Crown responds by arguing that standard legal directions were given - the prosecution must prove its case, the defendant has no obligation to give evidence, and his silence is not evidence of guilt.

21. The lack of explanation for the cash was mentioned only as a factual gap, not as a basis for inference of guilt, balancing the jury instructions with defence arguments about HBL's poor financial practices.

22. The directions complemented established legal guidance, carefully clarified the burden of proof, and explicitly advised the jury not to hold silence against the defendant. Our assessment 23. The key question in this case was, as correctly identified by the Commissioner, the question of appropriation. Appropriation is a question of fact, and thus one for the jury. Here, there was no direct evidence of appropriation, and the Crown case was thus entirely circumstantial.

24. There is no dispute regarding the test on appeal in this jurisdiction. As has been stressed by this Court on several occasions, the ultimate question on an appeal against conviction is whether the verdicts should be set aside because they are unreasonable or because there has been a miscarriage of justice - see AB v HM Attorney General [2023] JCA 228 at [83] to [89]. and the cases there cited, by reference to Article 26(1) of the Court of Appeal (Jersey) Law 1961 . Ground 1 25. The no case to answer submission could not be sustained unless no reasonable jury could have been sure, on the Crown evidence, that appropriation had been proven. Advocate Herold-Howes confirmed in his oral submissions that the Appellant did not suggest that the Commissioner had misdirected himself as to the test he applied; rather this ground was based on the Commissioner's application of that test to the Crown's evidence in this case.

26. As Pitchford LJ explained at paragraph 3 of Younis Masih [2015] EWCA Crim 477 - "There is no dispute between the appellant and the respondent as to the correct approach in law to a submission of no case to answer when all the critical evidence is indirect and inferential. The ultimate question for a trial judge is - Could a reasonable jury, properly directed, conclude so that it is sure that the defendant is guilty? It is agreed that in a circumstantial case it is a necessary step in the analysis of the evidence and its effect to ask: Could a reasonable jury, properly directed, exclude all realistic possibilities consistent with the defendant's innocence? Matters of assessment and weight of the evidence are for the jury and not for the judge. Since the judge is concerned with the sufficiency of evidence and not with the ultimate decision the question is not whether all juries or any particular jury or the judge would draw the inference of guilt from the evidence but whether a reasonable jury could draw the inference of guilt." 27. The Appellant also relies on R v G & F [2012] EWCA Crim 1756 , in which the Court of Appeal of England and Wales considered the approach to be taken by the court when considering a submission of no case to answer in circumstantial cases. At paragraph 36 Aikens LJ stated: "We think the legal position can be summarised as follows: In all cases where

a judge is asked to consider a submission of no case if answer , the judge should apply the 'classic' or 'traditional;' test set out by Lane LCJ in Galbraith. Where a key issue in the submission is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence. However, most importantly, the question is whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, as adduced by the prosecution, be entitled to reach that adverse inference. If a judge concludes that a reasonable jury could be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue, if not it must be withdrawn from the jury." 28. The test for sustaining a half-time submission is thus a high one, and doubly so on appeal. As was explained in Bhojwani v AG [2011] JCA 034 at [113]-[115]: "113. We must also be conscious again of the limits of our jurisdiction as an appellate court... 115. ... we have to remind ourselves that we are not the Commissioner. Our task is to decide whether the Commissioner could reasonably

determine that there was a case fit to go to the Jurats, not that we ourselves might not have assessed the case in the same way... "the test is whether the judge's decision was reasonable" ... The high hurdle ... by a submission of no case ... is doubly high at the appellate level." 29. In the present case, Advocate Herold-Howes argues HBL's business records were in such a state that the Crown simply could not prove misappropriation or loss, contending - "These are the records of a business that operated on trust, memory, and informal practice. This made it makes it impossible to confirm with confidence whether these discrepancies during the period the Appellant was employed with HBL represented cash losses". Doubtless that was a point that could be made with forensic force to the jury (as, indeed, one can see it was in the present case). However, that does not mean that the no case to answer submission fell to be sustained - the poor records of HBL doubtless created a weakness in the Crown's case, but what to make of that weakness was a matter for the jury. Otherwise it would never be possible to prove larceny from an employer who was disorganised. We do not understand that to be the law.

30. Advocate Herold-Howes pointed to what was said in Freeman and Crawford [2009] 1 Cr App R 11 , as follows: "When issues of cross-admissibility arose it might not always be helpful to concentrate on propensity where the nature of the evidence was such that it was capable of being probative in relation to another count in the sense either that it made it more likely that the offence was committed or that the defendant committed the offence. It was too restrictive an approach to require that the jury be satisfied of guilt on one count before moving on to use the evidence in relation to that count in dealing with any other count on the indictment. Whilst the jury had to be reminded that it had to reach a verdict on each count separately, it was entitled in determining guilt in respect of any count to have regard to the evidence in support of any other count if that evidence was relevant and admissible." 31. Counsel went on to note that Freeman was concerned with the admissibility as between counts in cases involving issues of propensity, which was not this case, and argued that the learned Commissioner had erred in adopting a general cross admissibility approach - where the question was whether the cash deposits were criminal in provenance; where the sole evidence to prove they were was the contention that money had been stolen from HBL; and where there was an insufficiency of evidence of theft from HBL, it followed that the larceny charges and the transferring criminal property charges became mutually supportive but with no evidence to support either.

32. We do not accept that argument. In the present case, the evidence which could, if accepted by the jury, support a conclusion of appropriation included the following: (a) James Hunt, a director of HBL and the Appellant's brother-in-law, gave evidence that after having been contacted by the police he conducted his own investigations which revealed that money had been taken. The financial performance of HBL was markedly down in the years when the Appellant worked there. (b) Experts agreed that the poor accounts of HBL were such that misappropriation could not definitively be shown, but equally that misappropriation was a possible explanation for accounting irregularities. (c) It was admitted that the Appellant had lied in his account opening documents to HSBC and Lloyds about his income and employment. (d) The total cash paid into the Appellant's account whilst employed at HBL was £398,317. The Crown's case was that there was no objective explanation as to how the cash had been generated. There was no evidence that this was from some other legitimate source. Indeed, there was positive evidence that there was no such source. On the contrary, it was an agreed fact at trial that the Appellant had not operated any other business(es) in Jersey or in the UK and he was not employed elsewhere. The evidence from the Crown's expert was that there no evidence from the Appellant's accounts to suggest that he was engaged in trading, online or otherwise or in a gambling enterprise.

33. As will be discussed in more detail below under Ground 3, no one would quarrel with the proposition that the Appellant was entitled to exercise his right to silence, and that (especially at the stage of a no case to answer submission, at which point the sole question is whether the Crown had led a sufficiency of evidence upon which a reasonable jury might be satisfied to the relevant standard) his choice to exercise that right should not be held against him.

34. Equally, however, this is not a case in which the only evidence was lack of an innocent explanation for substantial deposits made into the Appellant's bank account. The other evidence, in particular that from James Hunt and the experts, as well as the admitted facts, was such that it was open to a reasonable jury to infer that appropriation had taken place. The prosecution's case was one of circumstantial evidence with multiple strands, in the form of large cash deposits, no legitimate income sources, business performance collapse, coinciding cash movements, and lies on account documents. There was evidence - beyond that of a tenuous character or self-contradictory testimony - pointing to guilt. Holding that this evidence could persuade a reasonable jury of guilt, to the required standard of proof, does not involve "picking out all the plums and leaving the duff" ( R v Shippey [1988] Crim. L. R. 767 ) - rather it involves understanding that the assessment of conflicting inferences is quintessentially a jury task.

35. Here, we find helpful the decision of the Scottish Sheriff Appeal Court in Liu (Baijun) v Procurator Fiscal, Stirling 2024 SCCR 208 , although we instantly recognise that this case must be read with two things in mind - first, that (unlike the law of Jersey) Scots law requires corroboration of every factum probandum , and second that Liu was a case dealt with under Proceeds of Crime legislation, in which certain presumptions, not appropriate in a case such as this, apply. With those caveats in mind, we note that the Court in Liu said - : "[18] ... We consider that the absence of an innocent explanation means no more than this - where the circumstances are such as to give rise to the inference that the cash in question is criminal property that inference may be rebutted if evidence of an innocent explanation is led; if no such explanation is offered there can be no such rebuttal . Evidence of an innocent explanation may make it more difficult for the Crown to prove its case beyond reasonable doubt but it has no part to play in the assessment of sufficiency at the stage of a no case to answer submission. [19]. In the present case there was in our view sufficient evidence to support the inference that the appellant had committed the offence. It was agreed that the appellant operated the account in question. The pattern of the cash payments into and out of her account

was unusual. These were large sums compared to the amounts which were transferred in electronically. ... In our view the issue is one of context. The total sum in the present case was a large one in the context of the bank account of a student who was restricted in terms of any employment and the cash sums deposited were much larger than any incoming electronic credits. The source of the cash was not traced, nor were the ultimate destinations of some of the transfers out of the account. In that context the quantities of cash and the movement of the sums into and out of an account operated by the appellant are capable of supporting the inference that the funds were criminal property as defined in the Act and that the appellant must at least have suspected that to be the case . It follows that we consider that there was a sufficiency of evidence without taking into account the absence of an innocent explanation, so that the submission of no case to answer was bound to fail." 36. Similar considerations apply here. There, as here, it was not a question of looking solely at the absence of an innocent explanation (and thereby transgressing upon the right to silence). Rather, there was positive evidence which, if accepted by the trier of fact (the Sheriff in Liu and the jury here) would have justified a finding of guilt. The jury was not bound to accept the evidence of James Hunt; but

if it did so then there was sufficient in the way of circumstantial evidence to allow the inference that the substantial sums of money deposited in the Appellant's account derived from what Mr Hunt described as missing funds from HBL. In drawing that inference, the jury would be entitled to take into account the fact that the experts agreed that there were accounting irregularities in the books of HBL which could have been explained by misappropriation, as well as the admitted facts of what the appellant had said in the account opening documentation about his income and employment and that he had never registered or operated a business in Jersey. Such facts, if found by the jury, were clearly capable of establishing that the Appellant had told significant lies in relation to his income.

37. The question at this stage was whether no reasonable jury could have drawn an irresistible inference of appropriation. That would be the case if, for example, there was no evidence whatsoever that money had been taken. However, that is not this case. There is a significant difference between evidence which is simply not there, and evidence which exists but which has potential weaknesses. The present case is in the latter category - evidence was led which was potentially incriminatory. Precisely what to make of that evidence, in the context of the trial as a whole, was a matter for the jury.

38. There was thus no error in the decision to refuse the no case to answer submission. This ground of appeal is refused. Our assessment - Ground 2 39. We see nothing in Ground 2. There was no need for a "stand alone" direction as to appropriation - all that was needed was that the Jury be directed, as it was, of the need to be sure that appropriation had taken place. The Commissioner expressly directed the jury of the core components of larceny by a servant, and said that they might "conclude that the central issue for you to decide is element (ii)" - that is to say, "that, whilst so employed, [the Defendant] took cash belonging to HBL". That was an easily understood description, in plain English, of the notion of appropriation. Nothing more was needed.

40. At trial, the defence understandably focused their submissions in making a forceful attack on the cogency of the Crown case on appropriation. We do not consider that there is any material risk that the jury misunderstood the need for the Crown to prove that essential element of the offence to the criminal standard.

41. This Ground is also refused. Our assessment - Ground 3 42. The Appellant complains that, in directing the jury on the question of circumstantial evidence, the Commissioner said this: "No evidence has been adduced by the Defence/Defendant to explain the origins of the cash paid into the Defendant's bank accounts".

43. It is said that this involves inviting the jury to draw an adverse inference against the Appellant as a result of his exercise of the right to silence.

44. However, it is important to read the Directions as a whole. These included the following: "2. Burden and standard of proof The prosecution bring this case and they must prove it. The Defendant does not have to prove anything, let alone his innocence. He does not have to give evidence nor does he have to call witnesses...

3. No more evidence The evidence in this case is at an end. There will be no more. Each side has had the opportunity to lay before you what they think appropriate in this case and the Defendant, as is his right, has chosen not to give evidence but the Defence have called expert evidence from Ms Scott. You must decide the case on what you have heard. You must not speculate on what other evidence may have been given, in particular do not speculate about what the Defendant may or may not have said had he given evidence...

4. Defendant not giving evidence The Defendant has chosen not to give evidence in this case. The Defendant was not obliged to give evidence and you must not hold his decision not to give evidence against him. It does nothing to establish his guilt, but it does mean that there is no evidence from him to undermine, contradict or explain the evidence led by the prosecution.

5. Defendant's no comment interviews Similarly during the course of four interviews under caution between August & December 2019, the Defendant responded "no comment" to all questions asked of him by the police. That was also his right and you should not hold this decision against him." 45. Accordingly, the Jury could not have been in any doubt about the right to silence, or the fact that his choice to exercise same should not be held against him.

46. Moreover, in the Direction complained of (quoted at paragraph 44 above), the Commissioner was merely explaining pieces, or strands, of evidence, and how the jury might fit them together. In the assessment of the evidence as a whole, against a background of positive evidence led by the Crown to exclude any legitimate provenance of the money shown to have been in the Appellant's account, we see nothing unfair or erroneous in recognising that no legitimate source therefor had been suggested.

47. On this point, we again consider helpful the recent decision of Liu , cit.sup , as follows: "[22]. There simply was no innocent explanation apparent in the evidence for the depositing of £16,850 in cash into the appellant's account between 20 February 2021 and 23 April 2021. The sheriff had limited information about the appellant's circumstances. Accordingly there was no basis on which he might infer, for example, that she was receiving funds from her family; that would have amounted to speculation on his part. By coming to that conclusion that there was no innocent explanation the sheriff did not err, nor did he place an evidential burden on the appellant or invert the onus of proof by so doing. His conclusion did not compromise the presumption of innocence, nor the appellant's right to silence. His conclusion did not breach the appellant's right to a fair trial in terms of Article 6 of the European Convention on Human Rights. As we explained in paragraph 18 above, an innocent explanation might have rebutted or at least cast doubt on the drawing of the adverse inferences which formed the basis of the Crown case, but the absence of one does not of itself advance the Crown case. [23]. For reasons already stated, we consider that there was a sufficiency of evidence in this case and that the sheriff was entitled to draw from it the inferences which he did. It follows that

we consider that he was entitled to convict the appellant." 48. A similar approach applies in the present case. It is clear from the Jury's verdict that they considered that appropriation had been established to the criminal standard. In coming to its conclusion in that regard, where the circumstances were such as to justify the inference that the cash in question had been appropriated, the Jury would be entitled to conclude that that inference might be rebutted if evidence of an innocent explanation was led; and equally that if no such explanation was offered there could be no such rebuttal. As Advocate Preston put it, the lack of explanation for the cash was mentioned only as a factual gap, not as a basis for inference of guilt. That is a legitimate approach which does not offend against the right to silence. There is no question of reversal of the legal burden, or even the imposition of an evidential burden - the Jury was repeatedly reminded that the burden rested on the Crown throughout. At most, the Direction complained of might have suggested a tactical burden - namely, one which involved a "tactical evaluation of how an issue is likely to be decided on the evidence as it currently stands and unless further evidence is adduced": JSC BTA Bank v Mukhtar Ablyazov [2018] EWCA Civ 1176 at [27]. There is no legal difficulty with a tactical burden that moves in the course of a trial, as long as it is recognised that the legal burden throughout rests on the Crown. A tactical burden in such circumstances is merely part of the process of deductive reasoning - if the evidence in a trial taken as a whole points towards Conclusion A, then, absent evidence which at least raises a reasonable doubt on that matter, a Jury is likely to find Conclusion A established.

49. The Commissioner gave the standard directions: the defendant was not obliged to give evidence, nor could the jury treat his silence as strengthening the prosecution case or as proof of guilt. There is no reasonable basis upon which we might conclude that they ignored that direction.

50. For these reasons, Ground 3 is also without merit. Conclusions 51. For the reasons set out above, we can identify no basis under Article 26(1) by which the appeal could be allowed. The verdict was not unreasonable and it could be supported having regard to the evidence; and we can identify no material wrong decision on any question of law; nor was there any miscarriage of justice. The appeal falls to be dismissed. Authorities Proceeds of Crime (Jersey) Law 1999. AB v HM Attorney General [2023] JCA 228. Court of Appeal (Jersey) Law 1961. Younis Masih [2015] EWCA Crim 477 . R v G & F [2012] EWCA Crim 1756 . Bhojwani v AG [2011] JCA 034 . Freeman and Crawford [2009] 1 Cr App R 11 . R v Shippey [1988] Crim. L. R.

767. Liu (Baijun) v Procurator Fiscal, Stirling 2024 SCCR 208 . JSC BTA Bank v Mukhtar Ablyazov [2018] EWCA Civ 1176. Page Last Updated: 22 Dec 2025 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII