Embezzlement conviction appeal refused despite no finding in fact of ‘dishonest appropriation’

A sales executive who was convicted of embezzling more than £8,000 from his employers has failed in an appeal against conviction despite that fact a sheriff made no finding in fact of “dishonest appropriation” of the cash.

The Criminal Appeal Court ruled that while it was “regrettable” that there was no finding relating to “dishonest intention” it was clear that the sheriff had made an “inference” of dishonesty from the actings of the accused.

The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Drummond Young, heard that the appellant Andrew McCraw was convicted in June 2015 at Aberdeen Sheriff Court on a summary complaint libelling a charge that he embezzled £8,334.80 from Swire Oilfield Services while employed as a key account manager.

The evidence for the Crown came from two employees of Swire Oilfield Services, who raised concerns about his “unauthorised expenditure”.

The appellant informed the HR manager that he had had trouble with his brother-in-law and needed some £10,000 to pay what was essentially blackmail, and that he was using company money to pay him.

He also told the company’s commercial director of a “family problem” involving his sister’s ex-partner blackmailing him.

In due course the appellant gave evidence, but his explanations were disbelieved by the sheriff.

At the conclusion of the Crown case, a “no case to answer” motion was made, but the sheriff repelled that submission.

Having convicted the appellant in terms of the libel, he went on to make certain findings in fact, including that the appellant was “reckless” in the use of the company credit card and that he had said that he had been under “financial pressure” due to the demands of his brother-in-law.

It was not clear what the sheriff made of what the appellant had said about being blackmailed, but he made no finding that the cash withdrawals were to pay the blackmailer.

What the sheriff did not do was make a specific finding in fact in relation to the dishonest appropriation of the funds, but in his note to the stated case, he reported that “in the absence of any bona fide explanation which is acceptable to the court, it is quite open in a case of this kind for a dishonest intent to be inferred from the actings of the accused person”.

Nevertheless, the submission on behalf of the appellant was that the evidence was “insufficient” to prove that the appellant had appropriated the monies for his own use and had done so dishonestly.

It was argued that the court was “not entitled to go beyond the findings in fact” and that this was “fatal” to the conviction, given the absence of a specific finding of dishonesty.

However, the appeal judges refused the appeal after observing that there was “sufficient evidence” to show that the appellant had the use of a company credit card for legitimate business expenditure, and that there were withdrawals which went “beyond the scope” of his employment.

Delivering the opinion of the court, the Lord Justice General said: “The appellant had been asked to provide an explanation and vouchers for this expenditure, but he had failed to do so. There were sufficient facts and circumstances to allow an inference of dishonest appropriation to be made.

“The relevant intent required for embezzlement does include dishonest intention to appropriate the money without consent, but intention may be inferred from acts which are either deliberate or reckless.

“There was evidence of appropriation by the appellant of relatively significant sums and an inability or refusal by him to account for them. There was evidence of reckless use by the appellant of the company credit card.

“In these circumstances, this was sufficient to infer the necessary intent.”

He added: “It is certainly true that there ought to have been a finding in fact specifically dealing with dishonest intention. It is regrettable that that was not made.

“However, as in Walton v Crowe 1993 SCCR 885, where it is clear from a sheriff’s note that he has made an inference of fact, in this case one of dishonest appropriation, the court can take into account the content of that note in supplying the deficiency which is patent on reading his findings in fact.

“In these circumstances the questions will be answered in the affirmative and the appeal will be refused.”