Court of Appeal 11 July 1974 Andrew Wilsher Cunningham

Comment

This is unredacted

Application was granted and sentenced reduced from 5 to 4 years.

For an Index /Timeline of Court Appeals on Cathy Fox Blog see [1]

It is relevant to the John Poulson Affair

[1974] EWCA Crim J0711-1

No. 2009/R/74

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Thursday, 11th July 1974
Before:-

Lord Justice Edmund Davies

Lord Justice Scarman

and

Mr. Justice Kilner Brown

Regina
v.

Andrew Wilsher Cunningham

(From the Shorthand Notes of Cherer & Co., 34 Essex Street, Strand, London,
WC2R 3AT. Telephone Number: 01-583 4121. Shorthand Writers to the Court.)

MR. A.C. MacDONALD appeared on behalf of the Applicant.

MR. F. J. MULLER appeared for the Crown.

JUDGMENT

(Revised)

LORD JUSTICE EDMUND DAVIES : Last April at the Leeds Crown Court Mr.
Justice Waller dealt with an indictment involving four accused, John Poulson,
Andrew Cunningham, Mrs. Cunningham and T. Dan Smith, the indictment
containing in all 17 counts. The Applicant today, Andrew Wilsher
Cunningham, pleaded guilty to one offence of conspiracy to commit
corruption and to eight specific charges of corruption. On the 26th April
he was sentenced to five years’ imprisonment on the conspiracy count and to
twelve months’ imprisonment on each of the eight specific counts, the
sentences being so arranged that he was sentenced to serve in all five
years’ imprisonment. As the question of
disparity of sentences has been extensively canvassed before us by learned
Counsel for the Applicant, it is necessary to say something about what
happened to the other co-accused.

Poulson, An Architect Practising In Pontefract, Also Pleaded Guilty To The
Conspiracy Count And To Eight Corresponding Corruption Counts And He Was
Sentenced To Seven Years’ Imprisonment In All. T. Dan Smith Again Pleaded
Guilty To The Conspiracy And To Four Corruption Counts And He Was Sentenced
To A Total Of Six Years’ Imprisonment. In His Case Three Other Offences
Were Taken Into Consideration. It Is To Be Observed That Those Three Other
Offences Involved Conspiracies Concerning Corruption Of Three Councillors
Disconnected With The Present Case. It Did Not Stop There, Because Smith
Also Pleaded Guilty To A Second Indictment Charging Conspiracy With Poulson
In Relation To Smith’S Position As Chairman Of The Peterlee And Aycliffe
Development Corporation In County Durham. He Was Sentenced On That Second
Indictment To Another Six Years’ Imprisonment, But To Be Served
Concurrently. In Relation To That Second Indictment He Had Procured
Contracts For The Poulson Organisation Which Would Have Brought Them In
Fees Of Between £350,000 And £400,000, Had Their Plans Been Brought To
Fruition. Mrs. Cunningham Pleaded Not Guilty To The Conspiracy Count And To
Three Of The Corruption Counts (Numbered 3, 9 And 13), And In Her Case The
Indictment Was Ordered Not To Be Proceeded With Without The Leave Of The
Court.

Andrew Cunningham now applies for leave to appeal against the sentences
totalling five years. The case is one of grave public importance. In 1962
there arose between Poulson and T. Dan Smith a relationship whereby Smith
set out to procure architectural commissions for the Poulson organisation.
To facilitate that end Smith proceeded to form a series of public relations
companies. Having done so, Smith then employed as “consultants” a number of
men in local government and their job it was to influence their respective
Councils to give work to the Poulson organisation. One of the men recruited
by Smith for those corrupt purposes was this Applicant, Andrew Cunningham,
who joined the Poulson forces at the beginning of 1963. Up to then he had a
long and honourable record in public and trade union affairs. Indeed he was
described by Crown Counsel, not without good grounds, as undoubtedly the
most powerful man in County Durham.

During the period involved in the indictment, that is to say 1960-1970, he
held, amongst others, these appointments: He was from 1953-1967 Chairman of
the Felling Urban District Council Housing Committee; from 1963-1965
Chairman of the Durham County Council; he was Chairman of the Northumbrian
River Authority from 1964-1968, and of the Police Authority from 1964-1973.
He was one of the first members of the Northern Economic Planning Council
on which he served from 1965-1969 and of which Dan Smith was the Chairman.
From 1964-1969 he held Her Majesty’s commission as a Justice of the Peace.

The matters in which he was involved fall under four or five heads. We deal
first with the Felling Urban District Council. According to Mr. Donkin, the
Clerk to the Council, this Applicant was the real power and the members,
particularly those of his own political persuasion, were reluctant to
disagree with him. According to the Prosecution, Cunningham used his
influence in the Council between 1963 and 1967 to secure as much work as he
could for Poulson. During that time the Council was engaged in three
particular schemes. First the erecting of multi-storey blocks at Nursery
and Crowhall Lanes. Secondly, the development of the town centre, and
thirdly the development of the area called Windy Nook. The Applicant
succeeded in securing for the Poulson organisation the architectural work
involved in all three schemes. As a result Poulson received £5,500 in fees
on the Windy Nook scheme – he claimed £10,000. His organisation received no
less than £250,000 in fees on the Nursery Farm and Crowhall Lanes scheme,
and £3,000 for the work done on the town centre scheme which ultimately did
not proceed to completion.

Next there is the matter of the Durham City Council, involved only in the
first conspiracy count. That Council, it appears, has always striven to
remain independent of the County Council and Cunningham was not a member of
it. On the instructions of Poulson and Smith he tried to influence the City
Council to engage Poulson and a property company in the redevelopment
scheme for the City centre. Those attempts were unsuccessful.

We turn now to consider his efforts in relation to his own trade union, the
General and Municipal Workers’ Union. As their Regional Secretary he used
his authority to secure Poulson’s engagement in respect of three buildings
which the Union had it in mind to have erected : One in Middlesborough, the
second in
Sunderland and the third in Whitehaven. In the case of the Middlesborough
and the Whitehaven projects Cunningham supported Poulson’s schemes although
it turned out that their cost went well beyond that which the Union ever
contemplated. For the Middlesborough project Poulson received in fees
£2,245 and for the Whitehaven project £1,650. The Sunderland project went
to him in the first place but it was handed over to one of his architects,
a Mr. Jowett, who took that project with him when he moved away from the
Poulson set-up.

Another matter of importance is that concerning the Northumbrian River
Authority. This Applicant as Chairman of the Authority secured Poulson’s
appointment as architect for the building of its new Headquarters. The
Prosecution used the phrase that the Applicant had “bulldozed” Poulson into
the appointment. The authority had contemplated a fairly modest building,
it appears, but Poulson proceeded to have plans drawn up for a building
which would cost £500,000. The Prosecution alleged that Poulson knew the
Ministry of Agriculture, Fisheries and Food would not make a grant towards
a building costing anything like that amount. But it is not clear that the
Applicant was in any way a party to the extravagance of such plans, and,
accordingly, we naturally do not hold that aspect of this particular item
against him. As it turned out, no loan was made, (not surprisingly), and
the Authority decided not to build the office. Nevertheless Poulson and his
organisation profited to the extent of £40,000 in fees for the work they
had done.

We must say lastly something about the Durham Police Authority. In 1969
Poulson was appointed architect for a scheme for new police headquarters at
Sunderland. This was done at the Applicant’s suggestion. According to the
evidence his suggestion could be taken only as an instruction, so powerful
was his personality and so strong his influence. Poulson received £12,000
in fees for that work. So much for Poulson’s substantial gains, thanks very
largely to the Applicant’s efforts and the exercise of his influence on
Poulson’s behalf.

But what did he, in his turn, get out of it? Between 1963 and 1969 he and
his family took no less than nine holidays; some in this country, some
abroad, at Poulson’s expense, the total cost of those holidays being about
£4,000. As an example, count 3 in the indictment related to a holiday in
Brighton in 1963. That was just eight months after the Applicant was
recruited into the Poulson ranks. Counts 7 and 15 related to holidays in
Portugal in April 1966 and in the summer of 1969. Altogether the
Cunninghams had no less than four holidays in Portugal paid for by Poulson.

A particularly distasteful aspect of this case, unhappily, relates to money
payments that were also made to the Applicant’s wife. The means whereby
this was achieved was a very ugly feature of the case. In November of 1965
Mrs. Cunningham was put on the books of one of Smith’s companies as an
employee and she was paid a regular salary of £60-£70 per month. In
September of 1967 she was transferred to another of the T. Dan Smith’s
public relations companies at a similar salary. Although all the
formalities of stamps and National Insurance were completed, the fact of
the matter is that she did absolutely no work for the companies and her
“employment” was wholly fictitious. It was simply the means whereby bribes
being paid into the coffers of the Cunninghams were concealed. The money
she received from the first of the companies, Claydan Public Relations
Limited, was paid into that company directly by Smith who had received it
in his turn from Poulson. The money from the second company, Vinleigh
Public Relations Limited, had been transferred from another of Smith’s
companies Into which he, Smith, had paid moneys which he in turn had again
got from Poulson. In December, 1968, Vinleigh Limited ceased to pay Mrs.
Cunningham, and in the following February Smith and the Applicant tried to
set up a scheme by paying the Applicant himself. But that did not succeed,
and so what next happened was that Mrs. Cunningham became employed (and one
needs to put the word “employed” in inverted commas) by Poulson’s service
company, Ropergate Services Ltd., in November 1969 by which time her
monthly salary had gone up to £125. That terminated in January, 1970, when
Poulson’s financial difficulties became absolutely overwhelming. The total
payments made in this way through this ruse were: from Smith companies
£2,383, and from Poulson’s Ropergate company £375.

There were other benefits which the Cunningham family received from Poulson;
Test Match tickets, hotel rooms and other benefits of that kind. The total
material benefits to the Applicant Cunningham and his family were about
£6,756. It is right to say that, before he was examined by Poulson’s
Trustee in Bankruptcy, the Applicant had paid back £4,000 of that £6,756.
When the Applicant was first asked about oaymeuts from Poulson
by the Solicitor to Poulson’s Trustee in Bankruptcy, his reply was that he
had simply engaged Poulson as an architect for some Union buildings. Mr.
Simpson, the Solicitor, followed that up by asking if payments had been
made to him because of the appointment of Poulson, and the Applicant made
denial that he had been in anyway influenced by any payments received. He
went further. He added that he had copy letters to prove that he had asked
Poulson to send him accounts for the holidays that he had enjoyed. At his
own private examination, Cunningham actually produced two documents which
he said were copies of letters sent to Poulson asking him to render
accounts for those holidays. But it is to be observed that the originals of
those two letters have never been found, and that the Prosecution alleged
that no such letters were ever sent and that Cunningham had never made any
attempt at repayment. Three of those holiday trips are the subject of
specific counts in the indictment, to all of which, as I have already
indicated, Cunningham pleaded guilty. So much for what I might describe as
the bare skeleton of the case.

We turn now to consider the man we are dealing with. He is now 64 years of
age. He was born in Felling in County Durham. He is a married man with
three children. He left school at the age of 14 and he has worked hard and
long since then; principally as an engineer in local firms over many years.
He became the Regional Organiser for his Trade Union in 1947. In 1964 he
rose to be their Northern Regional Secretary and a member of the National
Executive until his retirement as a result of this trouble in 1973.

His income varied; between 1965 and 1973 he was receiving something over
£10,000 per annum. He is a man with absolutely no previous convictions, and
that is not merely to be put in a negative way; he is a man who had earned
for himself an honoured name in his community and in Trade Union affairs.
It is a fact of life that prosperity brings friends and that adversity
tests them out. In his hour of adversity Andrew Cunningham did not lack
friends. One in particular, Lord George-Brown, gave evidence at his trial
on his behalf. He said that he had known Cunningham for 20 years and found
him a forthright, courageous and loyal public servant – an expert in social
welfare and education. Lord George-Brown said without him the Northern
it was. He recalled Mr. Gaitskell had held Cunningham in high regard and
had depended a great deal on his advice.

On his behalf at his trial, and again before us today, a number of matters
have been advanced by way of mitigation. His bitter regret for his criminal
misconduct is, we are told and we are certainly prepared to accept, very
real and sincere. As it was urged, his sincerity is best demonstrated by
his pleas of guilty which the learned Judge said he regarded as the
greatest mitigating factor. This Court always attaches great importance to
a confession of guilt, for it is in the public interest that guilty men
should confess their wrongdoing. We have been told of his magnificent
record of public service (in particular his honest and hard working
services to his Union), and that he was the driving force behind the very
successful housing record of the Felling Urban District Council. We have
been told, and we are prepared to accept, that he was recruited into the
Poulson ranks by Dan Smith at the end of 1962 by interesting him in a
project that would inevitably appeal to a man of his public spirit. His
sympathies being thus aroused he would regard his association with Smith as
one calculated properly to advance his hopes of social betterment for
others.

Mr. MacDonald has several times, but not once too often, stressed that what
this man did, albeit following upon corrupt gifts, he did because he
thought it was for the public good that those things should be done. It has
been urged further upon us, that this Applicant genuinely thought that
Poulson was the best architect for the jobs concerned, and that this was
true in relation to the River Authority, the Police Authority and the Union
jobs. This was a submission which the learned Judge obviously regarded with
substantial scepticism, certainly in relation to the River Authority, and
there does appear to be some ground for a degree of scepticism being
entertained in relation to that matter. Mr. MacDonald has urged upon us
that there were many other fields in which Cunningham could, had he been so
minded, have exerted his influence to direct work in Poulson’s direction,
but that he did not do so. We are asked to infer from this that he never
irecommended Poulson save when he was convinced that Poulson was the best
man for the job. as an example of that, one of the Poulson schemes – CSB or
Open System Building, as it was called – was never fostered by Cunningham
at all.

We have been reminded of the fact that the amount received was under £7,000
of which £4,000 has been repaid. It was said below (it has not been said
today but we have it in mind) that of necessity his present means are
modest and, furthermore, it was urged that these proceedings have been like
a nightmare hanging over his head for a very long time.

The learned Judge, understandably, regarded the case in a very grave light
and who with any degree of civic responsibility could take a different
view? In dealing with Cunningham and T. Dan Smith the learned Judge said:
“This case reveals the ultimate horror of corruption in my view. The guilt
of the person who offers a bribe may be grater or less than the person to
whom it is offered, but where, as in your case your position is one of
authority, the offence of receiving a bribe is great indeed. You two, each
in positions of responsibility and power, accepted money from Poulson
corruptly. In your case Cunningham not just accepted it – on one occasion
at any rate demanded it.” That was a reference to an occasion when in
January of 1966 Cunningham pressed upon Poulson the desire for his family
to make a second visit to Portugal – the second of the four visits which
they were ultimately to make. The learned Judge continued: “And there was
this elaborate system in which you were both involved, of payment of a
salary to Mrs. Cunningham, for doing nothing. The payments were fictitious
for fictitious employment, and were a deliberate and careful planning of
the payment of bribes so that nobody should know about it.”

Then he turned to Smith and it is right that we should also turn to Smith,
for Mr. MacDonald has invited us to have regard to the treatment meted out
to him. Smith, we should have said earlier, received between 1962 and 1969
no less than £156,000 from Poulson, which he proceeded to distribute to
himself and his companies. The learned Judge said: “In your case Smith you
received partly for yourself money, and partly to pass on as bribes to
others, and I am prepared to deal with you on the basis that the only
persons who it can be proved were bribed were those whom you have admitted,
namely Cunningham on the one hand, and the three others referred to in
three different Local Authorities on the other. Corruption is said to
spread like a disease, but this was a disease which appears to have been
deliberately spread
“by you.” Then turning back to Cunningham the learned Judge said: “You
Cunningham had great administrative power.” He referred to Lord
George-Brown’s testimony as to his ability and forthrightness and
continued: “Your strong character and ability to control committees
of-which you were Chairman were obviously great political assets, but
corruption undermined these, and you exercised your power ruthlessly in
some of the instances in this case, and the combination of political
manipulation with the receipt of bribes is one of the worst features of
this case. -Another feature is the acceptance of corrupt gifts when you
were in a position of considerable power.” Referring to the various
committees he said: “… in all of those cases you exercising influence in
receipt of those payments, exercising influence on behalf of Poulson who
made them.” He later said of both men: “Each of you has been guilty of a
great betrayal, because both of you were man of great public service with
vision, the support for your ideas, and for the improvement of your fellow
creatures, and it now turns out that, whereas they trusted you to be acting
without favour, in doing so they were being deceived.” He added that he
thought the harm that they had done, like a man named Pottinger whom he had
earlier dealt with, was incalculable.

“To these of us born on Tyneside,” continued the Judge, “you two, both of
you Tynesiders, engaged in Local Government in Tyneside – have disgraced
that Local Government in the eyes of the community, so that there are many
in this country who couple corruption In Local Government with the North
East. Insofar as they do, in my view you two are responsible, or greatly
responsible.” The learned Judge added that ho had to reflect that grave
situation in the sentences to be imposed in each case. He added, on the
other hand, that he would pay full attention to those matters urged in
mitigation, and we have already observed that the greatest mitigating
factor in his view was the pleas of guilty to all counts on which
Cunningham was indicted.

In our judgment, were we to consider in complete isolation the sentences
totalling five years, we should find ourselves obliged to say that they had
not been shown to be wrong in principle. It is true that Cunningham derived
over the years comparatively small material advantages and he has repaid a
substantial sum. But he had the heady satisfaction of exerting power, which
to a man of his driving force is in itself a rich and exhilarating reward.
He was a powerful agent from whom Poulson profited
considerably at public expense. But having said that, it appears to this
Court that there must be something wrong when Poulson, the arch-corrupter
whose influence spread far beyond this Applicant and whose material rewards
were so substantial, received sentences totalling seven years. That
conviction is deepened when we find that T. Dan Smith, Poulson’s
second-in-command, had actually recruited Cunningham and also pleaded
guilty to the second indictment in relation to Smith’s position as Chairman
of the Peterlee and Aycliffe Development Corporation Yet he received
sentences totalling only one year more than those imposed upon Cunningham.

If it be the case that Cunningham has received his proper deserts, the
other two ( Poulson of the same age, and T. Dan Smith four years younger)
have every cause to congratulate themselves on the leniency of their
sentences. If, on the other hand, they were adequately dealt with – and,
whether they were or whether they were not, their sentences cannot be
increased – strength is added to the submission made by his Counsel that
Cunningham’s five year sentence should to some extent be reduced.

Yesterday, we altered from five years to four the sentences for corruption
imposed last February by the same learned Judge on William George
Pottinger, a Civil Servant, and we have no doubt that when, in April, Mr.
Justice Waller proceeded to deal with Cunningham he had in mind the action
he had earlier taken in Pottinger’s case. Save that Poulson was the
corrupter in each case and that; before they met him, both had honoured
names, several distinctions need to be drawn. For example, Pottinger
received corrupt gifts totalling over £28,000 – Cunningham only £6,756, of
which he has repaid £4,000. Again, Pottinger is a man who had had far
greater advantages in the way of education and other disciplines and is
five years younger than the self-made man leaving school at 14 years of age
who by ability won for himself a high place in the North-East, and who,
unlike Pottinger pleaded guilty and so obviated a prolonged and expensive
trial. On the other hand, the greedy Pottinger contrived to extract much
for doing little, whereas Cunningham did a great deal for a far lower
monetary reward. It is an ethical problem of some delicacy whether the man
who encourages and accepts corrupt gifts and does nothing to further the
corrupt designs which prompted them is a greater or lesser offender than he
who
proceeds to perform the shameful services for which he has been hired. But.
as far as the public weal is concerned, it is far better that the corrupter
should be denied value for his bargain than that he should get his money’s
worth. In the former case some might argue that he alone is the loser,
whereas in the latter case both undoubtedly succeed in committing an
outrage against the community.

Weighing all these conflicting considerations and contras-ting features to
the best of our ability, and being only too conscious that perfect justice
is unattainable, we think that the nearest permissible approach to it will
be achieved by our effecting a similar reduction in the case of the present
Applicant to that effected yesterday, though for entirely different
reasons, in relation to Pottinger. But to go further would involve failure
to recognise adequately the extreme gravity of Cunningham’s inexcusable
misconduct over a substantial period of years.

We grant his application and, treating this as the hearing of the appeal,
allow it to the extent of reducing the sentence on Count 1 from five to
four years and by leaving untouched the twelve-month sentences passed on
the remaining counts and ordering that those imposed in respect of counts
11, 13, 15 and 17 be served concurrently with each other and with the
consecutive sentences passed on counts 3, 5, 7 and 9.

In the result Cunningham will serve in all four years’ imprisonment,
instead of five.

Please note that victims of abuse may be triggered by reading this information. The Sanctuary for the Abused [A] has advice on how to prevent triggers.  National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups. Other useful sites are One in Four [C]  and Havoca [D]. Useful post on Triggers [E]  from SurvivorsJustice [F] blog. Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.

Links

[1] Cathy Fox Blog 2015 May 8 [constantly updated] An Index / Timeline of Court Appeal Documents on Cathy Fox Blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

For an Index /Timeline of Court Appeals on Cathy Fox Blog see [1]

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

[B] NAPAC http://www.napac.org.uk/

[C] One in Four http://www.oneinfour.org.uk/

[D] Havoca http://www.havoca.org/HAVOCA_home.htm

[E] SurvivorsJustice Triggers post http://survivorsjustice.com/2014/02/26/triggers-what-are-they-and-how-do-we-work-through-them/

[F] SurvivorsJustice Blog http://survivorsjustice.com/

[G] Jim Hopper Mindfulness http://www.jimhopper.com/mindfulness/

[H] Jim Hopper Meditation http://www.jimhopper.com/mindfulness/#cultivate

This is all written in good faith but if there is anything that needs to be corrected please email cathyfox@bigfoot.com

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One Response to Court of Appeal 11 July 1974 Andrew Wilsher Cunningham

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