Post‑dated Regulatory Inspection Evidence Admissible to Prove Dishonesty and Motive in Fraud Involving Building Control Certificates

1. Introduction

The applicant sought renewed leave to appeal against conviction following a refusal by the single judge. He had been convicted after trial of:

• Two counts of making or supplying articles for use in fraud (Fraud Act 2006, s.7(1))—allegedly false Building Control Completion Certificates for (i) 36 flats in the “Grosvenor Development” and (ii) one house in the “Borough Green Development”; and
• Seven counts of fraud (Fraud Act 2006, s.1), alleged to have been committed by failing to disclose to purchasers that the properties had not been certified complete by the relevant local authority building control department.

The central trial issue was provenance and knowledge: whether the applicant created/supplied the 36 certificates dated 31 August 2018 and whether he believed they were genuine. The renewed application focused on a single evidential point: the admissibility (and non-exclusion) of building fire-safety inspection evidence from January and May 2020, which post-dated the charged period (August 2018 to July 2019).

2. Summary of the Judgment

The Court of Appeal refused renewed leave. It held that it was not arguable that:

• the Recorder erred in treating the 2020 inspection and fire risk assessment evidence as relevant and admissible, notwithstanding that it post-dated the alleged frauds; or
• the Recorder’s refusal to exclude that evidence under section 78 of the Police and Criminal Evidence Act 1984 (PACE) involved any arguable misdirection or improper exercise of discretion.

The court also rejected complaints about the summing up on this material, noting that the point had not been raised with the trial judge at the time.

3. Analysis

3.1 Precedents Cited

No earlier case authorities are expressly cited in the transcript. The court’s reasoning proceeds by applying orthodox principles of:

• relevance (whether evidence assists the tribunal of fact on a matter in issue);
• discretionary exclusion under PACE s.78 (whether admission would have such an adverse effect on fairness that it ought not be admitted); and
• appellate restraint in reviewing trial-level evidential discretion (intervention only where an arguable error of principle or plainly wrong evaluative judgment is shown).

3.2 Legal Reasoning

(a) Why post-dated inspections were treated as relevant

The applicant’s argument was that 2020 fire-safety findings were irrelevant to the 2018 question: who issued/created the 36 certificates and whether the applicant believed them to be genuine. The Court of Appeal rejected the premise that chronology alone defeats relevance, holding that:

• “The fact that the reports post-dated the events is irrelevant.” The later findings could still illuminate whether the applicant’s earlier assurances (about required fire stopping/compartmentation) were reliable and whether his asserted belief in certificate genuineness was credible.
• The Recorder was entitled to view the certificates and subsequent interactions with building control as part of an “entirety” of conduct: the prosecution case included that genuine certificates were later obtained (for many flats) on the basis of undertakings that remedial work would be done; the 2020 material was capable of showing that such remedial works had not, in fact, been done.

In short, the evidence was treated as probative of (i) dishonesty/knowledge (whether the applicant was falsely representing compliance), (ii) credibility (whether his account that he believed certificates were genuine could stand against persistent defects), and (iii) narrative coherence (avoiding a potentially misleading picture if the jury heard only that genuine certificates were later issued for many flats).

(b) Motive and “who created/supplied the false certificates”

The Court of Appeal accepted that the 2020 reports were also relevant to motive: they tended to support the prosecution contention that the applicant used false certificates to facilitate early sales and cashflow in circumstances where final sign-off might be jeopardised by unresolved compliance issues. While motive is not an element of the Fraud Act offences, the court treated it as capable of assisting the jury on the contested factual question of authorship/supply of the false certificates and the applicant’s intent in supplying them.

(c) Section 78 PACE: managing prejudice without excluding the evidence

The applicant emphasised prejudice: that the jury might be influenced by fire-risk evidence into thinking the applicant endangered lives, despite no health and safety charges. The courts addressed this in two ways:

• Targeted limitation: the Recorder excluded evidence about the potential consequences of non-compliance (described as an “intolerable risk to life”), thereby reducing emotive or inflammatory impact while preserving probative aspects.
• Balancing conclusion upheld: the Court of Appeal found it unarguable that the Recorder’s fairness assessment under s.78 was wrong, describing no arguable improper exercise of discretion.

This illustrates a common evidential technique: where evidence is relevant but carries risk of unfair prejudice, the solution may be controlled admission (redaction/limits/directions) rather than outright exclusion.

(d) Disagreement by the building control manager did not defeat admissibility

The applicant relied on the evidence that the building control manager disagreed with aspects of the 2020 reports. The Court of Appeal held this did not undermine admissibility; if anything, it could assist the defence. The point is doctrinally important: disputes about the weight or interpretation of admitted material typically go to evaluation by the jury, not to a threshold bar on admissibility.

(e) Summing up complaint

The court rejected an argument that the summing up failed to explain relevance adequately, noting the point had not been raised at trial. While not a formal waiver rule, this signals the appellate court’s practical reluctance to entertain summing-up complaints divorced from contemporaneous objection, especially where the complaint is deployed to repackage an evidential-discretion challenge.

3.3 Impact

Although this is a refusal of renewed leave (not a fully reasoned merits appeal), it provides a clear statement of approach likely to be relied upon in fraud and regulatory-adjacent prosecutions:

• Later inspection findings can be relevant to earlier fraud allegations where they illuminate whether asserted compliance was real, whether assurances were trustworthy, and whether claimed belief in document genuineness is credible.
• Relevance is contextual, not purely temporal: the court endorsed a “whole course of conduct” lens where later events help explain the acquisition, use, and attempted replacement of disputed documents.
• Section 78 challenges face a high appellate hurdle where the trial judge (i) identifies the probative purpose, (ii) addresses prejudice, and (iii) uses tailored restrictions to mitigate unfairness.

Practically, parties should expect that in document-fraud cases tied to compliance regimes (building control, licensing, certification), the prosecution may legitimately rely on later regulatory findings to show that earlier representations were false or knowingly unreliable—provided the evidence is put to a legitimate issue (knowledge, dishonesty, intent, credibility, narrative).

4. Complex Concepts Simplified

• “Making or supplying articles for use in fraud” (Fraud Act 2006, s.7(1)): an offence focused on creating/providing items (here, certificates) intending that they be used to commit or assist fraud.
• Fraud by non-disclosure: the prosecution case (as described) alleged sales proceeded without telling buyers a valid completion certificate did not exist. In fraud law, liability can arise where there is a legal duty to disclose and the failure is dishonest.
• Relevance: evidence is relevant if it makes a fact in issue more or less likely. It can be relevant even if it arises later, if it sheds light on earlier disputed facts.
• PACE s.78 discretion: even relevant prosecution evidence may be excluded if admitting it would make the trial unfair. Courts often manage risk by limiting what is said (for example, excluding dramatic consequences) rather than excluding the entire topic.
• “Unsafe” conviction: on appeal, the question is whether the conviction is reliable in light of any legal/procedural error. Disagreement with a discretionary evidential ruling is not enough unless a material error of principle or unfairness is shown.

5. Conclusion

The Court of Appeal’s decision confirms that post-dated regulatory inspection evidence may be admissible in a fraud trial where it helps the jury assess dishonesty, knowledge, motive, and credibility concerning the creation and use of allegedly false compliance documents. The judgment also exemplifies the deference appellate courts give to trial judges’ evaluative decisions on relevance and on PACE s.78 balancing—particularly where prejudice is mitigated through careful limits rather than blunt exclusion.