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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. IN THE COURT OF APPEAL CRIMINAL DIVISION CASE NOS 202102970/B3 & 202102971/B3 [2022] EWCA CRIM 1475 Royal Courts of Justice Strand London WC2A 2LL Friday 21 October 2022 Before: LADY JUSTICE SIMLER DBE MRS JUSTICE FOSTER DBE MRS JUSTICE TIPPLES DBE REX V DANIEL BURDETT RICHARD BURDETT __________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court) _________ MR J NUTTER appeared on behalf of Daniel Burdett MR J SMITH appeared on behalf of Richard Burdett _________ J U D G M E N T LADY JUSTICE SIMLER: Introduction 1. Daniel and Richard Burdett are brothers. On 19 August 2021, in the Crown Court at Manchester before Her Honour Judge Goddard QC and a jury, both were convicted of offences of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods, contrary to section 170 Customs and Excise Management Act 1979 . Richard Burdett was convicted of two such offences and had earlier pleaded guilty to fraud on 21 July 2020. He was sentenced by the judge to a term of 18 years' imprisonment, less the days spent in a foreign prison which were calculated and accounted for. Daniel Burdett was convicted of five such offences. He was sentenced to a total of 25 years' imprisonment, less the calculated foreign prison days. 2. Both applicants renew their applications for leave to appeal against conviction and for representation orders following refusal by the single judge. Both are represented by defence trial counsel who acted on their behalf below. Mr Nutter appears for Daniel Burdett. Mr Smith appears for Richard Burdett. Their essential case is that the trial judge erred in rejecting submissions of no case to answer in both cases. We are grateful to both counsel for their comprehensive written and concise oral submissions on these applications. The facts 3. There were two illegal importations in this case. On 20 April 2018 a heavy goods vehicle was stopped and searched entering the Port of Dover. Firearms, ammunition and silencers were found concealed within the vehicle. The driver was arrested, and the items were forensically analysed. DNA was discovered on both the packaging and on one of the firearms. Analysis of DNA recovered from a knotted clear plastic bag which contained rounds of ammunition revealed a mixed DNA result which indicated the presence of DNA from at least three individuals, including at least one man. Based on that finding it was possible to say that DNA from the mixed DNA profile was 370 million times more likely to have originated from Daniel Burdett and two other men than from three unknown men. The expert who analysed the DNA concluded that the results provided extremely strong support for the suggestion that the mixed profile contained Daniel Burdett's DNA. There was also analysis of DNA recovered from a handle of a revolver. That too revealed a mixed DNA profile, this time made up from four contributors. A complete major profile matching that of Daniel Burdett was found. Based on that finding it was possible to say that DNA in that mixed DNA profile was one billion times more likely to have originated from Daniel Burdett and three unknown people, than from four unknown people. The expert who analysed the DNA concluded that the results provided extremely strong support for the suggestion that the mixed profile contained Daniel Burdett's DNA. 4. On 1 September 2018 another heavy goods vehicle was stopped and searched at the Port of Killingholme. Firearms and ammunition were found concealed in plastic boxes. Again the driver was arrested and the weapons and other items were forensically analysed. DNA and fingerprints matching Richard Burdett was found on the packaging. DNA from Daniel Burdett was also found on packaging and on one firearm. The firearms comprised ten Heckler and Koch brand P2000 self-loading pistols. The serial numbers had been mostly removed. Pistols 1-4 and 6-10 were packaged with 25 live 9 x 19mm calibre bulleted cartridges. Pistol 5 was packaged with 26 9 x 19mm calibre bulleted cartridges. In each case the ammunition was suitable for use with the firearm with which it was packaged. 5. DNA matching Daniel Burdett was found on firearm 6 and on packaging from firearms 3, 4, 6 and 7. DNA matching Richard Burdett was found on packaging from firearms 6 and 9. Fingerprints matching Richard Burdett were identified at 16 locations on a black bin bag from which firearm 10 was recovered. 6. At the same time as the lorry driver of the second heavy goods vehicle was in Amsterdam, Richard Burdett's telephone was in the same district of Amsterdam. This is where the weapons were assumed to have been placed onto the vehicle. There was an unknown mobile phone user using a number ending 518 and it was the prosecution's case that this user was responsible for the provision of the weapons. There was, however, no telephonic link between Richard Burdett and the lorry driver or the unknown 518 mobile phone user. 7. The prosecution relied on Richard Burdett's movements to and from Amsterdam and Dublin during the period before and after importation. These were encapsulated in a sequence of events chart. The prosecution also relied on Richard Burdett's use of several mobile phones, one of which ceased use several days after the second importation was stopped. Richard Burdett was found with two encrypted phones on his arrest at Manchester Airport in April 2019. He refused to provide PIN numbers to the police in respect of those phones. He breached his bail and returned to the Netherlands where he was stopped by the police in July 2019. He produced a false passport to Dutch police on that occasion and ultimately was extradited to the UK in October 2019 to face these criminal proceedings. He gave a no comment police interview. Daniel Burdett was never interviewed by police. 8. The applicants both denied involvement in the importation of firearms. They accepted that whilst they could be linked to the firearms and/or to the packaging by forensic evidence, that by itself did not prove their participation in any importation, still less importation to this country. Neither gave evidence in his defence at trial. 9. The prosecution relied at trial on the DNA evidence as the principal evidence in the case. The DNA of Daniel Burdett was found, in summary, in the first importation on the bag of ammunition and the handle of the firearm. In the second importation, it was found on the clear clingfilm surrounding firearm 3, the heat sealed plastic around firearm 4, the clingfilm pouch surrounding firearm 6 and the creased edge of the packaging surrounding firearm 7. The prosecution also relied on circumstantial evidence and inferences in his case. 10. The case against Richard Burdett also rested principally on DNA and fingerprint evidence. In summary, this was found on the outside surface of the clingfilm pouch of firearm 6; on the outside surface of the clingfilm pouch of firearm 9, and the fingerprints on the black bin bag containing firearm 10. Then prosecution also relied on the sequence of events chart to which we have referred, his attempt to conceal his travel between the UK and Holland by the use of a false passport and his use of mobile phones and changes in use of mobile phones and numbers around the time of the importation. The submission of no case to answer 11. The applicants made a submission of no case to answer at the end of the prosecution case. That submission was essentially founded on the contention that DNA evidence on its own was insufficient in both cases. The judge rejected those submissions. In her careful ruling the judge summarised the fact that there were two separate illegal importations of firearms and ammunition into this country from the Netherlands and that Daniel Burdett was alleged to have been involved in both importations and was charged jointly with his brother in relation to the second importation. 12. The judge directed herself in accordance with the well-known principles set out in Galbraith (1981) 73 Cr.App.R 125. She said that she would have to decide if the prosecution case taken at its highest was such that a reasonable jury properly directed could convict each defendant. She was referred to Tsekiri [2017] EWCA Crim 40 , Jones [2020] EWCA Crim 1021 and Bech [2018] EWCA Crim 448 . We too were referred to those cases and have read them. The judge acknowledged that in Daniel Burdett's case, the prosecution largely, if not solely, depended on the DNA evidence. Nonetheless, as she recognised, a case can be left to a jury solely on the basis of the presence of a defendant's DNA profile on an article left at the scene in an appropriate case (see the Tsekiri factors). 13. So far as Daniel Burdett was concerned, Mr Nutter conceded that the DNA evidence was sufficient to establish a case of criminal possession within the Netherlands but not sufficient to found a case of importation into the UK. That is an argument he repeated before us. The judge however concluded that it was highly significant that his DNA was found, not only on the firearms, but on the packaging itself, which was a foundation for importation. The photographs showed the careful way items were packaged, with guns being wrapped in clingfilm, in plastic which was heat sealed and then brown plastic tape. It followed, she concluded, that the significance of the presence of Daniel Burdett’s DNA was enhanced by the way the items were packaged. She accepted, as the prosecution contended, that it was a reasonable inference for the jury to draw that the packaging of the firearms was for the purpose of the importation into the UK and not simply for possession within Holland. The absence of evidence of Daniel Burdett's presence in Holland or Amsterdam at the time of either importation, notwithstanding his arrest in the Hague in December 2019 and the absence of evidence of telephone links were not, she concluded, relevant to the half time submission which depended on the sufficiency or otherwise of the actual evidence. 14. The judge acknowledged that the jury would have to consider the evidence against each defendant separately but concluded that they would be entitled to consider all of the evidence in the case and would be entitled to take into account the fact that Daniel Burdett's brother was implicated in the placement of the firearms and ammunition onto the trailer in the Europaplein district of Amsterdam in September. Ultimately she concluded that the DNA evidence alone, bearing in mind that there were two separate importations where Daniel Burdett's DNA was found, together with the way the goods were packaged and in the absence of any innocent explanation for the presence of all the DNA, was sufficient evidence on which a reasonable jury properly directed could convict Daniel Burdett of being knowingly concerned in the fraudulent importation of the items on all counts. 15. For Richard Burdett, Mr Smith submitted, again as he did before us, that the evidence relied on by the prosecution based on the DNA evidence was so inherently weak and unsafe that the case should not proceed beyond the halfway point. On its own he submitted that the DNA evidence was insufficient. He suggested that the evidence pointed to RB residing in Amsterdam. The evidence about his phone usage in the same district and time as the lorry driver and the supplier were in contact was not so surprising given RB’s links to Amsterdam. The fact RB’s phone was contacting his partner at the same time as those engaged in the importation pointed away from guilt. Moreover, there was no DNA from Richard Burnett on the weapons themselves and his DNA was found only on the packaging. It was a mixed profile and that showed others had also had contact with those items. Richard Burdett did not immediately change his mobile phone after the importation, that was only done some six days later, and the fact he used a false name was of little assistance to the prosecution given his criminal past. 16. The judge once again accepted the prosecution contention that it was a reasonable inference that the packaging of the firearms in clingfilm, heat sealed plastic and brown tape was for the purpose of importation. She regarded that as significant in relation to the counts charged and to knowledge that the goods were to be illegally imported into the UK. She placed reliance on the evidence of Richard Burdett's presence in Holland as demonstrated by the sequence of events. In her sound ruling, she referred to the fact that there was no telephone evidence to connect Richard Burdett with the driver or with anyone else who might have been involved in the importation in September; nor was there evidence of meetings that could show his participation. Those were all valid points about the strength or weakness of the prosecution case that could be raised with the jury, but her task was to consider the sufficiency of the actual evidence. There was no evidence that Richard Burdett resided in Amsterdam and no explanation why he would travel via Dublin. No explanation had been provided to the police in interview for the presence of his DNA on the items seized. The judge looked at the evidence available by way of DNA; she looked at the presence in the same district of Amsterdam at the time the goods were handed over to the driver; she looked at the change in mobile phone usage a few days later, together with Richard Burdett's travel arrangements and the encrypted phones found on him. She concluded that the evidence as a whole could properly lead to the inference that he was knowingly concerned in the importation of the items and therefore there was a case to answer on which a reasonable jury properly directed could convict Richard Burdett on the counts that he faced. The application 17. Mr Nutter on behalf of Daniel Burdett repeats the submissions made before the judge. He referred to the joint expert report which could not say when or how the DNA came to be deposited. The DNA proved contact and might be said to have proved possession in Holland, but it went no further, and certainly did not make the leap to proving a case that Daniel Burdett was knowingly involved in the importations concerned. This is the crux of the case. The prosecution had to prove knowing involvement in importations and the evidence was simply not capable of doing that. He emphasised the inability to identify when the DNA was deposited and that it can persist for a considerable period of time. The earlier the deposit the less likely the connection with the importation is to have been and in all the circumstances the DNA evidence by itself came nowhere near to proving knowing importation. There was nothing in the sequence of events that supported the inferences relied upon by the prosecution either. 18. We have considered those submissions with care but have concluded that the application is not arguable. In considering and rejecting the submissions made in the court below, HHJ Goddard QC recognised correctly that the prosecution case was largely, if not solely, founded on DNA evidence. She applied the relevant law correctly and considered the factors relevant to cases resting solely or mainly on DNA evidence. She made no arguable error in doing so. 19. It is significant that the DNA on which the prosecution relied against Daniel Burdett was not only present in two unconnected importations from Holland to the UK, but also on the layered, carefully organised items of packaging. It was a reasonable inference that the packaging of the firearms in this way was for the purpose of the importation. All of the features to which the judge referred, and we have identified briefly, called for an explanation and were features the jury was entitled to rely on. In all those circumstances we are in no doubt that there was sufficient evidence on which a reasonable jury properly directed could convict Daniel Burdett of being knowingly concerned in the fraudulent importation charged. There was unarguably enough evidence for the case to continue and, notwithstanding the clear submissions advanced by Mr Nutter on this application, it is refused. 20. So far as Richard Burdett is concerned, Mr Smith submitted, as he did below, that the judge was in error in rejecting his submission of no case to answer. The prosecution case was inherently weak. 21. Mr Smith amplified that overarching submission, both in writing and orally. He submitted that the DNA evidence alone was insufficient for the reasons advanced by Mr Nutter. Moreover, the judge placed too much reliance on Richard Burdett's presence in Amsterdam as being supportive of the prosecution case in circumstances where there was clear evidence that he resided in Amsterdam in any event. She placed too much reliance on his silence in interview and her error in her first ruling was an error that reduces confidence in her ruling overall. There was simply insufficient evidence for a jury properly directed to convict and the case should not have proceeded. 22. Once again, and forcefully as those submissions were advanced, we do not regard them as arguable. Here too we can see no basis on which to conclude that the judge made any arguable error in her summary of the principles of law and in the factors on which she relied. As we have said, there was DNA from Richard Burdett on the outside surface of the clingfilm pouch wrapped around firearms 6 and 9 and there was fingerprint evidence on the black bin bag containing firearm 10. Again, it was open to the jury to conclude that the careful packaging of the firearms in this way was for the purposes of importation. In addition, Richard Burdett was in the same district of Amsterdam, namely Europaplein, at the same time as the user of the 518 number and at a time when that number was in contact with the lorry driver who was to drive the prohibited items into the UK. That was significant evidence (as the judge explained) in describing the movements of the user of the 518 number and the circuitous route that had been taken to Europaplein via Huizen, Alkmaar, Europaplein and then Hilversum, Utrecht and Lekkerkerk. There was evidence of the lorry driver's phone also using a mast in Lekkerkerk at the same time as the 518 user and being in contact with that 518 number. Even if Richard Burdett had an innocent reason to be in Amsterdam, or indeed Europaplein, it was the arrival of the unknown 518 user at the same time and in the same area of Amsterdam as Richard Burdett that was highly significant, both as the prosecution contended and as the judge concluded. In any event, the evidence did not show that he resided in Amsterdam. It simply indicated that he was there on numerous occasions. Evidence in the sequence of events showed his phone being used to call an Amsterdam taxi firm on various dates between 14 August and 7 September 2018. There was no evidence as to the location of the phones at that time. The restaurant card did not support the submission that he resided in Amsterdam, still less Europaplein. Indeed there was no evidence as to the location of his residence. As we have said, the significance of the location evidence was not so much that Richard Burdett was present in Amsterdam, but that he was in the particular district of Amsterdam when the unknown user of the 518 number travelled to the same district. Accordingly, it seems to us that it was an entirely proper and by no means too tenuous an inference, that the user of the 518 number travelled to Europaplein to meet Richard Burdett. 23. We acknowledge the factual error made by the judge in her first ruling. However, the judge corrected that factual error having heard further submissions, and her second ruling made no reference to it. 24. Finally, so far as Richard Burdett's silence in interview is concerned, it seems to us that the judge was entitled to rely on his silence in interview when considering the submission of no case to answer. R v Jones [2020] EWCA Crim 1021 is not authority for the proposition advanced by Mr Smith in writing. That case turned on its own facts as the court was at pains to emphasise. 25. These are all fact specific cases and ultimately this application, like Daniel Burdett's application, boils down to the question whether the evidence was sufficient to enable a reasonable jury properly directed to conclude that Richard Burdett was knowingly involved in the importation of the items concerned. We are in no doubt that is was, and there was no error or unfairness in the rejection of the half time submission in his case either. 26. For all those reasons, the application for permission to appeal is refused in Richard Burdett's case also. Accordingly, all applications are refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]	{"ConvCourtName":["Crown Court at Manchester"],"ConvictPleaDate":["2021-08-19","2020-07-21"],"ConvictOffence":["Being knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods, contrary to section 170 Customs and Excise Management Act 1979","Fraud"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes","No"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Manchester"],"Sentence":["Daniel Burdett: 25 years' imprisonment, less days spent in a foreign prison","Richard Burdett: 18 years' imprisonment, less days spent in a foreign prison"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["DNA match","Fingerprint evidence","Circumstantial evidence","Sequence of events chart","Mobile phone evidence"],"DefEvidTypeTrial":["No comment police interview (Richard Burdett)","No evidence of presence in Holland/Amsterdam (Daniel Burdett)","No evidence of meetings or telephone links (Richard Burdett)","No evidence of when/how DNA was deposited"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":[],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Conviction"],"AppealGround":["Trial judge erred in rejecting submissions of no case to answer","DNA evidence alone insufficient to prove importation","Judge placed too much reliance on presence in Amsterdam and silence in interview"],"SentGuideWhich":[],"AppealOutcome":["Dismissed","Application for permission to appeal refused"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge applied the law correctly","Sufficient evidence for a reasonable jury to convict","No arguable error in judge's ruling","DNA and circumstantial evidence sufficient","No error or unfairness in rejection of half time submission"]}
Case No: 2016 00318 & 00758 C2 Neutral Citation Number: [2017] EWCA Crim 34 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT SITTING AT SOUTHWARK HH JUDGE GOYMER T20127350 Royal Courts of Justice Strand, London, WC2A 2LL Date: 10.2.2017 Before: LORD JUSTICE SIMON MR JUSTICE NICOL and HH JUDGE MOSS QC - - - - - - - - - - - - - - - - - - - - - Between: The Queen and Respondent Christopher Lunn Appellant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Geoffrey Cox QC and Christopher Harding for the Appellant Carey Johnston QC and Valerie Charbit for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Simon: 1. On 3 December 2015 in the Crown Court at Southwark (before HHJ Goymer and a Jury), the appellant was convicted by unanimous verdicts of four counts of cheating the Revenue (counts 1-4). This was a retrial. At the first trial, which had concluded in January 2014, the Jury had been unable to reach verdicts on counts 1-4 and acquitted the appellant on two further counts of cheating the Revenue (counts 5 and 6). 2. On 11 January 2016, the appellant was sentenced to 4 years’ imprisonment on count 1, and 12 months on counts 2-4, concurrent to each other but consecutive to the 4-year term on count 1. The total term was 5 years’ imprisonment. 3. He appeals against conviction and sentence by leave of the Single Judge. An outline of the case 4. The appellant ran an accountancy business, both as a self-employed sole trader ‘(trading as Christopher Lunn & Company) and as the sole director and shareholder of a limited company (Christopher Lunn & Company Limited). The two firms were run as one business. For most of the period covered by the indictment the appellant was the only qualified accountant in the business. He hired a number of people with limited or no previous experience in preparing accounts and tax returns; and training was generally given to these people either by the appellant or by someone he had trained. 5. The prosecution case was that he had acted dishonestly with the result that the Revenue was deprived of tax to which it was entitled. 6. Count 1 related to accountancy fees charged by the firms to its clients. The accountancy fees were tax-deductible expenses; and the prosecution contended that the firms adopted the dishonest practice of entering standard and non-standard accountancy fees in the accounts and tax returns of clients that were higher than those charged to the clients, so that the figure for accountancy fees presented to the Revenue was falsely overstated and the tax payable by the clients was reduced, with a loss to the Revenue. Although the individual amounts were relatively small, it was a system that was applied over a number of years, across a large client base (which included members of staff) and the overall loss was significant. 7. The defence was that the appellant was not aware that false invoices representing inflated charges were being produced by his staff; and that in any event he had not been dishonest. It was also contended that he only acted as agent for the clients and it was they who benefitted from the overstatement of accountancy charges and not the appellant or his business. Furthermore, to the extent that figures for accountancy fees were inaccurate, there was no net loss to the Revenue because the full allowance which was available to the clients for the use of their home as an office had not been claimed. If the appropriate allowance had been claimed, it would have offset any overstatement of accountancy fees. These matters were set out in appellant’s defence statement dated 11 February 2013. It will be necessary to return later in this judgment to the last point, referred to in argument as the ‘no loss’ point and also (as we prefer to describe it) as the ‘home as office point’. 8. Counts 2 and 3 concerned what was said to be the dishonest manipulation of the accounts of two companies: Sno White Ltd (count 2) and Rain White Ltd (count 3). These were originally owned by clients. The appellant took control of the companies at a point where they had ceased to trade, with accumulated trading losses. The prosecution alleged that these trading losses were offset against fictional profits arising from fictional trades carried out with his own business which supposedly purchased services from these companies. The nature of the cheat was that the appellant included the costs of these services in his accounts as tax-deductible expenses, thereby reducing his firms’ tax bills. On count 2 the total loss to the Revenue was said to be £20,200 income tax and £10,100 corporation tax; and on count 3, approximately £39,850 in corporation tax. 9. The defence in relation to counts 2 and 3 was that the appellant acquired these companies because they had losses that could properly be used to reduce the profits and tax liabilities of his own and other associated businesses. As far as he was concerned, they were legitimate tax-saving schemes. The trade on each was similar to that of the previous businesses and, in any event, he did not act dishonestly. 10. Count 4 related to what was said to be the dishonest manipulation by the appellant of his firms’ accounts and those of a company called Carte Blanche Design Ltd, a company owned by his wife, by including false entries in his firms’ tax returns relating to services provided by Carte Blanche Design Ltd in order to reduce their tax liability. The total loss was said to be approximately £30,278.80. 11. The defence in relation to count 4 was that Carte Blanche Design Ltd was paid a reasonable sum for work that was legitimately done. There was no dishonesty and no cheat. Count 1 12. Count 1 was in the following terms. Statement of Offence Cheating Her Majesty, the Queen and the Public Revenue, contrary to Common Law. Particulars of Offence [The appellant] between 24 March 2003 and 31 December 2011 in connection with Christopher Lunn & Company and Christopher Lunn & Company Ltd cheated Her Majesty the Queen and the Public Revenue of income tax and corporation tax by dishonestly submitting or causing to be submitted tax returns and accounts on behalf of clients which were misleading in that they falsely overstated the amount charged for the accountancy services provided. 13. A number of issues were raised both at trial and on appeal in relation to the way in which count 1 was framed. First, it was said to be duplicitous. Secondly, because of the long period and the number of clients covered by the indictment, it was said to be contrary to the Criminal Procedure Rules (‘CPR’) and the Criminal Practice Direction (‘CPD’) relating to the drafting of indictments. Thirdly, and for similar reasons, it was contended to give rise to a trial process that was unmanageable and unfair. 14. The period covered by the count was 8 years and 9 months; and it was on this basis that the defence challenged the indictment at the retrial as it had at the first trial. 15. On 15 September 2015, the defence made an application that count 1 should either be quashed, or alternatively stayed as an abuse of process. 16. The Judge noted that it was similar to an application made in the first trial, and refused the application for the reasons he had given then. However, he noted that he had required the prosecution in the first trial to select specific transactions on which it relied, so that the trial would be manageable and the Jury could focus on the issues, and would keep the matter under review. Ruling in the first trial 17. In his ruling in the first trial the Judge had voiced justifiable displeasure that the application had been made on the first day of the trial, rather than at an earlier case management hearing, but recognised that it was a matter he had to deal with. 18. The Judge summarised the arguments on each side. The defence argued that count 1 was defective either for duplicity or for lack of particularity, and that it was faced with an impossible position because there were so many transactions relied on and so many different issues that arose. It would be difficult for the Judge to sum up; and if there were a conviction it would be impossible to know on what basis the Jury had convicted. The lack of particularity made it unfair for the defence and constituted an abuse of the Court’s process. 19. The prosecution contended that the framing of count 1 did not give rise to difficulty. The prosecution was alleging a course of conduct by the appellant when acting on behalf of his clients. It was a form of systemic dishonesty which had operated throughout the indictment period whose effect was to defraud the Revenue. 20. In his ruling the Judge identified three types of ‘duplicity’. First, where, on the face of the count, more than one offence was charged. Second, where, although the count appeared good on its face, the evidence established that more than one offence was committed, sometimes referred to as ‘divergence or departure’. Third, where the Judge, in the interests of justice, requires the prosecution to amend a count or elect on which, among many, counts to proceed. 21. The Judge identified the complaint as being about lack of particularity (the third category) and referred to rule 14.2 of the 2010 Criminal Procedure Rules and the relevant Practice Direction. He reminded himself that, even where the framing of a count was consistent with the Rules and the Practice Direction, the Court must be vigilant to ensure a fair trial. The defendant would have to know the case he had to meet, and the Court would have to understand from the Jury’s verdict, at least in general terms, the basis on which they had convicted. 22. The Judge considered that of the four elements set out in the CPD (which we set out below). Three of these applied. He referred to the case of Litanzios (1999) Crim LR 667 as support for the proposition that a count charging a cheat ‘over a substantial period of time’ was not objectionable where it related to a course of conduct, providing the details of the cheat were made clear. The longer the period, the more essential that the conduct was particularised. In the Judge’s view the real issue on the application was whether count 1 was so lacking in particularity that the defendant could not properly and fairly answer the allegations. The Judge expressed himself ‘wholly unpersuaded’ that there was any injustice to the defendant or an abuse of the Court’s process in the form of the count. Nevertheless, the prosecution would not be permitted to broaden the evidential scope and the matter would be kept under review. Grounds relating to count 1 23. The offence of Cheating the Public Revenue derives from the common law misdemeanour of cheating. Historically, the offence was broadly defined by reference to ‘deceitful practices’ which either defrauded, or endeavoured to defraud, another by dishonest means. For a history and analysis of the offence, see Hudson [1956] 2 QB 252 , Archbold 2017 §25-409 and Smith and Hogan Criminal Law 14th ed. §24.5. 24. Two linked points may be noted. First, to the extent that the distinction is relevant to identifying the actus reus , the offence of Cheating the Revenue can be either a ‘conduct offence’ or a ‘result offence’. Secondly, in the former case the prosecution does not need to prove an actual loss, see for example Hunt [1994] STC 819 at 826-827 and Attorney-General’s Ref No.8 of 2012 [2012] EWCA Crim 1730 at [46]. In the present case the prosecution took on the burden of proving a net loss to the Revenue and it is not clear why it did so. It may be that it felt that a loss to the Revenue would support its case on intent and dishonesty, or that it would inform the sentencing process if there were a conviction. In any event, the Judge directed the Jury that the prosecution bore the burden of proving a net loss to the Revenue in the light of ‘the home as office’ point. 25. So far as the arguments on duplicity and abuse of process are concerned, we consider that Judge’s ruling was correct and that Mr Cox QC was right not to pursue the points as such. 26. Duplicity is directed to the form of the indictment and count 1 did not charge more than one offence: it charged a continuing and systemic cheat. A stay of proceedings is generally directed to where it is necessary to protect the integrity of the criminal justice system or where it is impossible for the defendant to have a fair trial, see Archbold 2017 §4-75. In the present case the Judge exercised his case management powers with a view to ensuring that the appellant was not prejudiced in his defence and that his trial was fair. We consider below the criticisms of his trial management decisions. 27. Mr Cox was on firmer ground in his criticism of the period (8 years and 9 months) and the practical effect of the number of transactions covered by count 1. He submitted that the count was objectionable because the appellant did not know the case he had to meet and the period covered by the charge, and was, in any event, contrary to principles of elementary fairness, see for example, Archbold 2017 §1-237. 28. For the prosecution, Ms Johnston QC submitted that the number of routine overstatements of accountancy fees could not properly be reflected in counts reflecting the cheats in respect of individual clients. Such an indictment would have run to many hundreds of counts and would have resulted in the overloading of the indictment contrary to good practice. 29. Charging and the case management issues that arise from allegations of multiple offending have given rise to much discussion since the decision of this court in Canavan, Kidd & Shaw [1998] 1 Cr App R 79 . 30. In Barton v. DPP [2001] EWHC Admin 223 , a defendant had been charged on an information alleging the theft of £1,338.23 over a period of years. The Divisional Court (Kennedy LJ and Astill J) reviewed the authorities on ‘continuous offences’; and concluded that, although the individual appropriations were each capable of being separately identified, it was permissible to charge the whole course of conduct as a continuous offence because the defendant put forward the same defence in relation to all the takings. 31. The issues were the subject of a Law Commission Report: ‘Effective Prosecution of Multiple Offending’, Law Commission No.277 CM 5609, presented to Parliament in October 2002. The Report highlighted the problems of repeat offending with too many individual offences to be accommodated in a single trial, and referred to the ‘pragmatic arrangement’ of charging offences treated as specimens of a wider range of offending that was ‘thrown into disarray’ by the decision in Canavan, Kidd and Shaw . Paragraph 4 of the Report’s executive summary identified two fundamental principles: first, that a defendant should only be sentenced for that which he has admitted, or which has been proved following a trial in which the evidence can be examined; and secondly, that it should be possible to sentence for the totality of an individual’s offending; and a defendant should not escape appropriate punishment because the procedure cannot accommodate it. 32. The subject has continued to give rise to difficulty, see for example Tovey [2005] EWCA Crim 530 , Grout [2011] 1 Cr. App R 38, and the discussion in Archbold 2017 §5-91/94. 33. At this stage of the analysis the issue is primarily one of practicality and fairness, rather than sentencing, and this is addressed in the Criminal Procedure Rules. 34. The rule which applied at the material time was CPR rule 14.2 (2). It is now rule 10.2(2) and, for convenience we shall refer to the most recent version of the rules and practice direction. Rule 10.2(2) provides: More than one incident of the commission of an offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission. 35. CPD II §10A.11 (previously PD §14.A.10) is in the following terms. Crim PR 10.2(2) allows a single count to allege more than one incident of the commission of an offence in certain circumstances. Each incident must be of the same offence. The circumstances in which such a count may be appropriate include, but are not limited to, the following: (a) the victim on each occasion was the same, or there was no identifiable individual victim as, for example, in a case of the unlawful importation of controlled drugs or money laundering; (b) the alleged incidents involved a marked degree of repetition in the method employed or in their location, or both; (c) the alleged incidents took place over a clearly defined period, typically (but not necessarily) no more than about a year; (d) in any event, the defence is such as to apply to every alleged incident. Where what is in issue differs in relation to different issues, a single ‘multiple incidents’ counts will not be appropriate (though it may be appropriate to use two or more such counts according to the circumstances and to the issues raised by the defence). 36. Further guidance is provided by the observations of this Court in Hartley [2012] 1 Cr App R 7 , Hughes LJ (Vice President) at [22]. Where specific incidents are capable of identification … then ordinarily we would expect the indictment to contain a count referable and identifiably referable to that event so that the jury can determine it. That is subject to not, if there are hundreds of them, overloading the indictment with more counts than the jury can be expected to determine. Generally, it is necessary for those who are framing indictments to pay attention to any issues flagged up by what the defendant has said either in interview with the police or later in a defence statement. Ordinarily we would suggest where there is simply a complaint of a course of conduct over a period of months, often years, more than a single count for each period is usually appropriate, although one per year may well suffice if the alleged period is extended. But the overall principle is simply that regard must be had in an intelligent way to the possible views of the case at which a jury might arrive and to the position of the judge in due course should there be convictions. If thought is given to those questions we have little doubt that it will normally be possible to frame an indictment in a manner which enables the sentencing to be realistic and complies with the strict rules of law as set out in R v Canavan . 37. In the present case, the prosecution case was summarised in draft spread sheets which were said to show either (a) the charging of no fee for accountancy services and a claim for the costs of those services in the relevant accounts or claims presented to the Revenue, or (b) a claim for the costs of the services which was significantly higher than the amount actually charged and paid for those services. The draft spreadsheets identified the clients or members of staff and the relevant figures (including the arithmetical differences) in a readily comprehensible form. This was neither an uncommon nor an objectionable way of dealing with a charge of fraud or cheat. 38. The alleged transactions taken together plainly amounted to a course of conduct within the meaning of CPR Rule 10.2 (2) and was compliant with that rule. The victim was the Revenue and the transactions involved a marked degree of repetition in the method used. It would have been wholly impractical to reflect the alleged criminality by charging individual cheats based on individual clients and their accounts and tax returns over the number of years, since such an indictment would have run to many hundreds of counts. Nevertheless, we accept that a long period and large number of transactions covered by a single count may give rise to particular trial management and sentencing issues. We address these below. 39. So far as trial management was concerned, we cannot see that there would have been any great advantage in fragmenting the indicted period into counts covering a single year. The trial management issues in this type of case (and in this particular case) would be as likely to occur if there had been nine counts, divided up into what might have been arbitrary periods, as they would in a single count, see for example, Litanzios (above). We are fortified in this conclusion by the qualifying words in the practice direction, ‘not limited to’, to the further qualification in (c) ‘not necessarily’ and to the word ‘ordinarily’ in the ante-penultimate sentence in [22] of Hartley (above). 40. Nor are we persuaded that defences advanced at trial should necessarily determine the form of the indictment, although they plainly may, depending on the circumstances. 41. As to the periods covered by counts for this type of continuing offence, we do not think that it is either possible or desirable to set out any general statement of principle, beyond the observation that it is plainly sensible for consideration to be given as to the form of the indictment in good time before the trial begins so that the case can be properly managed in accordance with the principles that we have described above. 42. We will return later in this judgment to the sentencing issues, simply noting at this stage what was said by this Court in Dosanjh [2014] 2 Cr App R (S) 25 at [33] about the charge of Cheating the Public Revenue. It is recognised as the appropriate charge for the small number of most serious revenue frauds, where the statutory offences will not adequately reflect the criminality involved and where a sentence at large is more appropriate to one subject to statutory restrictions. These are not ‘ordinary’ cases. 43. It follows from the above, that we have concluded that the Judge was right to reject the appellant’s initial application as to the form and particularity of count 1; and that he was also right to make clear that the prosecution should not be permitted to broaden the evidential scope of the count and that the whole issue would be kept under review. The Judge was bound to apply the overriding objective set out in CPR Part 1 , and in this ruling he plainly did so. 44. The next procedural development occurred on the first day of the trial (17 September 2015), in relation to spreadsheets which were served by the prosecution. The Judge ruled that these could be placed in the Jury bundles as working documents that had not been agreed; and directed that the prosecution would have to prove the matters summarised in the schedules and, if it did not, the material would be removed. There is no current complaint about that ruling. In fraud cases, schedules summarising parts of the evidence are properly deployed so as to reduce the burden of the Jury in dealing with what would otherwise be a large number of documents. The trial was an EPE (electronic presentation of evidence) trial and the prosecution illustrated many of the underlying documents on screen. As the defence did not agree any of the entries on any of the schedules, it was necessary to show the jury that the entries were accurate and the Jury was shown the underlying evidence on screen. In fact, none of the figures were disputed. 45. Following this, the prosecution called a large number of witnesses (both clients of the firms and members of staff). 46. On 30 October 2014, the defence applied for further clarification of the charge in count 1 and, in particular, what was described as ‘the focus of the Crown’s case’. 47. Mr Cox pointed out that there were 400 potential transactions in the schedules and argued that this was an unmanageable number for the defence and the Jury to deal with. He applied for the prosecution to identify which transactions it relied on and a ruling that it be bound by that selection. His arguments were essentially directed at sensible case management and fairness. 48. The Judge indicated that, if the indictment had charged 400 or even 40 counts, he would have directed the prosecution to limit the charges in the interest of trial management. However, he declined to rule on the defence application because the prosecution had accepted that it would have to limit the number of transactions to a dozen or so, and give voluntary particulars in relation to these. 49. On 4 November, the defence made further submissions in relation to count 1. At this point the prosecution had confined its case to transactions relating to 15 particular individuals (11 clients and 4 members of staff). The defence complained that this number of transactions was itself unmanageable. Due to the long period covered by the indictment the jury would have to consider 99 transactions and even this reduced number was unmanageable. 50. The Judge rejected the complaint, ruling that the prosecution’s proposal to rely on any transactions associated with the 15 named individuals was a fair and reasonable balance that did justice to both sides. He declined to direct that the prosecution should further confine the number of transactions that the defence would have to deal with. The Jury would be directed that it was not necessary for the prosecution to prove that the appellant took part in every transaction and that it would be sufficient if the Jury was sure that he took part in three, provided it was sure of all the other elements of the offence and was agreed on the same three. 51. When it came to the summing-up the Judge directed the jury in line with this indication (at p.19B). Now in order to assist you, as far as Count 1 is concerned, in your task, the prosecution has focused on a relatively small number of transactions involving 15 clients or staff members, as listed in the particulars annexed to Count 1. You are entitled to look at the whole of the evidence; not just these in isolation, when you decide if the prosecution has proved the case. You can use the other transactions that involve others in order to reach your conclusions on whether the prosecution has proved knowledge, participation, dishonesty and all the other things that must be proved. What you cannot do is to convict him only on the other transactions that go outside the 15. You must be sure that the prosecution has proved its case on transactions within the list of 15 named clients or staff members, and because of the large number of transactions involved it is impossible to deal with each and every one. It would be unfair to convict the defendant by relying on any about which he was not specifically asked when he was in the witness box and this is the reason for this direction. If it is not necessary to prove that the defendant took part in all of the transactions relied upon by the prosecution, how many will amount to a system? It is sufficient that he took part in just three transactions involving any of the 15 individuals named. Of course, you must also be sure that in doing so he intended to cause loss to the Revenue, that he did cause loss to the Revenue and was acting dishonestly. But where it is that number of three you must all agree that it is the same three at least. It will not do if each of you thinks it was a different combination of three. In other words, it must be at least three and the same three. That is what we might call the bottom line. There must be a hard core of the same three which are common ground. 52. Mr Cox did not specifically criticise this direction, which was supplemented by a written summary for the assistance of the Jury. His complaint was directed to the prior decision to allow the prosecution to rely on so many transactions. He submitted that even reducing the transactions to 15 individuals and 99 transactions imposed too great a burden on the defence and the jury. 53. We do not accept this criticism. We have looked at the two-page spreadsheet and the appellant’s evidence in relation to the particular transactions; and we can see no real basis for saying that the appellant was unfairly disadvantaged by the number of transactions relied on. The defence knew from the first trial that the prosecution might be confined to reliance on transactions involving a limited number of clients and staff, and the appellant had sufficient time to prepare what he would say in respect of this evidence. 54. The prosecution case was relatively straightforward. In relation to each transaction there was a figure for the amount charged for accountancy fees in a particular accounting period and a higher figure representing the same work in the accounts or tax returns. 55. The figures set out in the schedules were not substantially in issue. 56. The defence case was of general effect. The appellant gave evidence that he had no interest in administrative matters, and was unaware that false invoices were being produced. He explained that he was away from the office much of the time and that, where a standard fee was charged, there would be a subsequent year adjustment to take into account the work actually done. In relation to those accounts which he dealt with personally, he told the Jury that there was nothing wrong or dishonest about the way in which the accountancy fees were dealt with, because there was no intent to cheat the Revenue, and in fact no loss had been caused to the Revenue. His evidence was that any over-claim of accountancy fees was always matched by and in many cases exceeded by what could have been claimed for use of the clients’ use of their home as their office. 57. In fact, the schedules showed that, contrary to the appellant’s assertion, there were no subsequent year adjustments of what was said to be a standard fee. We note that, if the counts had been confined to a single year, this point might have been more difficult for the Jury to identify. 58. The next ground of appeal relates to, first, the Judge’s direction on the appellant’s participation in, and knowledge of, the cheat; and secondly, to his direction on loss. Mr Cox submitted that the directions in both these respects were insufficient and inadequate. 59. As to the first point, the Judge gave written directions to the Jury, setting out the four elements of cheating the Revenue of which it had to be sure, namely: that the appellant, (1) was personally involved in the activity, either taking part himself or actively directing or encouraging others with the intention that the cheat be committed, (2) intended to cause loss to the Revenue, (3) caused loss to the Revenue by his actions, and (4) was acting dishonestly. 60. We should note that the prosecution accepted that the appellant had not personally prepared all the accounts and tax returns submitted to the Revenue. However, it adduced evidence from which it invited the Jury to conclude that, even in those cases where the appellant did not personally prepare accounts and tax returns, he knew of the approach adopted by the business, including the routine inclusion of overstated accountancy fee deductions. 61. In evidence the appellant explained how the routine overstating of accountancy fees had developed since about early 2006 and that he had adopted it himself. This was evidence from which the Jury could conclude that he not only knew of the practice but that he endorsed it. His defence necessarily involved him having knowledge of this practice because he had known that some staff were not adjusting the fees in subsequent years and that he had thought there was no cheat or loss to the Revenue because of the under-claim implicit in the home as office point. 62. The prosecution case went rather further, but it could at least point out that on the appellant’s own case the home as office point was only credible if he knew of the routine overstating of accountancy fees at the time. 63. Part of the Judge’s development of the direction (at p.18H) was in the following terms: Now the prosecution’s case on Count 1 is that the defendant was involved in a system. The prosecution does not have to prove that he was involved in every single act, or even in the majority of them. What the prosecution does have to prove is that he was involved in a sufficient number to amount to a system, and when I say involved or take part I will tell you exactly what that means. 64. The Judge directed the Jury that in those transactions in which he was not personally involved, the prosecution had to show that he knew of what was going on, encouraged and approved of it, and took part in it, intending that the Revenue should be cheated. 65. He returned later to this aspect of the case (at p.86F). You are, of course, concerned … with what the defendant himself knew. So whether the staff knew or didn’t know doesn’t really matter, because what you must be sure about is that the defendant knew about this, he intended to be part of it, to encourage it and to encourage the commission of the offence. 66. In our view, the summing up viewed overall, taken with written directions and his summary of the evidence of the 15 selected clients and staff in which he indicated where the appellant had been directly involved and where his staff had been involved (p.90-128), clearly conveyed to the Jury the importance of the prosecution having to make it sure of the appellant’s personal involvement in the cheat, with the requisite intent and dishonesty. 67. We would add that it was not necessary to go through each tax return for each tax year since this information was set out in the schedules and the defence was effectively the same for each tax year involved. Nor was it necessary to remind the Jury of each specific item in the schedules on which the appellant had been cross-examined. It was a matter for the Jury to decide in the light of what they had heard and the Judge’s summing up whether the prosecution had disproved the defence. Accordingly, we reject this ground of appeal. 68. So far as the second point is concerned, there appear to have been two elements to the defence argument. First, it was said that the fact that clients had subsequently settled enquiries into their tax affairs, and made additional payments of tax properly owed to the Revenue, was not evidence of loss. This matter was left to the Jury in terms which we consider generous to the appellant (at p.24D-25H, 60E-G and 87C-88B); with the Judge making it clear that it was for the prosecution to disprove the appellant’s assertion that there had been no loss. Secondly, there was reliance on the ‘home as office point’. This defence was also left to the Jury (at p.139B-134F), with the Judge directing the Jury that the issue was important because it affected three of the matters of which they had to be sure: whether loss was intended to be caused, whether loss was in fact caused and whether the appellant was acting dishonestly. In our view this direction does not give rise to proper grounds of complaint. 69. The appellant faced the forensic difficulty that, on the prosecution case the home as office point had only been raised some time after his arrest and his first interview under caution. The prosecution was able to make the point that it was a retrospective justification for his dishonesty. Issues relating to counts 2 and 3 70. Count 2 was drafted in terms which give rise to the same grounds of challenge to the conviction on counts 2 and 3, and it is convenient to focus on this count. Statement of Offence Cheating Her Majesty, the Queen and the Public Revenue, contrary to Common Law. Particulars of Offence [The appellant] between 1 January 2006 and 31 December 2011 in connection with Christopher Lunn & Company, Christopher Lunn & Company Ltd and Sno White Ltd cheated Her Majesty the Queen and the Public Revenue of income tax and corporation tax by dishonestly submitting or causing to be submitted tax returns and accounts: (i) for Sno White Ltd which were misleading in that they falsely brought forward losses of £37,764 to reduce taxable profits which were of a different trade; (ii) for Sno White Ltd which were misleading in that they falsely overstated the turnover by showing sales of £50,500 which had not taken place; (iii) for Christopher Lunn & Company which were misleading in that they falsely claimed as costs an amount of £50,500; (iv) for Christopher Lunn & Company Ltd which were misleading in that they falsely claimed as costs an amount of £50,500. 71. Mr Cox submitted first, that the count was duplicitous and uncertain, in that it was unclear whether the prosecution was relying on an accumulation of the enumerated particulars, or whether these were relied on as alternative ways in which it was said that the offence had been committed. His second point was that, when it came to the summing-up the Judge’s directions on law and fact were inadequate. 72. So far as the first point is concerned, the counts charged a fraudulent course of conduct: particulars (i) and (ii) dealing with the tax returns and accounts of Sno White Ltd, and particulars (iii) and (iv) dealing with the tax returns and accounts of the appellant’s firms. They were, as Ms Johnston put it, ‘two sides of the same coin’. On the prosecution case the appellant had (i) impermissibly applied the legitimate losses of Sno White Ltd to relieve future profits of a different trade, and (ii) reported false sales and turnover figures purporting to reflect sales and services to the appellant’s firms. Particulars (iii) and (iv) described the way in which the ‘fictitious’ sales were accounted for in the accounts and tax returns of the appellant’s firms. The figures for the expenses claimed were based on equivalent false figures in the accounts of Sno White Ltd; but the same costs had been claimed in the firm’s accounts for 2007 (iii) and the company’s accounts for 2008 (iv). The prosecution case was that this was all part of the same cheat. 73. The primary defence was that this was all part of a legitimate tax saving scheme which could have been properly argued if the Revenue taken issue with it. 74. In our judgment count 2 was sufficiently clear in its terms. Subject to Mr Cox’s second point, the issue for the Jury was whether they were sure that it was not a legitimate and honest scheme viewed overall. 75. We have already summarised the Judge’s general direction on the offence of Cheating the Revenue. In relation to the specific charge under count 2, Mr Cox submitted that the summing-up was perfunctory and confusing. One of the matters of specific complaint was what is said to be the Judge’s failure to direct the Jury, in relation to Sno White Ltd and the appellant’s firms, as to ‘whether there was continuity of trading’ and ‘whether it was the same business’. 76. We do not accept this criticism. The Jury had a large number of Agreed Facts (running to 34 pages). These included (at §4.1-5) the circumstances in which the trading losses of one trade can legitimately be carried forward and applied to relieve profits of the same trade, but not those of a different trade. Although there were a number of further issues relating (for example) to work which may or may not have been done by or through Sno White Ltd and the double counting issues addressed by particulars (iii) and (iv), the relevant issue so far as this ground is concerned, was whether the nature of Sno White’s trade under its previous ownership (about which the Jury had heard evidence) was the same as that said to have been conducted under the appellant’s stewardship. In our view there was nothing perfunctory or confusing about the Judge’s direction. His task was to explain the issue to the Jury in terms which they would understand, and he did so. He made clear that it was for the prosecution to disprove the appellant’s case that there was continuity of trade: the appellant having accepted in evidence that he knew it was wrong to carry forward and use losses in respect of different trades. 77. Accordingly, we reject the challenge to the conviction on counts 2 and 3. Issues relating to count 4 78. Count 4 was a further charge of Cheating the Revenue which related to a graphic design business named Carte Blanche, later incorporated as Carte Blanche Design Ltd. The business was run by the appellant’s wife, and it was accepted that it provided some services to the appellant’s firms. The prosecution case was that the tax returns and accounts of Carte Blanche Design and the appellant’s firms were misleading in that they exaggerated and thereby falsely stated the costs of providing work in relation to the appellant’s firms’ website. 79. At the close of the prosecution case, the defence made submissions of no case to answer in relation to each of counts 2-4. On this appeal, Mr Cox submitted that the Judge should (at least) have acceded to the submission in relation to count 4. His argument was that the prosecution had accepted that Carte Blanche Design Ltd had done some work for the firms. The defence submitted that, in the absence of expert evidence as to the value of that work, there was no basis on which the Jury could properly conclude that the amount attributed to it in the accounts of the firm (some £129,840) was not a reasonable reflection of the work. If the case were to proceed it would have the effect of reversing the burden of proof and requiring the defence to justify the sums claimed as costs, which was contrary to principle. 80. The prosecution submitted that it was not a suitable issue for expert evidence, since there was insufficient underlying material (contracts, instructions, invoices, evidence of payments) and no indication of what had been done by Carte Blanche Design Ltd and when it had been done. The prosecution relied on inferences that could properly be drawn by the Jury from the lack of this material evidence, the positive evidence of two witnesses who had been involved in designing and building the website, other evidence of the limited services which had been provided and the very close involvement of the appellant in preparing the accounts of Carte Blanche Design Ltd. The prosecution case was that the value was very considerably less than the purported cost (£129,840) of the Carte Blanche Design Ltd services on ‘website design and computer consultancy’. 81. In our view the prosecution submission was well-founded, and the Judge was right to reject the submission of no case to answer. There was plainly evidence upon which a reasonable jury properly directed could conclude, on the basis of the prosecution evidence, that the appellant had cheated the Revenue as charged in count 4. 82. There is a further complaint that the summing-up was perfunctory, inadequate and misleading. We do not agree. 83. The Judge had already provided a written direction on the law and dealt with the facts in relation to count 4 on the second day of the summing-up. He described the factual issues as being the nature and value of the services provided by Carte Blanche and whether the appellant had acted dishonestly. He then reminded the Jury of the evidence in relation to these matters over the following 9 pages of the transcript. 84. Accordingly, we also reject the challenge to the conviction on count 4. 85. It follows that the appellant’s appeal against his conviction on counts 1-4 is dismissed. The appeal against sentence 86. The appellant was aged 70 at the date of sentence and was of previous good character. 87. The Judge found that throughout the relevant period he was the sole principal of the firm, the most highly qualified person within it and the sole driving force behind it. It was a relatively small business with less than 100 staff; and the Judge was satisfied from the evidence in the trial that there was little if anything that escaped his notice. 88. In terms of placing the offences within the Sentencing Council’s Definitive Guideline for Revenue Fraud, the defence acknowledged that the offences came within the high culpability category (category A). In the Judge’s view there were a number of aggravating features which increased the culpability within that category: the appellant had played a leading role, involving others in the operation of the cheat through pressure or influence; he had abused a position of responsibility; the offending had been carried out over a sustained period of time; and he had attempted to conceal evidence and blame others. The mitigating features were his age, the state of his health, and his previous good character. These features, however, were far outweighed by the aggravating features. 89. The Judge identified the real issue between the prosecution and the defence on count 1 as being the extent to which it was right to draw inferences about the extent and duration of the offending and the scale of the loss to the Revenue. He noted that the appellant was responsible for instituting and directing a scheme to overstate accountancy fees and, in doing so, he had boosted his firms’ reputation to his personal benefit. This should be reflected in the sentence. 90. The Judge accepted the prosecution’s contention that counts 2 and 3 fell together into harm category 6 (loss or intended loss of £20,000-£100,000). These two offences represented a blatant misuse of provisions in the tax legislation that enabled trading losses to be carried over if the businesses were the same. Count 4 came within harm category 7 (less than £20,000). 91. The Judge then addressed the argument that has been repeated on behalf of the appellant in relation to count 1 on this appeal, namely: that since the Jury had been directed that it need only be satisfied that the appellant took part in three transactions, the Judge was bound to pass a sentence based on the average loss to the Revenue from three transactions. The defence calculated that the average loss on each transaction was £237.87, and on 3 transactions was £713.62. On this basis the offence fell within harm category 7. The starting point for category 7A was 18 months’ imprisonment (based on a loss of £12,500) and a range of 36 weeks to 3 years. In view of the small amount of the loss, the defence submitted that the sentence should be measured in terms of no more than a few weeks. 92. The Judge noted that the prosecution had argued that the loss ran into millions of pounds on the basis of the figures set out in the initial schedules, but considered that this approach would be unfair to the defendant. His task was to interpret the Jury’s verdict. As a matter of principle, sentences should be passed on the basis that was most favourable to a defendant if the evidence allowed such a possibility, but judges were not obliged to do so if satisfied beyond reasonable doubt about the extent of the offending. 93. On this basis the Judge concluded that the offence charge in count 1 should be sentenced on the basis of harm category 5: loss to the Revenue of £100,000-£500,000, with a starting point based on £300,000. The starting point for category 5A was a term of 5 years custody, with a range of 3 to 6 years. As we have noted above, the Judge sentenced the appellant to a term of 4 years on count 1; and to 12 months on each of counts 2, 3 and 4, concurrent to each other but consecutive to the sentence on count 1. 94. In the grounds of appeal, a number of points were directed to the sentence on count 1, which Mr Cox developed in his oral submissions. 95. First, he submitted that the starting point on count 1 was wrong in principle. The Judge had failed to adopt the appropriate basis for sentence as set in R v Canavan, Kidd & Shaw (above). Due to the way count 1 was framed and the nature of the Judge’s direction to the Jury, the verdict had to be interpreted as a finding that the appellant was guilty of 3 of the many transactions relied on by the prosecution. Beyond this, it was impossible to determine the extent of the offending for the purpose of sentence. The Judge should therefore have sentenced on the basis of 3 transactions, and passed a sentence at the lowest end of the range in category 7A. 96. Secondly, he argued that the Judge had erred in principle by adopting as the basis for his sentence, a schedule entitled ‘Prosecution Response to Approach on Sentencing’, produced on the day before the sentencing hearing, which had been advanced without either proper notice or any rational foundation. As we have already noted, the previous approach of the prosecution had been that the losses ran into millions of pounds. The new document advanced an alternative approach based on a loss of £186,000. 97. Thirdly, Mr Cox submitted that the Judge had misled himself as to the position of the appellant and the suitability of category 5 of the Guidelines. 98. It has been clear at least since Canavan, Kidd & Shaw (above) that a defendant cannot be sentenced for conduct which has not formed, expressly or by necessary implication, the subject of charges laid and proved against him. Where a defendant is convicted on an indictment charging him with offences said to be representative of other similar criminal offences committed by him, it is inconsistent with principle that the court should take into account such other offences so as to increase the sentence if the defendant does not admit the commission of other offences and does not ask the court to take them into consideration. Nor does [Statute] legitimate the practice for unindicted, unadmitted offences. 99. In the case of A [2015] 2 Cr App R (S) p.115 the prosecution had charged a number of ‘multiple incident’ counts of rape and assault by penetration. The jury were directed that they had to be sure that the incidents complained of had happened more than once. In the Court of Appeal, Fulford LJ set out three distinct possible approaches, of which two are relevant here: (1) to include a count or counts in the indictment pursuant CPR r.14.2(2) where the incidents taken together form a course of conduct having regard to time, place or purpose of commission, or (2) to include sufficient counts to enable the judge to impose a sentence which sufficiently represents what happened, but without overloading the indictment. The difficulty in the case of A was that there was no means of interpreting the jury’s verdict. At [47] the Court said this: In our judgment, the central answer to this problem is to be identified in the purpose underpinning multiple counts: it is to enable the prosecution to reflect the defendant’s alleged criminality when the offences are so similar and numerous that it is inappropriate to indict each occasions, or a large number of different occasions in separate charges. This provision allows the prosecution to reflect the offending in these circumstances to a single count rather than a number of specimen counts. 100. For the reasons we have already given, we consider that it was appropriate in the circumstances of this case to charge the offence of cheating as a single count alleging a course of criminal conduct. It was neither a sample count nor a specimen count. The Jury’s verdict was that the appellant was guilty of Cheating the Revenue, not that he had cheated the Revenue in relation to 3 transactions. Once that verdict had been returned, it was for the Judge to sentence on a conventional assessment of the culpability and harm of the offending; and, in doing so, he was not confined to sentence on the basis of 3 transactions. In our view the Judge’s approach to sentencing, including his approach to making assumptions in favour of the defendant, was plainly correct, see for example, Efionayi (1995) 16 Cr App R (S) 380. 101. Although we have considered Mr Cox’s second and third complaint about the sentence on count 1, we are not persuaded that there was any error of approach by the Judge nor any underlying unfairness in the way the prosecution characterised the offence. The prosecution had submitted that the harm was category 3 (loss to the Revenue of £2 to £10 million, with a starting point of £5 million). It subsequently advanced an alternative calculation based on basic rate tax of 20% applied to the amount by which the accountancy fees were overstated. This figure for tax was based solely on the schedules produced during the evidence which had been called or read. If the defence had been placed in real difficulty by the timing of the prosecution alternative case, and we are not persuaded that they were, they should have asked for an adjournment to deal with the matter. 102. Since we reject the appellant’s criticism of the sentence on count 1, it follows that the appeal against sentence must also be dismissed.	{"ConvCourtName":["Crown Court at Southwark"],"ConvictPleaDate":["2015-12-03"],"ConvictOffence":["Cheating the Revenue (count 1)","Cheating the Revenue (count 2)","Cheating the Revenue (count 3)","Cheating the Revenue (count 4)"],"AcquitOffence":["Cheating the Revenue (count 5)","Cheating the Revenue (count 6)"],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":["Remanded into custody"],"RemandCustodyTime":[],"SentCourtName":["Crown Court at Southwark"],"Sentence":["4 years’ imprisonment (count 1)","12 months’ imprisonment (counts 2-4, concurrent to each other, consecutive to count 1)","Total: 5 years’ imprisonment"],"SentServe":["Consecutive","Concurrent"],"WhatAncillary":[""],"OffSex":["All Male"],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Other"],"OffIntoxOffence":["No"],"OffVicRelation":["Stranger"],"VictimType":["Organisation"],"VicNum":[""],"VicSex":["Mixed"],"VicAgeOffence":[],"VicJobOffence":["Other"],"VicHomeOffence":["Fixed Address"],"VicMentalOffence":["Other"],"VicIntoxOffence":["No"],"ProsEvidTypeTrial":["Spreadsheets/schedules of transactions","Witness testimony (clients and staff)","Underlying documents (accounts, tax returns)"],"DefEvidTypeTrial":["Offender denies offence","Alternative explanation for transactions (home as office point)"],"PreSentReport":[],"AggFactSent":["Leading role","Abuse of position of responsibility","Offending over a sustained period","Attempted to conceal evidence and blame others"],"MitFactSent":["Age (70 at sentence)","State of health","Previous good character"],"VicImpactStatement":["No"],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe","Appeal against sentence"],"AppealGround":["Count 1 was duplicitous and lacked particularity","Judge's directions on law and fact were inadequate","Sentence based on wrong assessment of loss/culpability"],"SentGuideWhich":["Sentencing Council’s Definitive Guideline for Revenue Fraud"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":["Judge's rulings on indictment and trial management were correct","Directions to jury were adequate","Sentence was based on correct assessment of harm and culpability","No error of approach by the judge"]}
Case No: 2009/5024/B5 Neutral Citation Number: [2010] EWCA Crim 97 IN THE HIGH COURT OF JUSTICE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM MANCHESTER CROWN COURT HHJ Steiger QC T20080389 Royal Courts of Justice Strand, London, WC2A 2LL Date: 05/02/2010 Before : LORD JUSTICE PITCHFORD MR JUSTICE PENRY-DAVEY and THE RECORDER OF LONDON - - - - - - - - - - - - - - - - - - - - - Between : RCPO Applicant - and - C Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Raymond Wigglesworth QC and Mr P Dockery (instructed by HMRC ) for the Applicant Mr. Alistair Webster QC and Mr P Lawton (instructed by Pannone LLP ) for the Respondent Hearing dates : 26 th January 2010 - - - - - - - - - - - - - - - - - - - - - Judgment LORD JUSTICE PITCHFORD : 1. On 14 th September 2009 at Manchester Crown Court the respondent, whom we shall call “C”, faced an indictment containing six counts. The trial Judge, HHJ Steiger QC, upheld an application made on C’s behalf that the indictment should be stayed as to proceed would be an abuse of the process of the Court. This is an application by the prosecution for leave to appeal the Judge’s ruling under section 58 Criminal Justice Act 2003 and rule 67.4 of the Criminal Procedure Rules. 2. It is first necessary to consider the background to the prosecution. C is a solicitor and equity partner in a firm of solicitors. At the relevant times he was the firm’s nominated anti-money laundering officer. An effect of that position was that each month the firm’s client account reconciliation reports would be submitted to him for approval. C’s professional obligation was to report to the National Criminal Intelligence Service or other appropriate authority any transactions through the firm’s client account which gave rise to suspicion that the use to which the account was being put was money laundering. No such reports were made by C during the period 2001 to 2004. 3. The prosecution case is that a client of the firm, Amer Munir, committed a VAT acquisition tax fraud using a company called Talkland Telecom Limited. In November 2001 the company purported to buy and sell £40m pounds worth of mobile telephones. The VAT payable was some £6.5m. No VAT was ever paid. 4. Munir’s brother-in-law was C’s partner in the firm. C had introduced him. Munir’s sister, Shamaila, was employed as a conveyancing clerk. The prosecution asserts that the firm was used by Munir to launder money fraudulently obtained from the VAT fraud through the firm’s client account for the purpose both of acquiring property and of transferring money between companies in which Munir had an interest. The indictment was framed as follows: Count 1 is an allegation that, contrary to section 93A(1)(b) CJA 1988, between September 2001 and 19 March 2004 C entered into or was concerned in an arrangement by which money fraudulently obtained should be used by Munir to acquire and develop a housing and development site at Botham Hall Road, Huddlesfield. Count 2 is a similar allegation in respect of a development site at Rappax Road, Hale. Count 3 is an allegation that, contrary to section 328 POCA 2002 (the successor to section 39A of the 1988 Act), between 24 February 2003 and 19 March 2004 C enabled Munir to retain control of or to use criminal property by making representations on his behalf to a firm of solicitors, Jens Hill and Company, acting for Vista Assistance SL, a Spanish registered company. Count 4 is an allegation that, contrary to section 328 , C enabled Munir to maintain control of or to use criminal property by allowing the firm’s client account to be used to move money to and from accounts held by Danish Electronic and Buss Merton LLP. Count 5 is a similar allegation that C between 15 December 2003 and 20 December 2003, enabled Munir to maintain or control the use of criminal property by allowing £110,000 to be transferred from the firm’s client account to the credit of Saeed Ahmed at UBS Bank, Switzerland. Count 6 is a similar allegation that C, between 15 December 2003 and 20 December 2003 enabled Munir to maintain or to control the use of criminal property by allowing £47, 000 to be transferred from the firm’s client account to the credit of Mohammed Munir, Amer Munir’s father. 5. In any trial of C upon these counts it would be necessary for the prosecution to prove that the sums passing through the firm’s client account were in fact Munir’s proceeds of crime; secondly, that C was concerned in the arrangements or transactions alleged; thirdly, that at the time of the arrangements or transactions in which he was concerned, C knew or suspected that their purpose was to acquire, retain, use or control criminal property by or on behalf of Munir. 6. In March 2004 Amer Munir was arrested and interviewed. He made no comment to the allegations put to him. He and his wife were tried on a 19 count indictment by HHJ Gee QC and a jury between 23 November 2006 and 21 December 2006. Mr Munir was convicted on six counts and acquitted on five. Formal verdicts of not guilty were entered on three counts at the end of the prosecution case. The jury disagreed on three counts. Mr Munir’s wife was acquitted on all counts in which she was concerned. The effect of these verdicts upon the indictment in C’s case is as follows: i) The Munir jury disagreed upon the allegations underlying counts 1 and 2 faced by C. ii) The Munir jury convicted Amer Munir in respect of the allegations now reflected against C in counts 4 and 5. iii) The Munir jury found Amer Munir not guilty of the criminal conduct in respect of which C is now charged in count 6. It follows that the prosecution would need to prove Munir’s criminal conduct and Munir’s receipt of criminal proceeds in respect of all counts except that, in the case of counts 4 and 5, the prosecution would be able to rely upon his convictions under section 74 Police and Criminal Evidence Act 1984 . 7. C was arrested and interviewed on 29 th April 2004. He gave full answers to the questions put based upon documentary evidence obtained in the course of the enquiry. The second interview took place on 18 January 2005 following which C was released without charge. No further step was taken in the prosecution of C until January 2008 when he was summonsed for alleged offences of money laundering. Following preliminary proceedings, C’s trial was listed for 20 October 2008. On 10 September 2008 the prosecution served 79 pages of witness statements and 555 pages of exhibits. A week later 30 further pages of witness statements were served together with 3400 pages of exhibits. Although the prosecution subsequently argued that only 40 pages of the additional material were relevant, it was apparent to Mr Webster QC that the defence expert would need to consider all of the documents. It had been noted that contemporaneous documents completed by managers of banks who had dealt with Munir referred to him in terms which recommended him as a client. That material was relevant to the issue whether C himself had been misled by Munir or was complicit in his scheme. An application to vacate the trial date, made on 2 October 2008, was granted and the trial re-listed for 23 March 2009. 8. On 23 rd March 2009 the parties appeared before HHJ Steiger QC for trial. A few days before trial the prosecution had served on the defence a request to make formal admissions to the effect that Munir had been convicted at his trial. Surprisingly, the defence team was unaware that Munir had also been acquitted of several charges and the jury had failed to agree on others. The defence argued that they were taken by surprise and it was unfair to C to proceed. The Judge ordered severance of the indictment because the defence were placed at a disadvantage, and that the trial should continue upon count 3 alone. He ruled that notwithstanding severance the prosecution should be entitled to rely upon the evidence which they would have produced to prove the other counts in the original indictment. On the following day the procedural situation was reviewed by the Judge. The prosecution had disclosed transcripts of evidence from the Munir trial which alerted the defence to the possibility that they could challenge the assertion that C’s client account had been used to launder the proceeds of crime. The defence made an application for an adjournment which was successful. The trial was fixed for 14 September 2009. On that day, Mr Webster QC made a successful application to stay the indictment. 9. Before HHJ Steiger QC the defence application centred upon the period of delay between C’s interviews, concluded in January 2005, and the date of trial, 14 September 2009. In short, the Judge concluded that, contrary to the submissions of Mr Wigglesworth QC on behalf of the prosecution, this was not a trial whose outcome would depend upon the jury’s analysis of documents. The principal issues were (1) C’s knowledge of the purpose behind admitted transactions and (2) whether C knew or suspected that he and his firm were assisting a money laundering exercise. 10. The first issue for the trial Judge was the date from which time ran for the purposes of the judgement of delay. He was referred to the decision of the House of Lords in Attorney General’s Reference No. 2 of 2001 (2003) UKHL 68 . It was contended on behalf of the prosecution that time did not begin to run until the respondent was notified of the intention to prosecute by service of the summonses in January 2008. The respondent submitted that the start date should be taken to be April 2004 or January 2005. The prosecution had made a deliberate decision not to join C in the prosecution of Munir. That decision was confirmed in writing by Mr Wigglesworth QC on 6 October 2006. The Judge concluded at paragraph 16(c) of the note of his ruling that: “Although there was disagreement at the Bar about when precisely time in the present case should run for the purpose of Article 6, I consider that the relevant moment is when a clear decision has been made to prosecute a defendant who is available to be charged. I therefore see June 2006 as the latest moment to “start the clock” rather than the interview (as Mr Webster suggests) or the summons (according to Mr Wigglesworth)”. 11. Lord Bingham said at paragraph 27 of his opinion, in Attorney General’s Reference 2 of 2001 : “27. As a general rule the relevant period will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him. This formulation gives effect to the Strasbourg jurisprudence but may (it is hoped) prove easier to apply in this Country. In applying it, regard must be had to the purposes of the reasonable time requirement: to ensure that criminal proceedings, once initiated, are prosecuted without undue delay; and to preserve defendants from the trauma of awaiting trial for an inordinate period. The Court of Appeal correctly held…. that the period would ordinarily begin when a defendant is formally charged or served with a summons but it wisely forbore…. to lay down any inflexible rules.” There is, accordingly, no hard and fast rule as to the assessment of the relevant period for the purposes of Article 6. In Burns v HM Advocate, Advocate/General for Scotland Intervening Times Law Reports 26 December 2008, the Privy Council advised that the assessment of the relevant period should be made in such a way as to give effect to article 6.1 if to do otherwise would deprive the accused of its effect. There was, it seems to us, a respectable argument available to the respondent to the effect that where the prosecution deliberately withholds from a suspect the information that they intend to proceed but wish to await the outcome of other proceedings, it would be artificial to judge the period of delay only from the moment when the summons is eventually served and that, in those circumstances, time begins to run from the date of interview. Mr Wigglesworth QC, on behalf of the applicant, was not disposed to challenge the Judge’s decision upon the issue in argument before us since, as he recognised, the real issue was the effect of admitted delay upon the prospects for a fair trial. We do not propose to interfere with the Judge’s assessment that he should examine the period since June 2006. 12. There was little dispute before the Judge and none before this Court that the prosecution had been guilty of undue delay if only because, while Mr Wigglesworth QC had advised that summonses should be issued immediately following the trial of Munir, no summons was issued until January 2008. It was not disputed that the trial Judge was entitled to examine the whole of the period since June 2006 for the purpose of judging whether delay had been causative of relevant prejudice to the accused. 13. Mr Wigglesworth QC repeated to us the submissions he had made to the trial Judge to the effect that this was in essence a prosecution upon the documents. In response, Mr Webster emphasised the significance of the oral evidence of witnesses. The oral witnesses fell into four categories. The first comprised the experts. An attempt was made by the expert for the Crown to reconstruct Law Society guidance to practising solicitors as to their responsibilities for reporting suspected money laundering activities. It was no longer possible to be precise since changes had been made on dates which the experts were no longer able to ascertain. Secondly, members and employees of C’s firm would give evidence about the transactions documented. Their recollection of the purpose behind those transactions, as they were understood at the time, was material to C’s defence. In some cases, recollection of the fact and degree of C’s participation was at issue. The third category of witnesses comprised the other professional men, in particular a solicitor in a distant firm who also enabled transactions for which Munir was responsible. Since those transactions were linked to those in respect of which C was charged, his recollection both of the nature of the transactions and of his impression of Munir and his substance would be important. There were, in addition, several bank employees in respect of whom contemporaneous records provided the defence with material for cross examination should they give evidence for the prosecution or be tendered. Lastly, the defendant’s own recollection was in issue. While C had been interviewed at length about the transactions in which he was implicated, he was, or said he was, in several respects, unsure of the detail. 14. In his conclusions the Judge summarised the principles of law to be applied as follows; “(a) the persuasive burden in an application to stay proceedings on the grounds of delay rests with the defence and not the prosecution; (b) The trial should only be stayed if a fair trial is impossible and no other less draconian techniques are available to moderate the unfairness such as severance, exclusion of evidence or directions in summing up; (c) [start date for delay] ...; (d) Cases dependant upon documents rather than recollection are less prone to being stayed.” No criticism is made of the Judge’s identification of the principles which guided his analysis. The Judge identified knowledge or suspicion that Munir had been engaged in some form of criminal conduct as one of the principal issues for the jury. He continued: “18. If it is a correct analysis to see the case against [C] as depending in the main on his state of mind the case cannot in my judgement depend wholly on documents since no single document referred to deals conclusively with that topic. Of course, inferences may be drawn from documents if the circumstances merit but this is not a case to my mind where the inference of guilty knowledge is inevitable. Even the apparently incriminating attendance notes following the Jens Hill letter are explicable by Mans Uddin seeking to avoid tax in Spain given the evidence of Mr Main. A further factor which undermines the strength of any document-based inference against [C] is that Munir’s sister worked for Megson Ponsonby from home and her husband was a member of the firm. There were thus at least two other actors within the firm with connections to Munir quite apart from the defendant or any other employee such as Ian Hannam who dealt with conveyancing and with Golbourn who dealt with accounts. 19. I therefore accept the submission of Mr Webster that despite the documents the case really depends on the recollection of individual witnesses about events up to eight years ago and in dealing with the defendant’s knowledge or suspicion such a delay undoubtedly places the defendant at a disadvantage… 23. I recognise that to stay proceedings is an exceptional course but I am persuaded by Mr Webster that a fair trial is not now possible and nothing short of a stay can achieve fairness to the defendant. For these reasons the application succeeds.” 15. We have been troubled by the absence in the Judge’s ruling of an explanation for his conclusion that the process of trial would not itself have rendered C’s trial fair. There were a number of procedural and evidential steps which the trial Judge could have taken to minimise any disadvantage under which the respondent may have laboured. First, unless the respondent was able to discharge the burden of demonstrating obvious prejudice, the Judge was entitled to reject the application and, if the circumstances warranted, revisit his decision either at the close of the prosecutions case or at the close of all the evidence. As Hooper LJ observed in Burke (2005) EWCA Crim 29 at paragraph 32: “Prior to the start of the case it will often be difficult, if not impossible, to determine whether a defendant can have a fair trial because of the delay coupled with the destruction of documents and the unavailability of witnesses. Issues which might seem very important before the trial may become unimportant or of less importance as a result of developments during the trial, including the evidence of the complaint and other witnesses including the defendant should he choose to give evidence.” The facts of the present case were very different but the same observation applies. Second, the Judge had wide powers to seek formal admissions from the parties and to admit, in the interests of justice hearsay evidence. Thirdly, the Judge was required to assess the impact of delay upon the issues in the trial upon which he was directing the jury. In a case in which the jury’s judgement of an accused’s state of mind may depend upon an imperfect recollection of events and impressions, he would be required to remind the jury that the burden of establishing guilt rested with the prosecution and that, if they considered it was reasonably possible that the defendant had been placed at a disadvantage upon the issue by reason of the lapse of time and imperfect memory, they should apply the burden and standard of proof to the issue in the defendant’s favour. 16. We have considered whether the absence of such an analysis from the Judge’s ruling should cause us to interfere. We are conscious that the question for us is not whether any member of the Court would have reached the same decision as the trial Judge but whether his decision could not reasonably have been reached. As Sir Igor Judge, then President of the Queens Bench Division, put it in Regina v B (2008) EWCA Crim 1144 : “No trial Judge should exercise his discretion in a way in which he personally believes may be unreasonable. That is not to say that he will necessarily find every such decision easy. But the mere fact that the Judge could reasonably have reached the opposite conclusion to the one he reached, and that he acknowledges that there were valid arguments that might have caused him to do so, does not begin to provide a basis for a successful appeal….” HHJ Steiger QC provided, in his ruling, a comprehensive analysis of the prosecution and its background, summarised the position of the parties, accurately stated the principles upon which he should act and explained the basis for his decision. We do not conclude that the absence of the “process of trial” analysis deprives the Judge’s ruling of its essential reasoning. This experienced trial Judge was well aware both of the issue to be considered and the matters relevant to it. We are unwilling to interfere with his conclusion that a fair trial was not possible on the ground that undue delay had created incurable prejudice in an examination of the respondent’s case. 17. While the Judge was critical of the prosecution’s election to proceed against the accused sequentially, we have read Mr Wigglesworth’s opinion dated 6 th October 2006, and we are quite satisfied that his advice was, in the context of the time, sustainable. We do not consider that it could be argued that the prosecution had manipulated the process for its own advantage and we note that no such finding was made by the Judge. 18. We refuse the applicant leave to appeal and verdicts of acquittal will be entered on each count.	{"ConvCourtName":["Manchester Crown Court"],"ConvictPleaDate":[""],"ConvictOffence":["Contrary to section 93A(1)(b) CJA 1988: arrangement for use of fraudulently obtained money (Botham Hall Road, Huddersfield)","Contrary to section 93A(1)(b) CJA 1988: arrangement for use of fraudulently obtained money (Rappax Road, Hale)","Contrary to section 328 POCA 2002: enabling retention or use of criminal property (Jens Hill and Company/Vista Assistance SL)","Contrary to section 328 POCA 2002: enabling retention or use of criminal property (Danish Electronic and Buss Merton LLP)","Contrary to section 328 POCA 2002: enabling retention or use of criminal property (£110,000 to Saeed Ahmed at UBS Bank, Switzerland)","Contrary to section 328 POCA 2002: enabling retention or use of criminal property (£47,000 to Mohammed Munir)"],"AcquitOffence":[""],"ConfessPleadGuilty":[],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":[""],"Sentence":[""],"SentServe":[],"WhatAncillary":[""],"OffSex":[],"OffAgeOffence":[],"OffJobOffence":["Employed"],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":[],"VictimType":["Organisation"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Documentary evidence","Oral witness evidence","Expert evidence","Transcripts from previous trial"],"DefEvidTypeTrial":["Defendant's interview answers","Cross-examination of bank employees","Challenge to assertion of money laundering"],"PreSentReport":[],"AggFactSent":[""],"MitFactSent":[""],"VicImpactStatement":[],"Appellant":["Attorney General"],"CoDefAccNum":[],"AppealAgainst":["Stay of proceedings (abuse of process)"],"AppealGround":["Trial judge erred in staying proceedings for abuse of process due to delay"],"SentGuideWhich":["section 58 Criminal Justice Act 2003","rule 67.4 of the Criminal Procedure Rules"],"AppealOutcome":["Dismissed"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":[""],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":["Trial judge's decision to stay proceedings was reasonable; fair trial not possible due to undue delay and incurable prejudice"]}
No. 2007/04068/B1 Neutral Citation Number: [2008] EWCA Crim 541 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2A 2LL Friday 29 February 2008 B e f o r e: LORD JUSTICE DYSON MR JUSTICE MADDISON and SIR RICHARD CURTIS - - - - - - - - - - - - - - - R E G I N A - v - AMAR KHATAB - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr J Dunstan appeared on behalf of the Appellant - - - - - - - - - - - - - - - Judgment Friday 29 February 2008 LORD JUSTICE DYSON: 1. On 5 July 2007, at Birmingham Crown Court, the appellant was convicted on count 2 of the indictment which charged him with the offence of assisting an offender, contrary to section 4(1) of the Criminal Law Act 1967 . The particulars of the offence were that Mehtab Laqab having committed a relevant offence, namely the murder of Abed Hussain, the appellant, knowing or believing that Mehtab Laqab had committed the said offence or some other relevant offence, without lawful authority or reasonable excuse disposed of a stone pestle, with intent to impede the apprehension or prosecution of Mehtab Laqab. The appellant was sentenced on 6 July to four years' imprisonment. He appeals against sentence by leave of the single judge. 2. The co-accused Mehtab Laqab and Ateek Laqab were convicted on count 1 which charged them with murder. 3. The facts are these. The appellant was a drug dealer. On the evening of 19 December 2006 he spent some time with the deceased, Hussain, who was the father of three children, and two others, Farni and Arsen. The men travelled back to the appellant's home address. On the way Hussain quarrelled with the appellant. He claimed that the appellant had told Hussain's wife that he was back on drink and drugs and he demanded the payment of £10,000 with threats of violence. During the journey Hussain bullied the appellant and slapped him. The appellant arrived home and went in doors. He was in tears. Hussain grabbed hold of Farni and made him go close to the house before all three men left and walked away up the road. The appellant told his two brothers (the co-accused) what had happened. They decided to do something about it. Their mother tried to persuade them to stay in the house, but they ignored her. Ateek armed himself with a screwdriver and Mehtab with a stone pestle about six inches long. All three brothers left the house. By this time Hussain was about 80 yards away. Ateek and Mehtab caught up with him and attacked him, using their weapons to strike him on the head. Hussain fell to the ground and was struck at least one further blow before Arsen and Farni intervened to try to stop the violence. 4. Arsen contacted the emergency service. The police and an ambulance arrived just before 1am. They found Hussain lying on his back with an obvious serious injury to his head. He was still alive, but died on the way to hospital from his head injuries. 5. After the attack the appellant took the pestle off Mehtab and drove away. He disposed of it in a bin liner. About two days later he went to the police. When interviewed he told them that he was a drug dealer and that he had disposed of the pestle after the attack because it had blood on it. 6. The appellant is 23 years of age. He has a number of previous convictions, mainly for road traffic offences, but he also has a conviction on 2 May 2006 for perverting the course of justice for which he was sentenced to three months' imprisonment, consecutive to a sentence of two months' imprisonment for possession of a bladed article, and another conviction for obstructing the police for which he was sentenced to a 12 month community order on 5 April 2006. 7. There were four character references before the sentencing judge. 8. In passing sentence the judge said that in one sense the appellant was a lucky man because the whole tragedy was his fault. He had chosen to live the flash life of a drug dealer but when the going got tough, he ran crying to his younger brothers for help. He had got them into terrible trouble and had set in train events which led to the death of a close friend. He was brave with words but was not violent, unless women were concerned. He had taken care to stay out of the fight but had assisted one of his brothers by disposing of the weapon he had used. The jury's verdict meant that when he disposed of the stone pestle, he believed Hussain was doomed to die and that his brother was responsible for the death. 9. Counsel had argued before the sentencing judge, and has made the same point to this court, that the appellant should receive credit against what would have been the normal sentence after a trial because he had never disputed that he had taken and disposed of the weapon. Counsel had argued that it was a prerequisite to the appellant's guilt that his brother should be found guilty and that he could not have pleaded guilty until the jury found his brother guilty. The judge said, however, that the appellant had maintained that he had no reason to believe Hussain had been left in the condition in which he was, and the jury had rejected that argument. He went on: "It is difficult to apply credit on the basis I am invited to, as if this were a plea of guilty, but I do take into account the fact that you showed elements of responsibility in your candour in interview and the conduct of your defence in this trial." The appellant's previous conviction for perverting the course of justice showed that he had a fine disregard for the rule of law. 10. It is submitted by Mr Dunstan that the sentence of four years' imprisonment was too long. Two particular points are made. First, it is submitted that the judge should have given the appellant full credit as if he had pleaded guilty to the offence. Secondly, and in any event, having regard to other authorities, in particular R v Lee Manning [2004] 2 Cr App R(S) 74 and Attorney General's Reference No 19 of 1993 ( R v Connor Edward Downey ) (1994) 15 Cr App R(S) 760, the sentence of four years was too long. 11. In developing the first of these points counsel submits that the appellant always accepted that he believed that his brother Mehtab had committed a relevant offence and that he was therefore guilty of the offence charged, provided that the prosecution could prove Mehtab's guilt of the primary offence. The appellant's trial was conducted on that basis; there was virtually no cross-examination of any witness. At the close of the evidence, the prosecution decided that the case should be left to the jury on the basis that the appellant knew or believed that Mehtab had committed the offence of murder or manslaughter rather than any other relevant offence such as assault occasioning actual bodily harm at the time when he disposed of the pestle. During submissions in the absence of the jury counsel made it clear that this would afford the appellant a potential defence which he had not previously anticipated having. This arose from the account given by the appellant in his police interviews which was relied on by the prosecution as truthful. In those interviews he had said that he only found out the next day that Hussain had died and that when he left the scene of the murder he had only thought that there had been a fight. Counsel submits that it was entirely reasonable for the appellant to put the Crown to proof that Mehtab had committed the offence of murder. Proof of that was a prerequisite to the appellant's guilt on the basis on which the Crown were now putting their case. Taking that into account and the fact that the appellant had gone to the police within two days of committing the offence and told them exactly what he had done, it is submitted that the judge should have given a discount equivalent to that which would have been given if he had pleaded guilty at the outset. 12. As regards the two authorities to which we have referred, we note that in Attorney General's Reference No 19 of 1993 the offender had pleaded guilty to manslaughter and to perverting the course of public justice. When the deceased woman had rejected the offender's sexual advances, he had put his hand over her mouth to stop her from shouting and killed her. He then dismembered her body and put the parts into plastic bags which he disposed of in various places around the City. The offender did not disclose what he had done to the police for about five years. Following the Attorney General's reference, this court increased the sentence, stating that at first instance it would have been inappropriate to pass a sentence of less than two years, and three would not have been excessive for the offence of perverting the course of public justice. 13. Mr Dunstan submits that that was a more serious offence than the present case. Taking account of both matters, it is submitted that the judge erred in passing a sentence as long as one of four years' imprisonment. 14. We are persuaded that there is force in those submissions. We are not persuaded that the judge was wrong not to treat the appellant as if he had indicated a plea of guilty at the earliest opportunity, but clearly having regard to the way in which the appellant conducted his defence, he was entitled to a significant discount from the sentence which would have been appropriate had he maintained a steadfast plea of not guilty all along. We also think that there is force in the submission that the present case is somewhat less serious than Attorney General's Reference No 19 of 1993 . Nevertheless, although the appellant was not charged with the offence of murder as if party to a joint enterprise, the fact is that he assisted an offender who was convicted of the charge of murder. 15. Taking account of all these circumstances it is our view that the correct sentence in this case was one of three years' imprisonment. Accordingly, we quash the sentence passed and substitute one of three years' imprisonment. To that extent the appeal is allowed.	{"ConvCourtName":["Birmingham Crown Court"],"ConvictPleaDate":["2007-07-05"],"ConvictOffence":["Assisting an offender contrary to section 4(1) of the Criminal Law Act 1967"],"AcquitOffence":[""],"ConfessPleadGuilty":["No"],"PleaPoint":[""],"RemandDecision":[],"RemandCustodyTime":[],"SentCourtName":["Birmingham Crown Court"],"Sentence":["4 years' imprisonment"],"SentServe":[],"WhatAncillary":[""],"OffSex":[],"OffAgeOffence":[23],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":["Individual person"],"VicNum":[""],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[""],"DefEvidTypeTrial":[""],"PreSentReport":[],"AggFactSent":["Previous conviction for perverting the course of justice","Offence involved assisting an offender convicted of murder"],"MitFactSent":["Showed candour in police interview","Conducted defence with elements of responsibility","Went to police within two days and told them what he had done","Virtually no cross-examination of any witness"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[2],"AppealAgainst":["Sentence is unduly excessive"],"AppealGround":["Judge should have given full credit as if pleaded guilty","Sentence too long compared to authorities"],"SentGuideWhich":["Attorney General's Reference No 19 of 1993 (R v Connor Edward Downey) (1994) 15 Cr App R(S) 760","R v Lee Manning [2004] 2 Cr App R(S) 74"],"AppealOutcome":["Allowed and sentence reduced to three years' imprisonment"],"ReasonQuashConv":[""],"ReasonSentExcessNotLenient":["Judge did not give sufficient discount for the way the appellant conducted his defence and admissions","Case less serious than Attorney General's Reference No 19 of 1993"],"ReasonSentLenientNotExcess":[""],"ReasonDismiss":[""]}
Neutral Citation Number: [2017] EWCA Crim 482 Case No: 201604816 C5 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Date: Tuesday, 11th April 2017 B e f o r e : LORD JUSTICE TREACY MR JUSTICE GREEN MR JUSTICE PICKEN - - - - - - - - - - - - - - - - - - - - - R E G I N A v SAMAH NAZ - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 8th Floor, 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr T Qureshi appeared on behalf of the Appellant Ms R Kodikara appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. LORD JUSTICE TREACY : This is an application for leave to appeal against conviction referred to the court by the Registrar. We give leave. 2. The Appellant was convicted after a retrial on 22 September 2016 at Snaresbrook Crown Court of racially aggravated intentional harassment, alarm or distress. She was fined £1,500, ordered to pay £3,500 prosecution costs and subjected to a £150 surcharge order. 3. The grounds of appeal in brief are that the conviction was unsafe since the trial was conducted unfairly. Criticism is made of the judge's interventions during the trial. On a number of occasions in the presence of the jury he is said to have intervened inappropriately and in a manner akin to a second prosecutor. Moreover, there are complaints about comments made in the absence of the jury. 4. The Appellant was a woman of previous good character who had had a successful career in retail. She was to be a candidate on the behalf of UKIP in the 2015 general election. Since she was of Pakistani and Mongolian origin, her candidature had caused some controversy within the Pakistani community. 5. On 22 March 2015 she drove to a Tesco superstore in Walthamstow, the area in which she was to be a candidate. Shortly after entering the car park, she became embroiled in a heated confrontation with a man of North African appearance. 6. The complainant, Mohammed Wafta, was an employee of Tesco and of Syrian origin. He was engaged in moving trolleys in the car park and went to intervene in the dispute between the Appellant and the other man. He interposed himself between them. The Appellant was claiming that she had been punched in the face. The man was accusing her of swearing at him. 7. The man involved in the dispute drove off in his car, whereupon Mr Wafta said that he was subjected to repeated verbal abuse by the Appellant, including numerous references to him as "a fucking foreigner". He had tried to walk back into the store, but had been followed by the Appellant who repeatedly abused him so that he became very upset. At one point, he had said: "Well, madam, you are too pretty to say these words. Maybe you deserved a punch because you have a very rude mouth." 8. Mr Wafta's account was supported by a Mr Farooq, who was a Tesco customer, and also by the evidence of Mr Sanders, the store manager, who witnessed the later stages of the incident after the Appellant had followed Mr Wafta back into the store. He said that the Appellant kept repeating abuse, including adding that Mr Wafta was "a fucking foreigner". 9. When the Appellant was subsequently told that she would charged with a public order offence, she reacted angrily and claimed that there was a Muslim plot against her involving both Islamic State and the local Asian community. She said that the CPS had chosen to believe "a bunch of terrorists". 10. The Appellant gave evidence. She said that she had been assaulted by the male in the car park and that although Mr Wafta come in between them, there was nothing to suggest that he had done so with the intention of helping her. She believed that he knew the male with whom she had the dispute and said that Mr Wafta had said to her, "You fucking deserved that". She believed that Mr Wafta was in league with the male in the car park. Those matters had been denied by Mr Wafta. 11. The Appellant admitted that she was upset in the car park and had used abusive language, but denied an intention to cause alarm or distress and denied calling Mr Wafta "a fucking foreigner" at any stage. She suggested that the prosecution witnessed had colluded to give false evidence against her. 12. There is no complaint about the judge's summary of the legal issues in the summing-up. They were (1) whether the Appellant had the necessary intent, (2) whether Mr Wafta was caused alarm or distress, and (3) whether the Appellant had derogatorily referred to him as "a fucking foreigner". 13. Mr Qureshi on behalf of the Appellant has raised a series of matters in support of the grounds of appeal. The first complaint relates to the cross-examination of Mr Wafta. Defence counsel was putting that he was not an innocent bystander and put the question: "You would have this jury believe you intervened like a knight in shining armour." The judge interrupted, saying: "I don't think this witness has claimed he was a knight in shining armour, so please do not diminish what happened and his conduct on the day... He went there, as any right thinking person is concerned, in order to prevent a situation from becoming very worrying indeed. It's not a question of knight in shining armour." 14. Objection is taken to the judge's comments on the basis that whilst the judge may have been justified in criticising the reference to a knight in shining armour, he went further and indicated a favourable view of Mr Wafta's role in the incident when that was a matter in issue before the jury. 15. A little later, after counsel had put to Mr Wafta that he was the first person to use abusive language, the judge intervened again. The relevant passage is as follows: "MR QURESHI: And now I am putting to him that he didn't say it as a result of my lay client making any derogatory remarks, he did it himself by his own initiative. JUDGE DEL FABBRO: Why? MR QURESHI: Because -- JUDGE DEL FABBRO: Why would he say that? MR QURESHI: Sorry, your Honour? JUDGE DEL FABBRO: He works at Tesco's, pushing trolleys around, why would he use such language to a woman who he doesn't know. MR QURESHI: Your Honour, may I raise a matter of law, please. JUDGE DEL FABBRO: No, just answer that question and then we'll get on with the cross-examination. MR QURESHI: The reason he used that language is because he was protecting his friend. JUDGE DEL FABBRO: His friend, which he has denied. A. He is not my friend. JUDGE DEL FABBRO: He has denied it repeatedly. MR QURESHI: Your Honour, yes, and your Honour has asked me what the defence case is and whatever your Honour's view is about the position, the jury will obviously determine the matter. JUDGE DEL FABBRO: Let's move on. Let's move on. It was put to you that this man is a friend, you were trying to protect him in some way. A. He is not my friend. JUDGE DEL FABBRO: He is not your friend, you don't know him. A. I don't know him, Sir. JUDGE DEL FABBRO: Right, let's move on then." 16. This passage is criticised on the basis that the judge wrongly intervened in a way suggesting that he had formed a sceptical or unfavourable view of the case being advanced for the Appellant. These were not of a type and nature tending to clarify the evidence. They were inappropriate challenges to the defence case. 17. The next matter concerns comments made in the absence of the jury. Shortly after the matters referred to, defence counsel raised with the judge that his comments were giving the impression that Mr Wafta was a witness who should not be believed and that the judge was entering into the arena. There then followed discussion between judge and counsel in which the judge said he had intervened in order that the witness' voice should not be lost amongst a series of allegations which had been coming thick and fast. 18. There were then exchanges about the nature of the defence being advanced. The following passage is relevant: "MR QURESHI: May I just please use this opportunity just to crystallise the defence case. I want to do that, your Honour, because I don't want your Honour to feel that I am chasing irrelevant points. The defence case is this, your Honour, the suggestion that she was using any racial element is a complete pack of lies and it's a lie, it's a conspiracy, that has been supported by this witness and all the other prosecution witnesses, non-police witnesses, who are coming to court to give evidence. And so the reason why I am making these allegations and asking these questions is all designed to support the defence case that there is a hidden agenda here. JUDGE DEL FABBRO: What is that? MR QURESHI: The hidden agenda is, first of all, Mr Wafta helping his friend and avoiding the accusation that he was helping his friend get away from an assault; and secondly, to protect his job. And the other witnesses supporting Mr Wafta -- JUDGE DEL FABBRO: So are you going to allege there was collusion between these witnesses, that in the time that it took for police to arrive, they put their heads together and colluded. MR QURESHI: Well, I hope to show this jury, it didn't all unravel when the police arrived, it unravelled over a period of time. JUDGE DEL FABBRO: I hear what you are saying, Mr Qureshi, but quite frankly it's far-fetched. MR QURESHI: It may well be, but those are my -- JUDGE DEL FABBRO: The proper defence here is what I suggested earlier and perhaps people ought to be thinking about that. The proper defence here is that, I was so shocked and I was so upset at what had happened to me that I may have used foul language, I probably did use foul language against this poor, hapless man, but the one thing I didn't say was that he was a "fucking foreigner". That is what the defence should be. All the rest of it is nonsense. MR QURESHI: But the witnesses are maintaining she did use that language. JUDGE DEL FABBRO: Yes, so you put it to him and then in your speech for the jury, you say, can you be sure that she used foreigner. MR QURESHI: Your Honour, I understand that. JUDGE DEL FABBRO: Instead we are going to spend time looking at collusions, conspiracies... MR QURESHI: Well that is unfortunately the defence case, your Honour. JUDGE DEL FABBRO: Well, it's bunkum. I'm not going to decide this case obviously, the jury do. Anyway let's move on. Let's move on and do the best we can to keep going." 19. The references to "far-fetched" and "bunkum" together with the judge's observation as to what "the proper defence" was are criticised. It is said that by the end of the first day of the trial the judge had clearly given the impression both in the presence and the absence of the jury that he did not believe the Appellant's version of events and that the defence being advanced was a waste of time. 20. In addition, it is said that the judge had in the absence of the jury made repeated critical references to the Appellant's decision to elect Crown Court trial. 21. The next area of criticism relates to what occurred during the Appellant's evidence-in-chief. Complaint is initially made about an intervention by the judge after the Appellant had been giving evidence for about 7 minutes or so when the judge intervened to curtail questions about the Appellant's good character and background. Since we consider that the judge was doing no more than seeking to prevent the evidence becoming unnecessarily detailed on matters which were not in dispute, it is not necessary for us to go into further detail. 22. However, there came a point after the Appellant had given evidence that she was angry with Mr Wafta, whom she perceived as not having assisted her in the confrontation with the male, when the judge intervened again: "JUDGE DEL FABBRO: Can we just pause here. I just need to understand, why were you so angry at him? A. Because I felt like at the time he knew the person, so I just felt he was assisting him back into the car; that was what was going through my head. JUDGE DEL FABBRO: Yes, but you must have appreciated that he had taken somebody off you. A. No, that's how he has made it out, but he -- JUDGE DEL FABBRO: Just pause here, Ms Naz, you have just told us that a complete stranger. A. He didn't -- JUDGE DEL FABBRO: Ms Naz, I'm just trying to recap what you've told us, just to remind you. You just told us that a complete stranger, a male, has grabbed you by the neck and pushed you up against a car and this Mr Wafta has come and pulled him off you. That's what you told us. Is that right? Is that what happened? A. But after he pulled him off me, he then -- JUDGE DEL FABBRO: Never mind what happened afterwards, but he pulled him off you, didn't he, on your account. A. No, but he wasn't helping me, that's why I felt at the scene, he was not-- JUDGE DEL FABBRO: Pause there, just pause and think about this. MR QURESHI: Your Honour, that's the way she -- JUDGE DEL FABBRO: Just pause and think about it, because you may not be explaining yourself. A man has his hand around your throat, around your neck -- A. That's correct. JUDGE DEL FABBRO: -- holding you up there. A. Then I walk back and he tells me I deserved it, so how would I -- JUDGE DEL FABBRO: You are conflating issues. Take it in steps, please. A. Right, okay. But I felt -- JUDGE DEL FABBRO: Listen to what I'm saying, take it in steps. The man has you around your neck. A. That's correct. JUDGE DEL FABBRO: That is your evidence. Yes. JUDGE DEL FABBRO: Another man, who you don't know, comes up and grabs this man and pulls him off you. A. Puts him back into the car -- JUDGE DEL FABBRO: Leaving that aside, he pulled him off you, so that the man releases his grip on your throat; is that right? Is that what happened? A. That's what happened. JUDGE DEL FABBRO: Right. A. He then told him -- JUDGE DEL FABBRO: Pausing there -- A. -- the police are on their way -- JUDGE DEL FABBRO: Pausing there, Ms Naz, why were you angry at this man who had saved you from being throttled? A. Because he then repeats to the person, "The police are on their way, go, go, go." JUDGE DEL FABBRO: Right, so you were angry at him, because he had helped this man leave. A. I felt he knew the person, yes, that attacked me. JUDGE DEL FABBRO: The fact that he saved you from further injury obviously didn't feature in your view at that point. A. It wasn't like that at the scene, it wasn't as if he was helping me, it was more the attack had happened, he just came, split him away from me, but then he was telling him to go from the scene, so he was saving his friend in my mind." 23. It is said that the judge clearly entered the arena by questioning the Appellant in this way and that what took place was in effect a type of cross-examination in the middle of examination-in-chief with the judge challenging the Appellant's assertions that Mr Wafta had failed to help her. 24. Shortly afterwards, there was a further passage of judicial intervention: "JUDGE DEL FABBRO: In your upset, Ms Naz, before you entered the store, did you remonstrate with him and say to him, "You fucking foreigner." A. No. My own mother is an immigrant, I would never -- JUDGE DEL FABBRO: Never mind your mother, never mind -- A. -- I would never use those words. JUDGE DEL FABBRO: Leave your mother out of it. MR QURESHI: Your Honour, please can she -- A. I would never use those words. JUDGE DEL FABBRO: Will you please listen when I am talking. A. I am listening, but -- JUDGE DEL FABBRO: Please stop. A. -- I wouldn't say that. JUDGE DEL FABBRO: Right. The question was very simple, did you use that language, and you said no. And you were going to say something about your mother, which I would like to record, please. "I did not say to Mr Wafta, 'you fucking foreigner'. My mother is an immigrant and I would not use that language towards anyone"." 25. A similar criticism was made about this passage and a further lengthy interruption in which the judge appeared to challenge the Appellant's evidence that the first time she had become aware of an allegation of having used racially abusive language was at the police station in the course of an interview several months after the event. That was not a controversial issue between Crown and defence, yet the Appellant's account was called into question by an extended series of questions put by the judge. 26. There was a further episode during examination-in-chief as Mr Qureshi was seeking to elicit her evidence about the use of racially abusive language: "MR QURESHI: Did you at any time use any racial abusive language to Mr Wafta? A. Never. JUDGE DEL FABBRO: Did you use abusive language? Take it in stages, because the jury have to consider this in stages. Do you accept that you used abusive language towards him? A. There was the F word used at one point. JUDGE DEL FABBRO: And presumably you would categorise that as abusive? A. Sort of, yes, if you are trying, yes, if you are swearing at some point; yes, that's abusive. JUDGE DEL FABBRO: That's abusive language. I mean, there may be a reason behind it. A. But it wasn't towards him in that way. I was explaining things. I was attacked. I might have said I was fucking attacked in that way -- JUDGE DEL FABBRO: "I did use abusive language." But didn't you say something to him personal? What kind of fucking man are you? A. Yes, I added that -- JUDGE DEL FABBRO: So that is towards him. A. Yes. JUDGE DEL FABBRO: And you would accept that that is abusive towards somebody. A. Well, at the time of -- if a woman's hurt in that way, it's just the way I expressed myself, it's not -- JUDGE DEL FABBRO: Yes, but it is abusive language; you accept that? A. Yes, swearing is abusive; isn't it. JUDGE DEL FABBRO: Right. So you did use abusive language. Now when you used that abusive language against him, did you intend to hurt him, insult him -- A. Not in any kind of way; no. JUDGE DEL FABBRO: -- harass him, alarm him? A. No. JUDGE DEL FABBRO: You were just expressing yourself? A. I was expressing myself. JUDGE DEL FABBRO: "I did not intend to alarm him or harass him." And then the final question is, in that abusive language that you accept you used, did you refer to him, and that is all that has been alleged here, that he is a… foreigner? A. No. I would never use those words. JUDGE DEL FABBRO: "I did not refer to him as a foreigner at all." Does that cover all the steps, Mr Qureshi?" 27. Again, the complaint is made that the Appellant's examination by her counsel had been interrupted and taken over by the judge, who had then repeatedly cross-examined the Appellant on what was a central issue in the case. 28. A little later, while the Appellant was being cross-examined by prosecuting counsel, the issue was raised by the prosecutor of UKIP's policy in relation to immigrants. The judge permitted the question after objection on the basis that it was relevant to the use of words which formed the subject matter of the case. At that, the Appellant made an observation and the judge then had the following exchanges with the Appellant: "A. Can I just say our policy is fairer immigration if that's what you're referring to or how you're putting -- JUDGE DEL FABBRO: Yes but the general -- A. -- the party into the frame of being against anyone, it's wrong. It's not right. JUDGE DEL FABBRO: Yes, yes. A. Because there's many, many people from many different backgrounds that support UKIP. It's nothing to do with this. JUDGE DEL FABBRO: I know. Absolutely right and perfectly entitled to do so. People are perfectly entitled to support UKIP but going back to the policies, the policy is focused primarily, not exclusively but primarily on immigration and the basis of focusing on that immigration, the party that is, is because it is considered by the party that the current immigration policies allow too many immigrants into the UK. That is the basis. A. I wouldn't -- I've never -- I wouldn't put it in that context. I don't -- I just -- I don't agree with that. Sorry, as a daughter of immigrants I wouldn't represent them if that's what they stood for. JUDGE DEL FABBRO: I mean, that's the question that Ms Kodikara is asking you. In fact it is an open question. A. It's wrong. I mean, you know, previously in the last trial she had said UKIP has controversial views against immigrants. It's wrong, you know. These are -- JUDGE DEL FABBRO: All right, let's see where we are then for that -- A. It's very wrong what she is saying. It's not true at all. Nothing against anyone. Everyone is entitled or anyone is entitled to join. JUDGE DEL FABBRO: But the reason why UKIP are so concerned, UKIP as a party -- of course individuals within are different -- A. No. I think they highlight many, sorry, other, you know, policies. JUDGE DEL FABBRO: Yes but the reason why they are so concerned about immigration is because they believe that immigration is out of control. That is a stated -- A. Not out of control in that way where they are stopping people from coming here. They want people here but they want the skilled. JUDGE DEL FABBRO: Yes, it's out of control. It's not being controlled. A. Fairer. JUDGE DEL FABBRO: Yes. A. A points based system. Nothing to do with stopping anyone from entering here." 29. Once more, it was submitted that the judge had intervened inappropriately. 30. There was some further criticism of a remark made by the judge in summing-up in reminding the jury about Mr Wafta's admitted comments that the Appellant had perhaps deserved a punch because she had a very rude mouth. We do not develop this criticism further as we do not think it makes any material difference. 31. On behalf of the Crown it was submitted that the evidence against the Appellant was overwhelming and that it was not the interventions of the judge which led the jury to disbelieve the Appellant. 32. We can dispense with that line of response straight away. If the matters complained of rendered the trial unfair, then the strength of the case against the Appellant is totally irrelevant. Every defendant, including a defendant faced with a strong prosecution case, is entitled to a fair trial. That is an absolute right irrespective of the strength of the evidence: see Randall v The Queen [2002] 2 Cr App R 17 at paragraph 28 per Lord Bingham. 33. More pertinently, perhaps, the Crown also contended that the judge's inventions had not led to an unfair trial because (a) some of the matters complained of took place in the absence of the jury, (b) the judge was seeking to ensure that there was no unfairness caused to Mr Wafta in cross-examination and (c) where the judge had questioned the Appellant, he was seeking to clarify her evidence. 34. It was additionally submitted that the summing-up was fair and that it had contained appropriate directions about ignoring any views expressed by the judge. Insofar as the judge had expressed an opinion on the nature of the defence, it was justified and in any event did not impact on the fairness of the proceedings since the jury was not present. The judge had not prevented defence counsel from putting the Appellant's defence so that the course of the trial was unaffected. Overall, it was submitted that the interventions were not such as to render the conviction unsafe. 35. We begin our consideration of the issues by commenting that the summing-up was full, balanced and fair. There has been no criticism of it made on behalf of the Appellant save as to one comment which we do not consider materially effects the position. Not only were the legal issues accurately stated to the jury, but a balanced summary of the evidence was provided, including clear exposition of challenges to the prosecution case and appropriate putting of the defence case. 36. As we were rightly reminded by the Crown, the judge had given proper directions that the assessment of matters of fact was for the jury irrespective of the judge's views or indeed those of counsel. The fact that such a direction was given cannot necessarily and of itself rectify unfairness in a trial prior to the point of summing-up. What is required is an assessment of what occurred in any particular case. 37. We have to say that we have been much concerned about the passages to which we have referred earlier in this judgment. In relation to the complainant Mr Wafta, we think there is force in the complaint made that the judge intervened in such a way in the presence of the jury and whilst defence counsel was seeking to put his case as to give the impression that the judge had formed a positive view of Mr Wafta's account. This was particularly so in a passage where the judge posed a series of questions to defence counsel which appeared to challenge the basis of the questions being put to the witness. We also consider the fact that there was more than one such intervention to be important. 38. We turn next to those passages which arose whilst the Appellant was giving her evidence. We note that the judge on more than one occasion asked a series of questions which went beyond clarification of the Appellant's evidence and which took on the character of cross-examination rather than the neutral eliciting of material. The clear tenor of the passages had the capacity to demonstrate a degree of disbelief in what the Appellant was saying and the posing of a challenge to it. 39. This process occurred on several occasions during the course of the Appellant's evidence-in-chief. In our view, it deprived her of the opportunity of presenting her case in a way of her choosing and without premature challenge to her account. It deprived her counsel, who it can be seen attempted to intervene only to be ignored by the judge, of the ability to present her case in a manner of his choosing. 40. A particular example of this arose in the last of the passages cited from the examination-in-chief where on the crucial issue of abusive language used, the judge completely took over the questioning of the Appellant for a significant period of time and did so in a manner very different from the way in which defence counsel would have elicited the evidence. 41. We also consider that the excursion by the judge into the policies of UKIP in which he purported to state what their position on immigration was despite the Appellant's attempts to qualify what the judge was saying had the vice of introducing into the arena matters of no or marginal relevance to the trial. Once that issue had been raised, it had the effect of handicapping the Appellant's ability to deal with the matter on her own terms because of the way in which the judge handled it. 42. We also have considered the observations made in the absence of the jury and in particular those suggesting that the line of defence being advanced was "far-fetched" or "bunkum" as well as statements of what the Appellant's defence should have been. 43. Comments of this sort should never have been made. However, insofar as the jury was concerned, those comments were made in their absence and the defence was not prevented from later advancing those aspects which the judge clearly regarded as ill-founded. In due course, the judge, as he was bound to, put the full defence as advanced before the jury. Accordingly, we do not consider that unfairness arises in that respect. 44. In this context, we have gone on to consider whether the Appellant was denied a fair trial in the sense that the judge's attitude, particularly in the absence of the jury, may have affected the quality of her own evidence. 45. An assertion was made in the written grounds that the combination of the judge's remarks and his criticism of the Appellant's decision to elect trial had intimidated the Appellant and prejudiced the way in which she gave evidence. That matter, however, has been put on the basis of mere assertion without support from any evidence or other material. Mr Qureshi has not maintained the assertion before us this morning. 46. Whilst we deprecate the judge's observations in the passage cited, we are not persuaded that of themselves they lead to a finding of unfairness for the reasons given above. 47. We return, therefore, to those passages which took place in the presence of the jury. We have come to the conclusion that interventions which were likely to have had the effect of giving approval to the complainant's evidence or cast doubt upon the voracity of the Appellant's account combined to create unfairness. 48. We consider also that the judge on occasions wrongly descended into the arena and abandoned the neutral role of a judge. What he did went beyond the bounds of permitted judicial intervention designed to control counsel and manage the case effectively. What occurred had the unfortunate effect of depriving the Appellant of the opportunity to present her case, unlikely or not, in its best light when she came to give her evidence. 49. The excursion into UKIP policies on immigration introduced an irrelevant and potentially prejudicial element to the case, particularly where the judge's assertions appeared to have overridden the Appellant's attempts to explain the position. 50. Looking at these matters cumulatively and in the round, we find that there was serious unfairness. 51. A reader of the summing-up alone would be surprised to have seen what occurred earlier in the trial in the sense that it showed a fair and proper balance in which the judge did not enter the arena. We have considered carefully whether that can cure the earlier unfairness. We have come to the conclusion that the unfairnesses which we have identified and which accumulated over the course of the evidence cannot be nullified by the summing-up so as to render the verdict safe. 52. Although in the summing-up the judge said that the facts were a matter for the jury to resolve and that they should ignore the views of the judge or counsel, that conventional direction in this case was wholly insufficient to dislodge the harm or potential harm done by the flaws which we have identified. 53. We have come to the conclusion that because of what occurred during the taking of evidence, this verdict was rendered unsafe through the unfairness of the process. Accordingly, this conviction must be quashed. 54. MR QURESHI: My Lord, thank you for that ruling. May I just make one observation about a potential retrial, please? 55. LORD JUSTICE TREACY: Yes. 56. MR QURESHI: This matter has been going on since March 2015. The incident happened on 22 March 2015. Thereafter, there was a full trial which resulted in the jury being discharged earlier in 2016. 57. LORD JUSTICE TREACY: Was that discharged through disagreement? 58. MR QURESHI: Yes, discharged through disagreement. 59. LORD JUSTICE TREACY: Yes, right. 60. MR QURESHI: Then the retrial, of course, then occurred in September. 61. She is a lady of previous good character. This has been going on for a very, very long time. I would respectively request whether or not it is in the public interest to have a retrial in the circumstances of this case, given that there has already been two previous trials now. 62. LORD JUSTICE TREACY: All right. We will bear that in mind. 63. What is the Crown's position, please? 64. MS KODIKARA: My Lord, we would seek a retrial in this matter, given, as I have indicated, the evidence in this case. Therefore, we would seek a retrial. 65. LORD JUSTICE TREACY: All right. We will consider that. Thank you. (A short adjournment) 66. LORD JUSTICE TREACY: We consider that the public interest demands a retrial in this case, notwithstanding the fact that there has already been a trial and a retrial. Accordingly, we make such an order. 67. We make the following orders. We allow the appeal. We quash the conviction. We order a retrial to take place on the count of which a conviction was initially recorded. We direct that a fresh indictment be served. We order that the Appellant be re-arraigned on that fresh indictment within two months. We hope in the circumstances that can take place sooner. We direct that the venue for retrial be determined by the presiding judge for the South Eastern circuit. 68. The Appellant is not in custody. We will come back to the question of bail in a moment. 69. We also think it right to make an order under section 4(2) of the Contempt of Court Act 1981 restricting reporting of the proceedings until after the delivery of verdict in the retrial. We make that order so as to avoid the possibility of prejudice being caused to the retrial by reporting of matters which have been aired in the judgment. 70. Can we just come back to the question of bail? 71. MR QURESHI: Yes. My Lord, she has always been on unconditional bail, so there is no reason, in my respectful submission, why that should not continue. 72. MS KODIKARA: My Lord, I have no representations. 73. LORD JUSTICE TREACY: No. 74. Well, we order that the Appellant is on unconditional bail pending the retrial. 75. Right. Are there any other matters? 76. MR QURESHI: No. Thank you. 77. LORD JUSTICE TREACY: No. Thank you very much	{"ConvCourtName":["Snaresbrook Crown Court"],"ConvictPleaDate":["2016-09-22"],"ConvictOffence":["Racially aggravated intentional harassment, alarm or distress"],"AcquitOffence":[],"ConfessPleadGuilty":["No"],"PleaPoint":[],"RemandDecision":["Unconditional Bail"],"RemandCustodyTime":[],"SentCourtName":["Snaresbrook Crown Court"],"Sentence":["£1,500 fine","£3,500 prosecution costs","£150 surcharge order"],"SentServe":[],"WhatAncillary":[],"OffSex":["All Female"],"OffAgeOffence":[],"OffJobOffence":[],"OffHomeOffence":[],"OffMentalOffence":[],"OffIntoxOffence":[],"OffVicRelation":["Stranger"],"VictimType":["Individual person"],"VicNum":[],"VicSex":["All Male"],"VicAgeOffence":[],"VicJobOffence":["Employed"],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":["Victim testimony","Eyewitness testimony (Mr Farooq, customer)","Eyewitness testimony (Mr Sanders, store manager)"],"DefEvidTypeTrial":["Offender denies offence","Allegation of witness collusion"],"PreSentReport":[],"AggFactSent":[],"MitFactSent":["Offender has no relevant previous convictions","Offender showed genuine remorse (implied by previous good character)"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["Conviction is unsafe"],"AppealGround":["Trial judge intervened inappropriately and unfairly","Judge's interventions gave impression of bias","Judge's comments in absence of jury undermined defence","Judge's questioning deprived appellant of opportunity to present case"],"SentGuideWhich":[],"AppealOutcome":["Allowed & Conviction Quashed","Retrial ordered"],"ReasonQuashConv":["Serious unfairness due to judge's interventions during evidence","Judge abandoned neutral role and entered the arena","Appellant deprived of opportunity to present case","Cumulative effect of interventions rendered trial unfair and conviction unsafe"],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
No: 201605391/A3 Neutral Citation Number: [2016] EWCA Crim 2217 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Tuesday, 13th December 2016 B e f o r e : LORD JUSTICE BURNETT MR JUSTICE WYN WILLIAMS MR JUSTICE SUPPERSTONE - - - - - - - - - - - - - - - - - R E G I N A v NAOMI DONNA REYNOLDS - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - Ms P Ahluwalia appeared on behalf of the Appellant The Crown was not present and was unrepresented - - - - - - - - - - - - - - - - - J U D G M E N T 1. LORD JUSTICE BURNETT: The default position for those who are convicted of taking contraband items into a prison is an immediate custodial sentence, the length of which generally depends upon matters which include the nature of the items smuggled in, the use to which the prisoner provided with them will put them and the accused's own character including previous convictions and personal mitigation. 2. Many cases concerning smuggling contraband into prisons have come before this court. Ms Ahluwalia, who appears on behalf of the applicant this morning, has produced an extremely helpful bundle of those authorities. They include R v Cluskey [2016] EWCA Crim 1534 , R v Boyton [2009] EWCA Crim 1773 , R v Nathan Watson [2013] EWCA Crim 271 , R v Hamilton [2016] EWCA Crim 78 , R v Smak [2012] EWCA Crim 1280 and R v Ormiston [2016] EWCA Crim 363 . Those authorities identify the real vice of smuggling contraband into prisons, which is well-known. The smuggling of such contraband can lead to disorder and also to criminality within those prisons. 3. The question before us is whether the circumstances of the applicant in this case are such that unusually the sentence of imprisonment should have been suspended. The application for leave to appeal against sentence has been referred to the Full Court by the Registrar. We grant leave. 4. At the Crown Court at Isleworth, on 24th November 2016, the appellant was sentenced by His Honour Judge McDowall to a total of 4 months' imprisonment in respect of three offences to which she had pleaded guilty. The first was conveying a list A article, namely cannabis, into a prison, contrary to section 40 B of the Prison Act 1952 . The second was conveying list B articles, namely SIM cards into a prison, contrary to section 40 C of the Prison Act 1952 and the third was simple possession of the cannabis. 5. The facts were these. On 2nd July 2016 the appellant went to Wormwood Scrubs to visit her boyfriend. When she saw him the appellant passed to him a package wrapped in a condom which contained compressed herbal cannabis and 11 SIM cards. The items were later retrieved from her boyfriend during a search and the appellant was detained before she left the prison. She knew very well that the items were prohibited. The prison bristles with signs warning against taking in contraband, including drugs and SIM cards. Lockers are provided to enable visitors to deposit any unsuitable items they have on them. Visitors are required to sign a declaration confirming that they have nothing on them which is prohibited. The appellant signed such a declaration knowing it to be untrue. 6. Police were called and the appellant said that she had been forced into doing this by her boyfriend and the people in the cell next to him. The appellant's telephone was seized and its content looked at. It became apparent that she had arranged to collect the items from someone who was called "Gini's girl". 7. When interviewed by the police the appellant provided no further information because, as she explained, she was concerned about reprisals, not only against herself but against members of her family. 8. The appellant pleaded guilty on a written basis which was not challenged by the prosecution. There was no Newton hearing because the prosecution indicated that the circumstances in which the appellant smuggled in the contraband were "not within their knowledge". That has echos of the old formulae that the prosecution "cannot gainsay" the basis of plea which may be thought unfortunate. Whilst in this case there has been no suggestion that the basis of plea is other than accurate, a prosecutor should not be shy of submitting in an appropriate case that an accused should confirm on oath the basis of plea and thereby subject him or herself to cross-examination. That said the basis of plea was as follows: "1. I received threats from my then partner... about bringing into prison what he said was weed. 2. [He] made indirect and repeated threats about my brother, references to his school and specifically stating that 'the only person who could keep my brother safe was me, so make sure I turn up'. 3. I deeply regret my actions that day, but seek to plead guilty as I accept that I could have reported these matters to the police or tried contacting third parties. I also accept that the threats stated over the phone were not imminent ones on reflection." 9. The judge proceeded to sentence without the benefit of a pre-sentence report. In the circumstances of this case that was an appropriate course. Neither do we need a report on the appellant to assist us in the appeal. 10. Ms Ahluwalia, who represented the appellant then as now, with her instructing solicitors put together a comprehensive bundle of materials to assist the judge, in support of the mitigation advanced on behalf of the appellant. It was directed towards persuading the judge to suspend any custodial term which was considered appropriate in this case. 11. A forensic clinical psychologist, Dr Sanya Krljes, provided a detailed report explaining the background to the appellant's offending and of the appellant herself. There was an impressive bundle of testimonials and references and a letter from the appellant explaining the circumstances. 12. A number of previous decisions of this court were referred to in the course of the hearing before the judge. Copies of the relevant Sentencing Guidelines Council Definitive Guideline on Seriousness and the Sentencing Council's Definitive Guideline on Community and Custodial Sentences were also helpfully produced by Ms Ahluwalia. She referred in addition to the resolution of the General Assembly of the United Nations of 16th March 2011 on the treatment of women prisoners and non-custodial measures for women prisoners. These are known as the Bangkok Rules although it does not form part of the law of the jurisdictions of the United Kingdom. 13. The judge concluded that the matters referred to in the medical report, the references and the letter from the appellant herself were matters which properly could mitigate the length of the sentence but that they did not carry sufficient weight to lead to the conclusion the sentence should be suspended. We note that a full discount was given for the appellant's guilty plea. 14. The appellant was born on 29th September 1988. She has no previous convictions. In the normal language of the criminal courts she was of good character. That said, the material in the references demonstrates that this appellant is of positive good character beyond the fact of having no previous convictions. She was a long-term volunteer with a community youth project in Hackney, having gained valuable insight when she did a degree focusing on Youth Justice matters. It is an unfortunate irony that the appellant has spent much of her own adult life trying to keep others out of trouble. She has also been a long-term volunteer with St Andrews Football Club where her younger brothers play. They are respectively 15 years old and 9 years old. Until these events engulfed her, she worked as a support worker at a school looking after children with special needs. She had shown herself extremely able in providing support not only to the children at that school but also their parents. She had progressed to the stage of beginning to teach maths to the children. 15. Her own letter and the report from the psychologist provide considerable insight into the circumstances of the offending. Her boyfriend had threatened to harm her brothers if she failed to do as he asked. 16. The psychological report explains this appellant's history of falling in with men who she trusts but who are abusive and violent. The man she visited in prison was not the first such person. Dr Krljes paints a vivid picture of a vulnerable, weak and impressionable woman. She was experiencing a range of psychological difficulties which included low mood, low self-esteem, hopelessness and anxiety. She manifested with a number of symptoms of post traumatic stress disorder. Dr Krljes considered her socially isolated and hyper vigilant. 17. The appellant reported a history of physical and emotional abuse in the context of intimate relationships which appeared to have led her to develop Battered Woman Syndrome. These events had resulted in what Dr Krljes describes as "learned helplessness" and amongst the features redolent of PTSD are episodes of re-experiencing the violence, numbing of responsiveness, hyper arousal, disruptive interpersonal relationships and difficulties with body image. Dr Krljes opines that the appellant's traumatic life experiences had left her vulnerable to further abuse. 18. The history recounted in the psychological report, which we should say goes into more detail than is necessary to summarise in this judgment, indicated that she was more vulnerable in giving into and complying with her partner's request to bring the prohibited items to prison than would have been the case in someone with anything approaching normal resilience. 19. The material before us also includes a detailed statement from the appellant's mother which explains her own considerable physical difficulties. The appellant is thus responsible not only for caring for her mother from time to time when she is unwell but also when those events occur effectively becoming the primary carer of her two young brothers to whom she is devoted. 20. It should not be thought that the fact that someone who takes contraband into a prison has been put under pressure by a relative, partner, or friend, will carry much weight in the generality of these cases. It is relatively rare for people who carry such contraband to do so entirely at their own initiative and pressure of some sort is regularly brought to bear. 21. Ms Ahluwalia realistically recognises that the circumstances of the coercion, particularly where, as here, the appellant explicitly recognised that the pressure was not immediate and could have been reported, provides little support for the submission that the sentence should have been suspended. 22. The features that Ms Ahluwalia in particular relies upon are the constellation of psychological problems to which we have adverted, the positive good character of this appellant and the unusual circumstances which lead her to assume caring responsibilities for both her mother and younger siblings from time to time. 23. We are persuaded that this very unusual combination of circumstances justifies the quite exceptional course of imposing a suspended sentence in this case. 24. At the heart of the appellant's problems is her tendency to associate with men who treat her badly. They become violent and abusive. But she is unable to distance herself from them. They have ended up in prison. For that reason, whilst we are prepared to suspend this sentence, in considering the operational period, we conclude that it should be a long one, namely 2 years. Had the sentence been imposed at the Crown Court on 24th November, it very likely that an unpaid work requirement might have been appropriate. But the appellant has been in custody now for 3 weeks. In those circumstances, we shall do no more than suspend the sentences imposed by the judge which, as we have indicated, totalled 4 months' imprisonment, for a period of 2 years. The ancillary orders made by the judge are unaffected. To that extent this appeal is allowed.	{"ConvCourtName":["Crown Court at Isleworth"],"ConvictPleaDate":["2016-11-24"],"ConvictOffence":["conveying a list A article, namely cannabis, into a prison, contrary to section 40B of the Prison Act 1952","conveying list B articles, namely SIM cards into a prison, contrary to section 40C of the Prison Act 1952","simple possession of the cannabis"],"AcquitOffence":[],"ConfessPleadGuilty":["Yes"],"PleaPoint":[],"RemandDecision":[],"RemandCustodyTime":[21],"SentCourtName":["Crown Court at Isleworth"],"Sentence":["4 months' imprisonment"],"SentServe":["Single"],"WhatAncillary":["ancillary orders made by the judge are unaffected"],"OffSex":["All Female"],"OffAgeOffence":[27],"OffJobOffence":["Employed"],"OffHomeOffence":["Fixed Address"],"OffMentalOffence":["Had mental health problems"],"OffIntoxOffence":[],"OffVicRelation":["Acquaintance"],"VictimType":[],"VicNum":[],"VicSex":[],"VicAgeOffence":[],"VicJobOffence":[],"VicHomeOffence":[],"VicMentalOffence":[],"VicIntoxOffence":[],"ProsEvidTypeTrial":[],"DefEvidTypeTrial":[],"PreSentReport":[],"AggFactSent":["offence committed in prison context","knew items were prohibited"],"MitFactSent":["offender showed genuine remorse","offender was of positive good character","offender had caring responsibilities","offender had psychological difficulties including PTSD and Battered Woman Syndrome","offender was coerced by threats from partner"],"VicImpactStatement":[],"Appellant":["Offender"],"CoDefAccNum":[],"AppealAgainst":["appeal against sentence"],"AppealGround":["sentence should have been suspended due to exceptional mitigation"],"SentGuideWhich":["Sentencing Guidelines Council Definitive Guideline on Seriousness","Sentencing Council's Definitive Guideline on Community and Custodial Sentences"],"AppealOutcome":["Allowed"],"ReasonQuashConv":[],"ReasonSentExcessNotLenient":[],"ReasonSentLenientNotExcess":[],"ReasonDismiss":[]}
"Neutral Citation Number:\n[2009] EWCA Crim 1612\nCase No:\n200900866/C3\nIN THE COURT OF APPEAL\nCR(...TRUNCATED)	"{\"ConvCourtName\":[\"Chelmsford Crown Court\"],\"ConvictPleaDate\":[\"2008-11-04\"],\"ConvictOffen(...TRUNCATED)
"Case No:\n201403840 C3\nNeutral Citation Number:\n[2016] EWCA Crim 1712\nIN THE COURT OF APPEAL (CR(...TRUNCATED)	"{\"ConvCourtName\":[\"Crown Court at Isleworth\"],\"ConvictPleaDate\":[\"2014-07-15\"],\"ConvictOff(...TRUNCATED)
"Neutral Citation Number:\n[2023] EWCA Crim 1477\nCase No:\n202301561 B5\nIN THE COURT OF APPEAL (CR(...TRUNCATED)	"{\"ConvCourtName\":[\"Crown Court at Birmingham\"],\"ConvictPleaDate\":[\"2023-04-13\"],\"ConvictOf(...TRUNCATED)
"\nWARNING: reporting restrictions may apply to the contents transcribed in this document, particula(...TRUNCATED)	"{\"ConvCourtName\":[\"Lewes Crown Court (sitting at the Hove trial centre)\"],\"ConvictPleaDate\":[(...TRUNCATED)

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English Appeal Court Judgments

Dataset for training and evaluating large language models (LLMs) for information extraction in the domain of publicly available England and Wales Court of Appeal (Criminal Division) judgments. The coding schema includes 43 annotated codes across several categories of judgments, including:

Sampling judgments/cases
Extracting basic information on court hearings
Extracting basic information on offence, trial, and sentence
Extracting basic information on appeals

Dataset Details

Dataset Description

The instruction dataset for England and Wales was created using a manual process. Legal experts first defined extraction schemas and coding guidelines in a workshop. We then built an HTML parser to download all 6,154 Criminal Division Court of Appeal judgments (as XML, up to 15 May 2024) under the Crown Copyright and Open Government licences. Yearly word-length statistics (min/25th/median/75th/max) revealed a bi-modal distribution, a few extreme outliers (>40 k words), and an incomplete 2024 tranche.

For curator training, judgments were stratified into five token-length bins, with five cases sampled per bin (110 total; four later removed), yielding 106 candidates. Twenty were used for inter-rater (20 distinct coders) and intra-rater (10 recoded) reliability checks. Once reliability thresholds (>80%) were achieved, two further stratified batches of 800 judgments each were assigned to Curator 1 (531 annotations) and Curator 2 (96 annotations). After careful cleaning, 573 annotated judgments were selected for the final dataset.

Throughout, curators followed strict guidelines on text-span boundaries, code-type selection, comment conventions, and spreadsheet documentation, all anchored to a shared coding scheme.

Curated by: Łukasz Augustyniak, Jakub Binkowski, Albert Sawczyn, Prof. Mandeep Dhami, Prof. David Windridge
Funded by: CHIST ERA call ORD "Open & Re-usable Research Data & Software" (Judicial Decision Data Gathering, Encoding and Sharing/ No ANR-23-CHRO0001)
Language(s) (NLP): English
License: [More Information Needed]

Dataset Sources

The dataset is primarily based on the JuDDGES/en-court-raw dataset, which is curated from publicly available judgments from the Court of Appeal (Criminal Division).

Uses

Direct Use

The dataset should be used for evaluating Large Language Models (LLMs) for information extraction in domain of England and Wales Court of Appeal (Criminal Division) judgments.

Out-of-Scope Use

The datasets should not be used for legal research analysis as it might not fully present the current state of the law practice.

Dataset Structure

Dataset is partitioned into 3 splits, as described in the following table.

Split	Annotation	#samples
test	automatic (`gpt-4.1-2025-04-14`)	573
annotated	manual (without pre-annotations)	573

Each split has exactly two columns:

context: the full text of the court judgment
output: the JSON object with the extracted information

The output JSON object has the following fields:

Field Name	Description
ConvCourtName	Name(s) of the court where the defendant was convicted or pleaded guilty
ConvictPleaDate	Date(s) on which the defendant was convicted or pleaded guilty
ConvictOffence	Offence(s) of which the defendant was convicted
AcquitOffence	Offence(s) of which the defendant was acquitted
ConfessPleadGuilty	Did the defendant confess or plead guilty?
PleaPoint	Stage at which the plea was entered
RemandDecision	Remand decision post-conviction
RemandCustodyTime	Duration in days of any remand in custody
SentCourtName	Name(s) of the court where the defendant was sentenced
Sentence	Sentence(s) imposed
SentServe	How sentences run
WhatAncillary	Ancillary orders applied by the court
OffSex	Gender(s) of the defendant(s)
OffAgeOffence	Age of defendant at offence
OffJobOffence	Employment status at offence
OffHomeOffence	Accommodation status at offence
OffMentalOffence	Learning/developmental or mental-health issues noted
OffIntoxOffence	Intoxication status
OffVicRelation	Relationship defendant→victim
VictimType	Type of victim
VicNum	Number of victims or ratio
VicSex	Gender(s) of victim(s)
VicAgeOffence	Age of victim(s) at offence
VicJobOffence	Employment status of victim(s)
VicHomeOffence	Accommodation status of victim(s)
VicMentalOffence	Learning/developmental or mental-health issues for victim(s)
VicIntoxOffence	Victim's intoxication status
ProsEvidTypeTrial	Evidence types by prosecution
DefEvidTypeTrial	Evidence types by defence
PreSentReport	Risk level from pre-sentence report
AggFactSent	Aggravating factors at sentencing
MitFactSent	Mitigating factors at sentencing
VicImpactStatement	Was a victim impact statement provided?
Appellant	Who brings the appeal
CoDefAccNum	Number of co-defendants/co-accused
AppealAgainst	Ground(s) for appeal
AppealGround	Specific legal grounds of appeal
SentGuideWhich	Sentencing guidelines or statutes cited
AppealOutcome	Outcome of the appeal
ReasonQuashConv	Reasons for quashing conviction
ReasonSentExcessNotLenient	Reasons why sentence was unduly excessive
ReasonSentLenientNotExcess	Reasons why sentence was unduly lenient
ReasonDismiss	Reasons for dismissal of the appeal

Dataset Creation

The dataset was created strictly adhering to the Annotation Guidelines for Curators:

Source Data

The dataset sourced from JuDDGES/en-court-raw dataset, which is curated from publicly available judgments from the Court of Appeal (Criminal Division).

Data Collection and Processing

The dataset consists of publicly available judgments from the Court of Appeal (Criminal Division) for England and Wales. Legal experts first defined extraction schemas and coding guidelines during a dedicated workshop. An HTML parser was subsequently developed to automatically download all 6,154 judgments (XML format) published by 15 May 2024 under the Crown Copyright and Open Government licences.

Yearly word-length statistics (minimum, 25th percentile, median, 75th percentile, maximum) indicated a bi-modal distribution, the presence of extreme outliers (judgments exceeding 40,000 words), and incomplete data for 2024. Judgment lengths showed considerable variability across years:

2003–2007: trend toward shorter judgments.
2008–2011: increasing lengths, peaking at 4,618 words in 2011.
2012–2016: consistently high median lengths.
2017–2024: fluctuations, notable peaks in 2019 and 2021, and declines in 2023 and 2024.

Significant outliers in judgment length occurred in 2015 and 2020, surpassing 70,000 and 115,000 words, respectively.

Who are the source data producers?

The original source of data is the from JuDDGES/en-court-raw dataset, which is curated from publicly available judgments from the Court of Appeal (Criminal Division).

These judgments are official court documents published by the Court of Appeal (Criminal Division) in England and Wales.

Annotations

Initially 20 documents have been given to two curators as part of training as well for checking the consistency of the annotations. Once a reliable annotion evaluation was reached the curators we assigned with additional 800 judgements to curate.

Annotaions have been curated using (Hypothes.is)[https://hypothes.is] Chrome plugin.

Annotation Training Sample Selection:

Judgments were stratified into five token-length bins (min, 25th percentile, median, 75th percentile, max).
5 judgments were sampled per bin, resulting in 110 cases (106 after removing four for legal reasons).
20 were selected for reliability checks:
- Inter-rater: 20 coders annotated the same 20 documents
- Intra-rater: 10 of those documents were re-coded by the same curators
Once >80% agreement was achieved (Krippendorff’s α), two additional batches of 800 cases were assigned:
- Curator 1: 531 annotations
- Curator 2: 96 annotations
Final cleaned dataset includes 573 annotated judgments.

Annotation process

Annotations were created using the Hypothes.is Chrome extension.

Steps:

Install Hypothes.is from the Chrome Web Store.
Open the court judgment URL in the browser.
Use the extension to highlight and annotate relevant text spans.
Add tags as per the shared tagging scheme.
Add relevant comments (or a dash "–" if none).
Submit to the correct annotation group.

Annotation Guidelines:

All annotations must remain within a single sentence.
Spans must match predefined code types exactly.
Comments must be relevant to the hypothesis.
Missing or inapplicable fields should be marked as “N/A,” “–,” or “Don’t Know.”

Who are the annotators?

The annotators were post-graduate level students from Middlesex University under the supervison of Prof. Mandeep Dhami and Prof. David Windrige.

Personal and Sensitive Information

The context column contains the full text of the judgment. While court employees perform anonymization of the judgments before publishing them, several personal information, like name of the judges, offender names (aged more than 18) are still present in the data, as it permitted by law.

Bias, Risks, and Limitations

The curation process might not find all cases present at the time of the curation which has a cut of date of May 2024.

Recommendations

The dataset should not be used for legal research analysis as it might not fully present the current state of the law practice.

Citation

BibTeX:

TBA

APA:

TBA

Dataset Card Contact

Downloads last month: 3

Size of downloaded dataset files:

31.8 MB

Size of the auto-converted Parquet files:

15.9 MB

Number of rows:

1,146