England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE BLACKFRIARS CROWN COURT
(His Honour Judge Byers)

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/08/2005

Judgment of the Court:


 


1. On 5 March 2004 before His Honour Judge Byers at the Blackfriars Crown Court this appellant was convicted by the jury, by a majority of 9 to 1, of an offence of conspiring to cheat the Public Revenue, which was charged in the single count contained in the indictment. On 26 April 2004 he was sentenced to four years imprisonment. He now appeals against conviction by leave of the single judge. The case was argued before us on 8 June 2005. At the end of the hearing we indicated that the appeal would be dismissed and we would deliver our reasons later. This we now do.
2. There were two co-defendants charged with the same conspiracy, Richard Knight and Terence Moore. Knight was acquitted by the jury on 4 March 2004. Moore was likewise acquitted on 5 March 2004. There was another alleged conspirator, Peter Rumball, who had originally been jointly charged with the others. But he fled the jurisdiction in 2001, and has never stood his trial.
3. The trial was a long one, and was beset by delays and interruptions. The appeal turns entirely on alleged deficiencies in the judge's summing up. It is said that because of the delays and interruptions it was particularly important that the summing up should be accurate and should properly distil the Crown and defence cases. It is convenient therefore to give an account in barest outline of the course of the trial. It started in September 2003. The prosecution evidence was called between 9 October and 9 December 2003, but out of 42 sitting days within that period, because of illnesses of members of the jury the court sat with the jury on only 21 days. The appellant's evidence began on 9 December 2003, but was not concluded until 20 January 2004, although he was giving evidence for 10 court days only during that period. The evidence as a whole was concluded on 3 February 2004. By then two jurors had been discharged owing to illness. Closing speeches lasted for 6 days. The judge began his summing on Friday 13 February 2004. It lasted a little over four hours, and the jury retired on Monday 16 February 2004. Their deliberations were punctuated by substantial interruptions: there was a hospital appointment, a funeral, a family holiday, an illness and a job appointment. As we have indicated the jury finally returned their guilty verdict against the appellant on 5 March 2004.
4. The case arises out of the tax treatment of occupational pension schemes. Persons making contributions to occupational pension schemes approved by the Inland Revenue are entitled to tax relief on the contributions. Very broadly the fund created by the contributions remains intact until the contributor's retirement date, and there are then strict rules about lump sum payments and the purchase of annuities. Ordinarily if the contributor has access to his pension fund before retirement, tax is exigible on the sum or sums which he takes out.
5. In this case the conspiracy alleged involved arrangements under which contributors to pension schemes unlawfully obtained advance access to their money without paying the required tax. The conspiracy was said to have run from October 1997 to October 1999. In October 1997 the appellant went into partnership with Peter Rumball. They claimed to be "International Tax and Offshore Specialists". They traded as Stax Consultancy, initially from Rumball's home address. They had previously both worked for a company called Eastfield Consultants which was owned by a man named Malcolm Tune. It marketed a scheme for getting money out of pension funds. Before that the appellant, who had left school at 16 to train as a machine tool engineer, had no experience in the financial services industry. Rumball was an accountant and ex-banker and had worked in pensions before.
6. The Stax Consultancy obtained control of two companies, which we may call Brokerage and Ashgaine. The schemes concerned were sold to 96 clients to whom the prosecution referred, 35 of them through independent financial advisors Knightsbridge International, of which the co-defendants Knight and Moore were directors. The schemes involved the transfer of the clients' existing pension funds to what purported to be the occupational pension scheme of either Brokerage or Ashgaine. From these, according to the Crown case, the money (less the fees which went to Stax) went back to the clients and into their pockets by either of two methods. One of the appellant's complaints in very broad terms is that the judge failed to distinguish between these methods with sufficient clarity, and we shall explain them at this stage. For reasons which will become apparent the two methods may respectively be called "Quebec" and "Fidelitas". Quebec worked as follows. The client's funds were transferred from Brokerage or Ashgaine to an offshore company, whose trading name was Chamberlain Associates, which was under the actual control of the appellant and Rumball. That was done (on the face of it) in order to fund payments of the premium for a deferred annuity supposedly to be provided by the Quebec Insurance Company Limited which was registered in St Vincent and administered in Liechtenstein. Quebec then, again on the face of it, made a loan to the client in a sum equivalent to the greater part of supposed premium paid for the annuity. The loan was stated to be repayable when the client reached the age of 75. The Crown case was that these arrangements were a sham: there was never any intention that the so called loan be repaid; the whole thing was nothing but a device to return most of the money which had accumulated in the client's original pension fund to the client without tax being paid.
7. Fidelitas, which the Crown said evolved out of Quebec and was developed by the appellant, was in some respects different. The first stage was the same: the transfer of the client's pension fund to Brokerage or Ashgaine. But the money was then paid to Fidelitas Sparkassa, which was a Swedish Credit Union (or an entity similar to a credit union) established by the appellant in 1998. It had an accommodation address in Sweden but was operated at all times by the appellant. The funds were then sent to the Fidelitas bank account with the Bank of Nova Scotia in Jersey, and were then transferred to a company established for the particular client and administered by trustees provided by the Bank of Nova Scotia with beneficiaries selected by the client. Here, too, an annuity was involved on the face of the arrangements: an annuity from age 75 onwards from investment of the transferred sum, with no right to receipt of any part of the capital. This was said by the Crown to be a sham. The reality was that the client acquired a right to an annuity from the Bank of Nova Scotia purchased when he was aged 75 with 10% of the money transferred across from Fidelitas, and, critically, a right to direct (at any time) at his entire discretion what should be done with the rest of the money.
8. On the Crown case, Quebec and Fidelitas produced essentially the same outcome: the client got his hands on the pension money sooner than he should have done without payment of tax. The Crown say that over £16.5 million of pension funds was transferred to Brokerage or Ashgaine, and then (less Stax's cut) back to the clients, with a tax loss of £5.2 million odd, calculated on the basis most favourable to the appellant.
9. The particular respects in which it is said that the Revenue was cheated by these arrangements are reflected in the indictment. It is convenient to describe them by reference to the way in which the indictment is drawn. The particulars of offence are set out in as follows:

"ANIL KUMAR, RICHARD PAUL ERIC KNIGHT AND TERENCE GEORGE MOORE between the 1^st day of October 1997 and the 31^st day of October 1999 conspired together and with Peter Rumball dishonestly to cheat Her Majesty and the Commissioners of Inland Revenue by securing the release of funds held in pension schemes approved by the Inland Revenue without the payment of tax thereon in circumstances in which:

i) the funds were not transferred to a pension scheme that was able to receive the funds in accordance with rules approved for it by the Inland Revenue, in that the funds were transferred to the Brokerage Company Ltd Executive Pension Plan or the Ashgaine Properties Ltd Retirement Scheme

(a) which were not at the time of the transfers schemes approved by the Inland Revenue; and

(b) of which the beneficiary of the funds was not entitled to be a member;

ii) documents were created which were designed to give the impression (such impression being false) that the funds transferred to the Brokerage Company Ltd Executive Pension Plan or the Ashgaine Properties Ltd Retirement Scheme were transferred to pension schemes that were able to receive them, with the result that the transfer gave rise to no tax liability;

iii) after the deduction of fees the beneficiary of the funds received the funds transferred, or control over them, by the means of annuity contracts issued by Quebec Insurance Company Ltd or Fidelitas Sparkassa EK For, which were in truth shams."

10. We should explain these particulars by reference to the nature of the Crown case. The point being made at (i)(a) starts with the proposition that transfer of the client's funds from the original pension providers ought to have been to the fundholders of a legitimate occupational pension scheme. Otherwise the transfer would immediately have fallen foul of the material statutory provisions and generated a liability to tax. Now, the legitimacy of an occupational pension scheme depended upon its enjoying Inland Revenue approval. Brokerage and Ashgaine, which were of course the transferees in this case, had previously enjoyed such approval. The continuance of that approval was made expressly conditional on the Revenue being advised at once of any alteration to either company's rules. These companies had previously been used in the schemes run by Eastfield Consultants, to which we have referred in passing. In May 1997 (Brokerage) and July 1997 (Ashgaine) the rules of both companies' pension schemes were changed, so as to refer to the carrying on of long term insurance business through a branch or office in the European Union, whereas previously the reference was to a branch or office in the United Kingdom. These rule changes were not notified to the Revenue. Thus on any view by the time of the alleged inception of the conspiracy in October 1997 Brokerage and Ashgaine were in law incapable of supporting legitimate occupational pension schemes for the purpose of the relevant tax provisions. The appellant's case was that although at Eastfield he had conducted the very meeting at which the Ashgaine rules had been amended, he had not appreciated the significance of the fact.
11. In addition, however, the Brokerage and Ashgaine pension schemes had by law been terminated during the Eastfield period because the assets held in them had been transferred to the beneficiary.
12. We turn to (i)(b) in the particulars: "the beneficiary of the funds was not entitled to be a member" [of Brokerage or Ashgaine's schemes]. This refers to another legal requirement of occupational pension schemes. It is that the contributor has to be employed by the fund-holder. On transfer of their funds to Brokerage and Ashgaine, therefore, the clients had to appear to be employed by those companies. Of the 96, 37 went to Brokerage and 59 to Ashgaine. The Crown case is that none of the clients whose funds were transferred to Brokerage or Ashgaine were in truth employees of either company. Yet documents – "employment letters" – purportedly setting out terms of employment were sent to clients. A considerable number of them were signed by the appellant as "Operations Manager". In particular, he signed the letters going to the clients who were the first three in time. Neither Brokerage nor Ashgaine carried on any trade during the period specified in the indictment, and it appears did not employ anyone.
13. The assertion at (ii) is that the employment letters and the other documents contained numerous false statements, designed to produce a wholly misleading impression as to the employment of the clients by Brokerage and Ashgaine.
14. The allegation at (iii) is that the annuity contracts in relation both to Quebec and Fidelitas were shams. The term "sham" is here used in the sense described by Diplock LJ as he then was in Snook v West Riding Investments Ltd [1967] 2 QB 786.
15. The appellant gave evidence. His defence in very general terms (he had particular things to say about some particular points) was that he did nothing dishonest at any stage. He relied heavily on the advice and expertise of others, notably the absent Rumball.
16. It is convenient to describe the grounds of appeal by reference to the skeleton argument prepared by Mr Rook QC and Mr Lucraft on behalf of the appellant. Five criticisms of the summing up are advanced:

"(a) the trial judge failed to give appropriate directions in respect of particular (iii) of the particulars of offence in the indictment.

(b) the trial judge gave a highly selective and misleading summary of the vital prosecution evidence (the clients) that had been called over two months before the summing-up started.

(c) The trial judge failed to deal adequately with the evidence in respect of the role of the Bank of Nova Scotia (in relation to Fidelitas.)

(d) The trial judge failed to give directions as to the evidential status of two vital documents, namely the "presentation document" [Tab 9] and the three Quebec "side agreements" [Tab 10].

(e) The effect of the above was compounded by the fact that the trial judge failed adequately to set out the appellant's defence to particulars (i), (ii), and (iii) of the single count on the indictment."

17. Before dealing with the specific grounds advanced it is we think useful to set out a central part of the judge's general directions on the law, where he deals with the concept of "sham":

"Now, a sham. I must move on to that but, before I do, an important warning. Every person in this country has the right to arrange their financial affairs so that they pay the minimum amount of tax. You are not obliged to open your bank account and say to the Inland Revenue, 'Help yourself to whatever you want'.

It is not necessarily dishonest to implement a scheme which has no commercial purpose other than to reduce a tax liability. That may well be lawful tax avoidance.

On the other hand, dishonest tax evasion is obviously unlawful. That is telling lies deliberately to reduce a tax liability. Deliberately creating a situation through lies and subterfuge to mislead and consequently to show a situation which was different to the true one, where the true one would have rendered you liable to tax, but the false one does not .. I am sure you can see the difference between that .. and, within the rules, even exploiting a loophole, which I will come on to, which is perfectly lawful and honest, between that and setting up a scheme which you know to be dishonest in order to cheat the Inland Revenue of tax.

The word 'sham' .. and it has been drawn to your attention that in some dictionaries it is defined as 'trick', 'shoddy', 'spurious' .. can take on a derogatory or pejorative meaning. It used to be said of schoolboys in my day, anyway, that if they feigned illness in order to escape lessons that they were shamming, faking it, if you like. Rather different to the definition given by popular television programmes these days, but that is the pejorative sense of sham.

But in law it has a much more restrictive meaning, and you have heard that meaning rehearsed in this court before, but I give it to you because I must. A document or an act is a sham if it purports to show a legal situation that is other than the real one; intending to give the appearance of creating legal rights different from the actual legal rights.

So you have to decide if the created annuities and hence loans and trusts were a sham, and you will do that taking into account the evidence that you have heard and the documents that were created; the way in which they were created; the actual realities of the obligations to which the clients signed up. Consider what was the reality. And are you sure that this was a sham within the definition that I have just given you? If you are not sure that they were a sham, then that is the end of the matter. No cheat, no sham, not guilty.

If you are sure that they were a sham, then you will still have to go on and consider the state of knowledge of each of the defendants and treat the state of knowledge of each of the defendants quite separately. Did they know it was a sham?".

[transcript vol 1, page 11, line 12 – page 13, line 14.]

18. Mr Rook QC for the appellant made it very clear at the outset of his submissions that the principal burden (though not, of course, the entirety) of his case rested on the Judge's directions, or rather what Mr Rook would say were his omissions, in relation to Particular (iii) in the indictment. He does not criticise the general directions relation to "sham" given by the Judge which we have set out; indeed it seems to us, as Miss Glynn QC for the Crown submitted, that they are entirely correct. Rather, Mr Rook says that the Judge failed to explain to the jury how the law on "sham" might be related or applied to the details of the case, and especially to the facts giving rise to Particular (iii).
19. We turn, then, to Mr Rook's argument on Particular (iii). At its centre is the submission that, not least since Quebec and Fidelitas were compendiously dealt with together within Particular (iii), the judge should have been at pains to distinguish their specific characteristics. Thus the judge failed to make any reference to the graphics put before the jury by the Crown which illustrated the respective workings of Quebec and Fidelitas. Nor did the judge refer to the fact that, in relation to Fidelitas, the greater part of the funds received remained within the structures controlled by the Bank of Nova Scotia; and this, it is said, with a very important point for the defence. Generally, Fidelitas was the more complex arrangement and the jury should have been given more assistance about it by the judge. In particular they should have received clear, separate directions as to what matters they should consider in deciding whether, and if so how, the law relating to "sham" applied to the case. Mr Rook emphasises the fact that it was not alleged that the trusts established in Fidelitas were themselves sham.
20. Mr Rook also submits that the judge should have reminded the jury about evidence given by clients of the schemes as being relevant to the intentions of the parties and therefore to the issue of dishonesty. In fact, broadly speaking, the judge only summarised client evidence in the context of the employment letters and side agreements (to which we will refer further).
21. As we have already stated, the judge's summing up lasted a little over 4 hours, after a long trial with a great deal of evidence and many interruptions. As Mr Rook acknowledged, brevity can be – indeed is generally – a virtue in a summing up. If we considered, however, that the judge had achieved brevity at the price of a failure properly and fairly to deal with the essentials of the case, we would be likely to conclude that the conviction is unsafe. But it seems to us, as Miss Glynn submitted, that Mr Rook's focus on Particular (iii) distorts the reality of the case. Particular (iii) reflected the fact that the funds (less fees) were simply being transferred to the client (Quebec) or to an off shore trust fund which the client controlled (Fidelitas) under the guise of the purchase of an annuity. The sham alleged by the Crown related to the annuity, not (in Fidelitas' case) the trusts. The appellant's case was that he thought the annuity arrangements were genuine. We cannot see that the jury could have failed to understand this issue, and we do not accept that any more specific or tailor-made directions about "sham" were required to expose it to them.
22. More deeply however, the real bite of the Crown case was not what happened "downstream", when the clients' money got into Quebec or Fidelitas. Much more critical was what happened "upstream". Thus the point at which pension funds were transferred from the original providers to Brokerage or Ashgaine using the device of purported contracts of employment was the point at which the tax loss arose. What happened thereafter only concerned the mechanics by which the money was handed over to, or placed under the control of, the clients in ways which in fact had nothing to do with the genuine provision of retirement benefits.
23. In those circumstances, it seems to us that the employment letters were really the crux, or at least a factor of overwhelming importance, in the Crown case. The appellant signed many of these letters. Rumball signed none of them. To demonstrate the force of this aspect of the evidence we will set out the employment letter relating to Mr Williamson, the first of the 96 clients. It is written on Brokerage headed notepaper, and dated 30 October 1997. It reads as follows:

" Further to our various discussions during the past months, we are now in a position to welcome you to The Brokerage Company Limited and to confirm your appointment as Hong Kong Procurement Manager, with effect from 1^st November 1997. Initially your appointment is for a three month probationary period; thereafter either party may terminate this agreement by giving the other party 30 days written notice.

As we have agreed, your responsibilities will include both sourcing of suitable samples for our European salesforce (nascent) to consider and test for sale and also to source per specific requests from ourselves.

You will be paid a basic salary of £4,000 per annum, payable in arrears, on the last working Friday of each calendar month. You will also receive commission of 5% of the sales value of goods sourced by you, payable monthly on the fourteenth of the following month. In addition you will receive a bonus of an additional 1.5% on cumulative sales of goods sourced by you in excess of £200,000 (your individual/team target) in any calendar year (pro rated).

We understand that you are in a position to make your first shipment of samples soon and we look forward to receiving these.

Please sign and return the attached copy of this letter signifying your agreement and acceptance of the terms and conditions set out herein."

The document is a brazen fiction from start to finish.

24. In this context it is useful also to notice part of the evidence given by a client by name Mr Richards. In another context Mr Rook complains that the judge has mis-reported his evidence, and we shall come to that. At this stage we refer to his cross-examination by Miss Glynn about his employment letter, which was dated 20 October 1998 and written on Ashgaine headed paper. On its face the letter confirmed his "appointment as part time property procurement manager with effect from 2 November 1998". The transcript of his evidence (page 18) shows that he was asked whether he had discussions during the previous month with anybody connected with Ashgaine concerning his employment with them. He replied "nobody at all". He stated that his then profession was chartered surveyor, and he was working full time. He said that neither he nor Ashgaine ever gave the 30 days notice which the letter stated was required for termination of the agreement. He was asked what was his understanding of the purpose of the letter and he answered, "I now know of course what the purpose was, but at that time, which is difficult – it was a means – a means of achieving the objective". He stated that he had never received any payment from the company, did not expect to do so, and had never undertaken any work for them.
25. As we have said, the appellant signed a number of these letters, including those directed to the first 3 clients in the list of 96. His answer to the obvious inference of sham was that he believed that all that was necessary was that the client should have a contract of employment and be capable of working. Given the gaping chasm between what is stated in these letters of employment and the reality – the letters were a grotesque pretence – we think it frankly impossible that an honest person could have entertained the belief which the appellant asserted. For this reason alone the appellant's conviction is manifestly safe.
26. More specifically, the weight of the evidence contained in the employment letter vindicates Miss Glynn's submission that what happened "downstream" was a matter of mechanics. The appellant has suffered no injustice arising out of the fact that the judge did not enter into such details of the differences between Quebec and Fidelitas as Mr Rook says he should have done. But it is our duty to deal with some of the specifics of Mr Rook's arguments. His submission that in relation to Fidelitas the judge should have dealt with the details of the Bank of Nova Scotia offshore structures, in particular the fact that the bulk of the transferred funds remained within these structures, has no force: it was not the Crown's case that the structures themselves were sham, and so the judge was not obliged to deal with the details of the structures in order to guide the jury as to the application of the law relating to sham.
27. As regards the clients' evidence in relation to the issue of the intentions of the parties to the Quebec and Fidelitas transactions, the fact is that had the judge gone into the evidence concerning what the clients had to say about what they wanted out of the schemes, that would have assisted the Crown, not the appellant. Mr Rook suggested, for example, that Mr Richards' evidence was that he in truth desired to obtain an annuity, albeit of a more flexible "European" type; and he referred to passages in Mr Richards' evidence (transcript pages 47 – 49) in which he accepted that he was "happy to purchase an EU annuity".
28. The judge might, no doubt, have reminded the jury of this evidence; had he done so, in order to be even-handed he would no doubt also have reminded them of Mr Richards' evidence in re-examination (page 70). Asked whether he understood that he was "requesting and authorising the purchase of an EU annuity", he answered "that was never my intention".
29. In short, the appellant would not have been assisted by a survey from the judge of the clients' evidence in the context of the intention of the parties to the relevant transactions. He is not prejudiced by the judge's exiguous treatment of the distinctions between Quebec and Fidelitas. We have already indicated that the sham alleged by the Crown in relation to Particular (iii) was the supposed annuity, as opposed to the distinct mechanics (including the trusts in the case of Fidelitas) by which the money was got into the clients' hands. This circumstance is graphically illustrated by the terms of the quotations which were deployed in both schemes. We have in the papers an example of a Quebec quotation and a Fidelitas quotation. They are addressed to Brokerage or Ashgaine. Each starts with the sentence "Further to your enquiry, please find below a quotation for a retail price index linked annuity from a provider within the EU". There is then a column of headings on the left hand side of the page: "Purchaser Details", "Member", "Member DOB", "Date Benefit to Start", "Retirement Benefit", "Annual Increase", "Provider", "Premium" – exactly the same whether the Quotation is for Quebec or Fidelitas. Against each of these headings appropriate details are filled in: against "Provider" there appears either "the Quebec Insurance Co Ltd" or "Fedelitas Sparkassa". The closing sentences in each of the letters are identical. We should say that we have not seen all the quotations; in reply Mr Rook said that some used the term "indicative". But it seems quite plain that no distinction of any significance was made between Quebec and Fedelitas.
30. For all these reasons we have concluded that there is nothing in Mr Rook's argument about Particular (iii) and the judge's treatment of it that begins to call into question the safety of this conviction. These observations serve also to demonstrate that there is nothing in Mr Rook's third criticism (which we have set out in paragraph 15) relating to the Bank of Nova Scotia.
31. The next point taken by Mr Rook criticises the judge's treatment of the evidence of the clients. This is a different point from his assertion, in the context of Particular (iii), that the judge should have canvassed the evidence of the clients in the context of the intention of the parties to the relevant transactions. What is said here is that the judge referred only to some of the clients, and mixed up Quebec clients with Fidelitas clients; or he failed to state whether a particular client was one or the other.
32. The jury had a very clear schedule of all 96 clients, and we see no reason to doubt Miss Glynn's submission that they would have become extremely familiar with it. In any case, here too the mechanics of the Quebec and Fidelitas schemes, as opposed to the sham annuities purported to be created, were not what was critical to the case.
33. Mr Rook has a particular complaint in relation to the evidence of Mr Richards. The judge said (page 47, line 24ff):

" His evidence is important because he is a man who you may think went into the whole of this scheme with his eyes well and truly open. And he got cross when he thought things were being done, which, to use his expression, 'moved the goalposts'. You will want to look at the evidence that he gave and the documents that surrounded his particular transaction."

Mr Rook submits that this reference to "moving the goalposts" was grossly misleading. He said that Mr Richards used the expression in reference to himself: he had "moved the goalposts" because he no longer wanted the commercial loan that he had been offered (see Mr Richards' evidence page 60). But Mr Richards used the expression at another point in his evidence. The judge's reference is plainly to a passage in his evidence in chief (page 28, line 19). He had said that he was very annoyed because "an annuity had been purchased in my favour, which was quite contrary to what I wanted". He gave details; he thought "the goalposts had been moved". There is nothing in this point taken by Mr Rook.

34. We may turn to Mr Rook's fourth point, where it is said that the judge failed to give proper directions about the evidence relating to two important documents, "the Presentation Document" and the three Quebec "Side Agreements". The presentation document was created by a colleague of the appellant's co-defendant Mr Moore. It was found in the bedroom of Mr Rumball's partner's son. It contained statements such as: "Basically the loan is a ruse. They are giving you the money. They cannot be seen to be giving you your pension money, because that will make the whole scheme illegal". Mr Rook submits that there was no evidence that the appellant was at any relevant stage aware of this document. The judge dealt with the document only in the context of Moore's evidence. There is no direction to the jury that it was not even alleged by the Crown that the appellant had ever seen it.
35. We think it would have been better if the judge had indicated to the jury that there was nothing to show that the appellant had anything to do with the document. Its role in the case was as compelling evidence against Moore and Knight; who, as we have said, were acquitted. However there was never the least suggestion that the appellant had any role in the document's creation or knew anything about it, and there was simply no basis on which the jury might have used it against him. We do not consider that the safety of his conviction is undermined by the judge's failure to remind the jury of those wholly uncontentious facts.
36. The Side Agreements, three in number and relating to Quebec clients, confirmed that in those instances there was no intention of the parties that the loans should be repaid. Again, there was no evidence that the appellant knew anything about these documents, and the judge did not so remind the jury. In fact he said (Vol 1, page 59, line 24ff):

"He (the appellant) was asked about the side agreements in relation to Mr McKenzie and Mr Cresner, he said: 'they wanted those in order to get comfort'. He said that he did not have a lot to do with them."

Again, there was never any suggestion that the appellant had anything to do with these documents. More important, in this case, however, is the fact there was a welter of other evidence to show that the Quebec annuities were shams. The evidence is summarised in paragraph 36 of Miss Glynn's skeleton argument. We need not set it out. It is simply fanciful to suppose that the jury might have held the Side Agreements against the appellant as critical evidence to show his knowledge that these annuities were sham.

37. Mr Rook's last point was that the judge failed adequately to set out the appellant's defence as to each of the particulars. The judge reminded the jury of his case (Particular (i)(a)) that he did not know that at the relevant time the schemes were not approved by the Inland Revenue (Vol 1, pages 23, 28, 63-64, Vol 2, page 14). As regards (i)(b) the appellant's case was that he believed that the clients were entitled to be members of the Brokerage and Ashgaine scheme simply on account of the fact that they had contract of employment documents. We have already referred to this. The judge reminded the jury of it (Vol 1, page 47, 64-65). Mr Rook had a particular point to the effect that the judge should have reminded the jury about the ability of clients to set up their own "EPP". There is nothing in that. The judge fully set out the appellant's case about the employment letters. (Vol 1, page 46-47, 64-65). As regards Particular (iii) the judge told the jury that the appellant said he was not responsible for Quebec (Vol 1, page 59); he reminded them of his evidence as to the setting up of Fedelitas (Vol 1, page 66). Put shortly, the jury can have been in no doubt as to the appellant's case that to his knowledge he was involved in nothing that was other than genuine.
38. In our judgment this case illustrates the virtue of brevity in a summing-up. The judge has certainly left out a lot of detail. He has concentrated on the essentials of the case. He has done so fairly and clearly. There is not the slightest reason to suppose that this conviction is unsafe. The case against the appellant was overwhelming. The appeal is dismissed.