England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/05/2007

Lord Justice Maurice Kay :

The background

1. On 29 July 2005 in the Crown Court at Wood Green, after a trial lasting almost seven months, the present appellants, Sampson, Hurley and Watts, were convicted by majority verdicts of 9 to 1 of the following offences (our references are to the counts on the final trial indictment): Sampson was convicted on count 1 of conspiracy to steal and on count 2 of conspiracy to falsify documents made for an accounting purpose; Hurley was convicted on counts 1 and 3 of conspiracy to steal, on count 2 of conspiracy to falsify documents made for an accounting purpose and on counts 4 and 5 (in this case by unanimous verdicts) of acting as a director while an undischarged bankrupt; and Watts was convicted of the two offences of conspiracy to steal on counts 1 and 3 and of conspiracy to falsify documents made for an accounting purpose on count 2. Sampson and Watts were sentenced to total sentences of 30 months' imprisonment and Hurley was sentenced to 3 years' imprisonment, having received two additional sentences of 6 months' imprisonment for the bankruptcy offences to be served concurrently to each other but consecutive to the other sentences.
2. A co-accused, Salvatore Solazzo, was acquitted of the offence of conspiracy to falsify documents made for an accounting purpose. Other charges against him were left to lie on the file on the usual terms.
3. The three appellants now appeal against conviction by leave of the single judge. All the appellants have now been released on licence. Sampson and Watts also renew their applications to appeal against conviction on certain other grounds for which they were not given leave by the single judge; we will indicate below the grounds for which leave was granted and those for which application for leave is renewed.
4. The background to the case and to the prosecution is the Landfill Tax introduced by the Finance Act 1996, and administered under the Landfill Tax Regulations 1996. The tax was introduced as from 1 October 1996 and required those depositing waste at landfill sites to pay a levy based upon the weight and type of waste deposited. The aim of the tax was to discourage landfill deposits and to encourage more sustainable systems of waste management. A tax credit system was introduced at the same time enabling landfill operators to gain a rebate of (or credit against) tax by making payment (a "qualifying contribution") to an "approved body" under the Regulations, being a non-profit making body corporate or other entity, having objects designed to promote environmentally beneficial purposes. The approval of these entities (known in this case as "environmental bodies" or "EBs") and their objects was undertaken by a regulator, Environmental Trust Scheme Regulatory Body Limited, known as "Entrust".
5. The landfill operator was entitled to a rebate or credit to the extent of 90% of each qualifying contribution subject to the limitation that the operator could not claim credit of a total amount greater than 20% of his annual landfill tax liability. All funds received by EBs under the landfill credit scheme had to be spent on suitable environmentally beneficial projects. If not so spent, the credit would be disallowed and the landfill operator would become liable to pay the disallowed amount to HM Customs and Excise. The credit scheme required, therefore, a landfill operator itself to finance 10% of any qualifying contribution to EBs and there remained always a residual danger of the clawback of credits if it turned out that the sums contributed were not, in fact, applied for proper purposes. As a consequence of these latter features, the scheme was not initially popular with landfill operators.
6. In the course of the scheme, these disadvantages to the operators were moderated. HM Customs and Excise indicated that in practice they would not seek to claw back credits where the operator had taken reasonable precautions to ensure the use of their funds on approved projects, for example by making staged payments and securing representation on the board of any EB to which they made substantial contributions. HM Customs and Excise also sanctioned the practice whereby third parties could reimburse landfill operators for the 10% of the qualifying contributions that they would otherwise have to pay themselves.
7. The prosecution arose out of the application of the funds of an EB called Environmental Protection Initiatives Limited ("EPI"). EPI was acquired from registration agents on the instructions of Hurley in April 1998. Its registered office was at 13 Bond Street in Northwich, Cheshire, the residential address of one of the directors, Jayne Morgan; its telephone number was that of Hurley's home at another address in Northwich. EPI's bank statements were sent to Hurley's address; Mrs. Hurley was a signatory on the EPI bank mandate. Cheques on the EPI account had to be signed by one director of the company and by Mrs. Hurley. Hurley himself had been made bankrupt by an order of the Crewe County Court on 24 September 1996 and was therefore disqualified from acting as a director; he received his automatic statutory discharge from bankruptcy on 24 September 1999.
8. EPI took over the operation of the activities of a company called Global Wildlife Trust Limited ("GWT") of which Sampson had been a director. EPI became an "approved body" for the purposes of the Regulations in July 1998. Between July 1998 and September 1999, EPI received qualifying contributions from landfill operators totalling a little short of £2 million. It also received (quite properly) the transfer of some £347,000 of such contributions as successor to GWT. The directors of EPI were Jayne Morgan, Janet Quinn and Vincent Symonds. The Crown alleged that these directors were mere nominees of Watts and Hurley. The evidence was that, in comparison to the sums alleged to have been appropriated by these defendants from EPI, the directors of the company received an annual honorarium of a mere £500 each.
9. The principal arguments before us have been upon Counts 1, 2 and 3 of the trial indictment. Counts 4 and 5 were the bankruptcy offences charged against Hurley alone. It is convenient at this stage to summarise the Crown's case on the first three counts and the defences raised to those counts. We concentrate upon the main features of the Crown's allegations.
10. Count 1 was an allegation of conspiracy to steal contrary to Section 1(1) of the Criminal Law Act 1977. The particulars were that Sampson, Hurley and Watts between 21 April 1998 and 29 September 1999 conspired together to steal bank credit balances belonging to EPI. The allegation was essentially a simple one. The defendants, it was said, agreed that the credit balances in EPI's account (or part of them) derived from qualifying contributions from landfill operators, should be "appropriated" dishonestly for the benefit of the defendants. The case was that the defendants made arrangements for grants to be paid to grantees in return for half of the same amount being repaid, by more or less circuitous routes, to companies within the control of the defendants.
11. On the face of it, in the records of EPI, the grants were paid to benefit approved environmental projects, so satisfying the Regulations and the scrutiny of Entrust, but in return a sum equivalent to half the grant was to find its way back from the relevant project's controller into the hands of the defendants. When we say "in return", it is clear that some of the relevant payments to the defendants' companies were made in advance of the grant being made by EPI. Furthermore, some of the relevant payments were not made directly from the funds of the grant recipient. However, the Crown's case was that such payments were a pre-condition of the grant being paid by EPI whether the payment was actually made before or after the grant was made and from whatever source the payment came.
12. The Crown relied upon four project payments in which it was said this repayment scheme was operated. First, there was a grant of £50,000 from EPI to Warboys Parish Council for the refurbishment of a weir. Then there were three grants of £40,000, £60,000 and £40,000 to Harlow District Council for works relating to a pond at Nettleswell, a visitor centre and certain outdoor recreation facilities to be provided under the auspices of the Council ("the Harlow projects"). These grants were, said the Crown, coupled with "kickback" payments of £25,000 (in the case of the Warboys project) and £20,000, £30,000 and £20,000 (in the case of the Harlow projects) to Project Management Consultants Limited ("PMC"), a company of which Sampson was a director (or in one case to PMC and to another company with which the defendants had a close relationship, KGK Advertising Limited).
13. Further grants were offered to other potential grantees at Woburn Safari Park, Hartford Tennis and Bowls Club and Winsford Tennis Club involving similar arrangements. In these cases grants of £100,000, £30,000 and £100,000 were discussed; again payments of 50% of the prospective grants were envisaged. The prime mover in the two proposals to the tennis clubs (which operated in Cheshire) was Hurley, who lived at Northwich; he made the approaches to the responsible officers on EPI's behalf. In the case of the Woburn project letters were written by Watts and Sampson and an invoice from PMC for £50,000 was sent to Christopher Webster, Chief Executive of the Safari Park, for advisory services and a facility fee. The Crown alleged that the essence of the scheme was the same in all these cases. In the event, none of these proposed grants were taken up because the prospective grantees were unhappy about the proposed arrangements.
14. The defendants' case was that none of these transactions or proposed transactions was dishonest. They believed that they were complying fully with the Landfill Tax Regulations and the requirements of Entrust as to expenditure of the contributions received. Further, they said all the grants made were spent on the designated projects and any money received back from the grantees was paid out of the grantees' free funds which were distinct and separate from the grant money paid by EPI. The payments to the defendants' companies were separated in each case and did not amount to an appropriation of the grant money. It was also said that the payments were legitimate remuneration for facilitation and administration services and it was argued that, while the defendants might have been greedy in claiming such large sums, they were not dishonest. Some of the payments (in particular those made to KGK Advertising Limited) were said to have been for the purpose of providing 'sponsorship' of the 10% contributions otherwise payable by landfill operators, so as to prime future contributions.
15. The Crown's retort was that this was disingenuous. The grants would not have been made by EPI without the assurance of payment or repayment by the grantees of 50% of the amount received or to be received. The size of the grant was determined not by the genuine requirements of the projects but by the need to finance the repayment. The case against the defendants was that the apparent legality of the payment arrangements under the Landfill Tax Regulations was merely a screen that masked the dishonest taking of large amounts of EPI's funds to finance payments to the defendants themselves. The Crown argued that the present case was no different to that of a company director who draws a cheque on his company's account in favour of a supplier for £10,000 on the understanding that the sum (or part of it) will be paid back to him, in his private capacity, to be used for his own private purposes. In each case, the Crown said, there is a theft from the company.
16. Apart from the defence case of an absence of underlying dishonesty, Mr. Newman QC for Sampson (supported by Mr. Solley QC for Watts and Mr. Gozem QC for Hurley) submitted to the judge at the close of the Crown case that there was no case to answer on count 1. This was because the case made against the defendants did not support any "appropriation" of funds from EPI within the meaning of the Theft Act 1968. The single judge refused leave to appeal on that point, but a renewed application for leave on behalf of Sampson and Watts is before us and we shall return to it in due course.
17. Count 2 was an allegation (made against all four of the accused including Solazzo, an accountant in private practice) of conspiracy to falsify documents made for an accounting purpose. The invoices concerned were addressed to Paradise Wildlife Park Limited ("PWP"), a company of which Sampson was a director, at premises of the same name at Broxbourne in Hertfordshire. They were ten in number [copies at pp. 326 to 335 of bundle 3 before us] and were dated from 29 April 1999 to 7 July 1999, amounting to £88,000. The invoices, together with an important schedule, called by the reference number "E5/208", were found at the offices of Solazzo, who was the accountant engaged by PWP. The Crown alleged that the schedule must have been drawn up by a conspirator and was, in effect, a blueprint of a scheme to extract £200,000 dishonestly from EPI. It was Sampson's case that the schedule was prepared by his father who helped to run the wildlife park; he was not called to give evidence.
18. The Crown alleged that the invoices were designed to be a cover for a proposed dishonest repayment or "kickback" in relation to a £400,000 grant made by EPI, in respect of a project in which Hertfordshire County Council ("HCC") was interested called "the Environmental Centre for Excellence" at Paradise Wildlife Park. As a precursor to this scheme, the Crown alleged, a sum of £400,000 had been paid on 3 June 1999 by EPI to an entity called Environmental Education Agency, also based at Paradise Wildlife Park at Broxbourne, for eventual onward payment on to HCC and thence (as to £380,000) back to PWP. The invoices and schedule E5/208, it was alleged, appeared to evidence a plan to fund a payment on of £200,000 from PWP to the defendants' companies. Of this sum £100,000 was to be paid (by stage payments) to PMC (of which Sampson was a director) and £100,000 was to be divided between Glevum Management Limited ("Glevum") (Watts' company), Champions Management Limited ("Champions") (Hurley's company) and Trico Enterprises Limited (of which Watts again was a director and in which all three defendants were said to be interested).
19. The Crown's case was that the schedule demonstrated a similar scheme to the transactions that were the subject of count 1 and that the invoices, the subject of count 2, were merely a device to hide the fact that £88,000 of the intended kickback was being paid ostensibly for services that had never been rendered to PWP, the supposed recipient of the services and addressee of the invoices. The defence case was that the invoices truly represented services rendered to PWP by the companies apparently rendering them.
20. It was further submitted to the judge at the close of the Crown case that the invoices were not "made for an accounting purpose" within the meaning of Section 17 of the Theft Act 1968. Accordingly, it was argued there was no conspiracy to commit the offence alleged. That submission is advanced to us again, as part of a renewed application for leave to appeal, and we shall return to it below. A further issue arises on this appeal as to the adequacy or otherwise of the judge's legal direction as to the status in evidence of the E5/208 document. Again, we shall return to this hereafter.
21. Count 3 was a charge against Hurley and Watts alone. Again, this was a charge of conspiracy to steal from EPI. [The underlying documents are to be found at pages 5 to 18B of bundle 4 before us.] The sums involved in this count were two payments, each of £177,766.67 + VAT (totalling £208,875.84), claimed by Champions and Glevum respectively from EPI. The claims were made by invoices dated 28 April and 4 May 1999. On 5 May 1999 cheques were drawn on EPI's account for those sums: they were signed by Mrs. Hurley and Jayne Morgan. These cheques were duly paid by EPI's bank to the payees. The paid cheque for Champions was before the jury; the one paid to Glevum was not available but there was no dispute that it had been paid into that company's bank account.
22. The sums were ostensibly paid under two identical written agreements, each dated 20 June 1998, between EPI on the one hand and, respectively, Glevum and Champions on the other. Under those agreements EPI agreed to pay to each company 10% of all contributions received by it pursuant to the Landfill Tax credit scheme. The payments were to be in respect of "consultancy services" to EPI.
23. The Crown alleged in respect of these agreements that they were merely devices whereby Watts and Hurley could extract cash from EPI; in signing them the nominee director merely complied with instructions. It was alleged that, at the time EPI was applying for approved status, representations had been made to Entrust that the running costs of EPI would be 10% at most, whereas these agreements on their face permitted the deduction of 20% of total contributions before any other outgoings were considered. Further, the Crown alleged that the agreements had been backdated to June 1998, having been created at some time after January 1999. (This allegation was based in part upon the evidence of a computer expert to the effect that the two written agreements had been derived from an earlier draft agreement dated January 1999; the January 1999 document was in effect the computerised "parent" of the two agreements that were subsequently amended from it, printed off and executed.) In addition, the minutes of an EPI directors' meeting dated 27 June 1998 recording the making of the agreements showed Hurley as being present, whereas it was admitted that he had been in the United States between 18 June and 30 June 1998. The defendants admitted that the minutes had been created after the meeting but contended that they genuinely represented what had occurred so far as the agreements were concerned.
24. The Crown's contention was that the agreements were convenient devices under which Watts and Hurley were able to obtain for themselves the benefit of a sizeable proportion of sums paid to EPI by a group of companies called the Haul Waste Group. In late 1998 this group paid £1,269,200 to EPI. This was the largest payment made to EPI by any landfill operator. It had been envisaged by Mr. Woodland, Haul Waste's finance director who gave evidence, that the funds would be held by EPI pending identification of suitable environmental projects on which they could be spent. He wanted a separate bank account set up to hold his company's contributions pending allocation to suitable projects. A Haul Waste nominee [would sit on the EPI board and] would be a necessary signatory on the separate account. Haul Waste were told by EPI that administration costs would be in the region of 1%. The special account for receipt of the Haul Waste contributions was never set up and Haul Waste's money was simply paid into EPI's general funds. The Crown called the agreements the "key to the safe" whereby Watts and Hurley were enabled to provide some cover for further appropriations of EPI funds for their own benefit. Watts and Hurley contended that the agreements, and the payments made under them to Glevum and Champions, properly represented fees to which they were entitled for work to be done and thereafter done for EPI. The payments were not, therefore, appropriated dishonestly from EPI.
25. The Crown relied upon other evidence both written and oral which it is not necessary to set out. We have set out above sufficient background for the points arising on the present appeals to be understood.

Alleged failure of the judge to direct the jury to acquit on count 1: renewed application for leave

26. The particulars of the offence of conspiracy to steal, charged in count 1 of the indictment, were that the defendants

"conspired together to steal bank credit balances belonging to [EPI]"

27. Essentially, the allegation was that EPI had credit balances in its bank account, mainly as a result of payments from landfill operators, and Sampson, Hurley and Watts were agreed upon a dishonest scheme whereby a substantial part of EPI's assets would be diverted to their personal benefits, through companies which they controlled. In particular, this would be achieved by paying the grantees twice as much as they would ultimately enjoy, so that the grantees would remit the other half by way of "kickback". The case for the Crown was that this method involved theft from EPI's credit balances at the bank.
28. The point is taken, particularly on behalf of Sampson, that, even if there was a dishonest scheme, it did not involve the theft of credit balances. At the trial, a great deal of time was taken up by defence counsel seeking to establish how the money which eventually ended up in the accounts of the defendants' companies (PMC, Glevum, Champions and Trico) was not part of the same money that had been paid out of EPI's account by cheques to grantees. We here use the word "money" in a convenient if not technically correct sense. Accordingly, submits Mr Newman QC with tenacity, whatever any ill-gotten gains were, they were not stolen from EPI's bank account.
29. Notwithstanding Mr Newman's enthusiasm for this point, both at the trial and before this court, we are entirely satisfied that it is misconceived. By ensuring that grantees were paid more than the grants, so that they would remit the balance to the defendants' companies, the defendants were appropriating bank credit balances belonging to EPI. In resisting Mr Newman's submission of no case to answer on this point, Mr Pavry commended to the judge the summing up of the trial judge in Wille (1988) 86 Cr App R 296 to the effect that if a person draws a cheque on an account which he has no authority to draw, the act of drawing the cheque and issuing it constitutes an appropriation of the debt owed by the bank to the account holder (see also, Archbold, 2007 edition, paragraphs 21-46, for discussion of the subsequent approach to this analysis). This was effectively the basis upon which the judge left the element of theft to the jury on count 1 in the present case. In our judgment, he was right so to do. Nothing turns on the fact that the alleged conspirators were not themselves directors of EPI or signatories on the bank mandate. If the jury were to be satisfied that the directors and signatories danced to the tune of some or all of them, that would be sufficient. Nor would it matter that EPI may be said in one sense to have consented to the issuing of the cheques. That line of defence does not now arise in these circumstances: see Gomez [1993] AC 442 and, in particular, Lord Browne-Wilkinson (at p.496) in relation to theft from companies.
30. In the present case, the single judge refused leave to appeal on these points. So do we.

Alleged failure of the judge to direct the jury to acquit on count 2: renewed application for leave

31. Count 2 in the indictment was pleaded as a conspiracy to falsify documents made for an accounting purpose. The particulars of offence alleged that Sampson, Hurley, Watts and Solazzo had conspired together, with a view to gain for themselves or another, to falsify documents "made for an accounting purpose", namely invoices addressed to PWP which were misleading, false or deceptive in a material particular in that they claimed indebtedness for goods or services which had not been provided. Mr Newman submits that the invoices were not "made for an accounting purpose".
32. Section 17(1)(a) defines the offence of false accounting by reference to, among other things, the falsification of "any account or any record or document made or required for any accounting purpose". Mr Newman seeks to rely on the fact that the particulars of offence were in the form of a document "made" rather than "required" for an accounting purpose. In simple terms, his submission is that, whereas the invoices may ultimately have been required for an accounting purpose, they were made not for an accounting purpose but so as to obtain payment by PWP. When the trial judge ruled on the submission of no case to answer on count 2 he said:

"[PWP], being a limited company, would be required to keep proper accounting records under section 221 of The Companies Act 1984. The prosecution say the invoices were therefore necessary to explain away a dishonest payment. The whole purpose, therefore, of the invoices was an accounting purpose. That is why the Crown say they were made."

33. It is common ground that the language of section 17(1) – "made or required" – indicates that a distinction is to be drawn between documents made specifically for accounting purposes and those made for some other purpose but required for accounting purposes: see Reference by the Attorney General under section 36 of the Criminal Justice Act 1972 (No.1 of 1980) (1981) 72 Cr App Rep 60. In the normal course of business, Mr Newman's submission would be correct. However, the case for the Crown was that this was not a normal course of business. PWP, of which Sampson was a director, was being deployed as an essential element in the fraud. In these circumstances, we consider that the conclusion and approach of the trial judge was correct. It is obvious that, if the fraud were to succeed, it would need to be covered in the accounts of the respective companies. Thus, the invoices were not "made" to induce a genuine debtor to pay a genuine creditor but to satisfy any concern on the part of auditors or tax authorities at a later date. Whilst it may have been possible or better to charge false accounting on the basis that the invoices were "required" rather than "made" for an accounting purpose, we are satisfied that either formulation was appropriate in law.
34. Mr Newman makes a further submission to the effect that the question whether the invoices were made for an accounting purpose should not have been left to the devices of the jury without more evidence, expert or otherwise, to explain the accounting purpose. Whilst we accept that there may be cases where this is necessary (see Sundhers [1998] Crim LR 497 CA), we do not consider that the jury had insufficient evidence to deal with the question whether the invoices were genuine or false in this case.
35. We refuse leave on these points.

Admissibility of the schedule at E5/208 and alleged inadequacy of judge's direction in relation thereto: appeal, leave having been granted

36. E5/208 was found at the office of the accountant Solazzo, together with the invoices which were the basis of count 2. It took the form of a schedule, brought into existence by means of a typewriter or a computer. It no doubt played an important part in the case. The Crown described it as a blueprint of a scheme to extract £200,000 from EPI and contended that it must have been produced by a party to the conspiracy, probably Sampson. He denied authorship of it and said that his father had created it. The father was not a witness at the trial. In the course of the trial there was a dispute as to the admissibility of the document. The judge ruled in favour of the prosecution and the document was admitted. In his summing up, the judge gave the jury the following direction:

"You must consider whether this document is written in furtherance of a conspiracy. If it is not written in furtherance of a conspiracy, then you will not be able to use the schedules as evidence against the defendants, because we cannot attribute authorship to them. If it is in furtherance of a conspiracy, then it would be evidence to be considered in all cases, but that is a decision which you will have to make."

37. The point made on behalf of the appellants is that the evidence did not establish the identity of the author or that it was inevitably the work of a conspirator or, if it was, which one. There was no evidence that it was produced by Watts or Hurley, and, although Sampson asserted that it had been produced by his father, there was no other evidence linking Sampson himself to the document. In these circumstances, it is submitted that the judge's direction was inadequate.
38. The appellants rely on the case of Keen and others (unreported, 5 December 1999), in which Roch LJ, giving the judgment of the court, said:

"The acts and statements of one alleged conspirator are admissible as evidence against his alleged co-conspirators if they are acts done or statements made in furtherance of the conspiracy, and if there is other evidence independent of those acts or statements that the alleged co-conspirators were involved in the conspiracy."

39. That statement was supported by a line of authority going back to Blake and Tye (1844) 6 QB 126.
40. We are unimpressed by the submission that the document was wholly inadmissible because its exact authorship had not been established. The jury were plainly entitled to conclude as a matter of common sense that the document could only have been brought into existence by or at the behest of at least one of Sampson, Hurley and Watts. But what of the second stage referred to in Keen? If, for example, the jury were satisfied that the document was the work of Sampson, or of his father acting on his behalf, its admissibility against Sampson would be beyond dispute, but that would not establish, without more, its admissibility against Hurley and Watts. The jury could only go that far if they were satisfied that other independent evidence established the participation of Hurley and Watts in a conspiracy. In our judgment, the direction given by the judge was deficient in not explaining that to the jury. However, if that had been the only error in the summing up, it would not have led us to conclude that any of the convictions was unsafe because there was, in our view, cogent independent evidence of participation in each case.

Discharge of juror: appeal, leave having been granted

41. The jury (by then reduced to eleven) retired to consider their verdicts on Thursday 7 July. That was the day of the London bombings and, within an hour, they were sent home for the day. They were in retirement for two hours on 8 July before the trial was adjourned for the weekend. In the week commencing 11 July, they had full days in retirement on Monday and Tuesday but the court did not sit on Wednesday or Thursday because the judge was not available. The jury retired for another full day on the Friday. In the week commencing 18 July, they were in retirement for the whole day on Monday but did not convene again that week. One of their members was ill on Tuesday, Wednesday and Thursday and another had a funeral to attend on Friday. On Monday 25 July an application was made on behalf of Watts, supported by Sampson, to discharge the whole jury as a result of the interruptions but the judge rejected it. The jury returned again that day. On 26 July, the judge gave a majority direction. The jury continued in retirement that day and the following day.
42. In the afternoon of 27 July, the jury sent the judge a note which read as follows:

"We find ourselves at a crucial point in our deliberations. Unfortunately one of our members is extremely unwell today to the point he has been unable to participate fully in the deliberations (due to the fact he has been in the bathroom). We are extremely mindful of the time and cost of this court case and the anxieties of the defendants. We are therefore keen not to build any further delays into this process. We request that the issue of the member's health be addressed in a more timely manner. This delay is having a disruptive influence on our deliberations especially as the majority were confident that decisions could have been reached this week."

43. The judge did not disclose the full contents of the note to counsel. He did inform them that the juror was ill and that he was going to be examined by a doctor. The following day the juror did not attend court. However, as a result of enquiries, the judge told counsel that the juror had been to see his general practitioner the previous evening and that a member of the court staff had spoken to the general practitioner that morning. He further disclosed that the general practitioner had referred to a stress-related illness and that the juror had referred to having been up for half the night with stomach cramps. The doctor had not signed a medical certificate but he said that he would have certificated the juror for a couple of days if he had asked. The judge then said to counsel:

"It is quite clear that the strain of the trial is a major contributory factor, if not the factor for the juror. I don't want to go into all the details but I know a little bit about him … It is clear from what the doctor has said and been told by the patient that this problem is not going to go away until the case is finished. That may be a very short time but it is nonetheless a time that has to be got through. I therefore have to consider what to do about it. My concern is that if he is away for a couple of days, he might come back for a day or he might simply say he is still too unwell and get certificated again for another couple of days."

44. The judge then invited submissions from counsel about the possible discharge of the juror, adding that he was very reluctant to discharge him but

"I have in mind the length of time that this case has lasted; the length of time that the jury have been in retirement; the strain that is being placed particularly on the defendants who are awaiting verdicts … it seems to me we may be near the end of the case and to postpone it indefinitely repeatedly is unfair and unfair on them in particular."

45. The judge also told counsel that, following the visit of a doctor to the court on the previous afternoon, the juror had been able to participate in resumed deliberations with his colleagues for the remainder of that day. The judge added, no doubt thinking of the report from the general practitioner, that

"The problem is coming here and deliberating … that is what is making him ill."

46. After taking instructions, counsel for all three defendants opposed the discharge of the juror, suggesting that the judge should await events at least over the weekend. At one point in his submissions, counsel for Watts referred to not having the full picture on which to make all the submissions that he would like to make. On behalf of the Crown, Mr Pavry contended for the discharge of the juror, referring to the number of interruptions that had already occurred. The judge then decided to discharge the juror. He said:

"I have to consider a number of things: first of all, whether there is a possibility that this condition will be alleviated by the passage of time. The GP who saw him yesterday said that he would have given him a certificate for a couple of days. Since today is Thursday, it means, as far as I am concerned, that he might be able to return on Monday. But because of the history that I have not communicated to counsel but been told about in relation to this particular juror, I have come to the conclusion that this problem will not go away until the case is over. The juror has effectively said that to both doctors. Although he may be doing his best – and no doubt has been doing his best – to sit on the jury and to join in, it seems to me that it is the fact that he is deliberating on the verdicts that are about to be delivered, perhaps that it is, that is causing him illness. Thus the problem won't go away if he has two days off, it will still be there when he returns. It will be there every day he returns to this court. Of course that is only my diagnosis and it is my diagnosis from a distance, but it is one that is agreed with by two doctors who have seen him and who have been able to communicate that situation to this court. As I say, there is a little more information than that which I am not prepared to divulge because it is personal to the patient. However, that is the gist of it, or most of it … If I thought that there was a good prospect that it would not happen, that the juror would be well by Monday, then I would bear that in mind. I am afraid I do not have any such confidence. I bear in mind the timetable of the case. … My conclusion is that this problem will not go away if this case is adjourned for two days or four days or any number of days … This is a matter for my discretion … I have to balance the interests of carrying on the trial against delaying it for a period which at this time is uncertain. It seems to me that if we did delay the case by two days we would be no further advanced at the beginning of next week. Under those circumstances, rather than postpone a decision which is a hard one to make, I am going to make it now. The decision is that the juror should be discharged."

47. The remaining ten jurors proceeded to resume their deliberations and in the late morning of Friday 29 July, they delivered their majority verdicts on Counts 1 to 3 and unanimous verdicts on Counts 4 and 5.
48. Counsel for the appellants formulated grounds of appeal by reference to those events. One of their complaints was as to the non-disclosure of the note. In advance of the appeal hearing, we caused the note to be disclosed to them, along with two other documents. The first is a note made by a court official on 28 July 2005. She recorded how she had contacted the juror by telephone upon his non-arrival at court on that morning and was given his account of his visit to his general practitioner. The juror gave details of the general practitioner and authorised the court official to speak to the doctor. She did so and was told of "a stress-related illness – stomach cramps – loose bowel movement". A relaxant had been prescribed. The juror had told the doctor that he was "quite stressed by the court case". The juror had indicated that he would feel better "once the case was over". The court official relayed that information to the judge. Later on, the same court official contacted the juror again to inform him that the judge had discharged him.
49. The second document is not a contemporaneous document but is in the form of a letter written to this court by the jury manager in response to a request for information. The letter, dated 16 January 2007, is in the form of a report of the jury manager's investigation. It states:

"The juror was in severe discomfort in the Jury Retiring Room. This was communicated to the court usher by the other jurors … [The judge] then requested that a doctor be called to attend and examine the juror to ascertain what the problem was. After the doctor had examined the juror, he spoke to the judge in his chambers. The doctor stated that his diagnosis was that stress was responsible for causing the juror's illness and that he could find no physical cause. The doctor felt that the symptoms the juror was feeling would not cease until the stress of returning verdicts on the trial was over. At this time the juror was lying on a table in the Jury Retiring Room in a foetal position moving only to go to the lavatory. The situation was beginning to distress the other jurors and giving them concern."

50. Sight of these three documents has not assuaged counsel's concern. Although they put their cases in slightly different ways, their complaints amount to this. (1) The judge was wrong not to disclose the note. It did not contain the sort of information, such as current voting figures, which are confidential. (2) With the benefit of the note, counsel could have made better, more focused submissions in support of not discharging the juror. (3) In any event the judge was wrong to discharge him. He should at least have waited until the following Monday, 1 August, to see if the juror had recovered sufficiently to resume. (4) The judge's handling of the problem amounted to a material irregularity.
51. We accept the first of those submissions. There was nothing in the note to render its contents unsuitable for counsels' eyes. We do not consider that, fairly and properly construed, it conveyed the message that the views of the juror in question were proving to be a stumbling block to the completion of the jury's task. However, we are not persuaded by the second or third submissions. It is apparent from the transcript that counsel were able to put the arguments for delaying a decision until Monday and that the judge had them well in mind. He was in a very difficult position. A long, complex and expensive trial had been afflicted by a series of delays. We have itemised those which arose after the retirement of the jury and we shall refer to the earlier delays when considering the next proposed ground of appeal. On the information he had, the judge was right to be very concerned about the delays and interruptions. He had had to make a ruling on an application for the discharge of the whole jury on the basis of delays and interruptions four days earlier. The judge was entitled to take the view, on the basis of the information in his possession, that the juror in question was suffering from stress as a result of the trial and that, even if he were to return on the Monday, the problem might well recur. In view of the delays and interruptions that had already occurred, particularly since the retirement of the jury on 7 July, we do not consider that the judge was wrong to discharge the juror so that the remaining ten jurors could resume and complete their task without foreseeable risk of further interruption. The judge's error in failing to disclose the note did not render the trial unfair, nor does it impact on the safety of the convictions.

Unfair trial: delays and interruptions: renewed application for leave

52. Mr Solley sought to take an additional point in relation to the trial and the jury. Although he did not characterise the refusal of the judge to discharge the entire jury on 26 July (see previous paragraph) as erroneous at the time, he submitted that, now that this court has the benefit of hindsight and can look back at the development of the trial as a whole, particularly from the point when Watts began to give evidence on 17 May, it can be seen that its flow and coherence were so afflicted by unforeseen delays and interruptions that it became an unfair trial. Indeed, he invited us to view it in the context of the full period from the initial arrests and interviews in 1999 through to the verdicts of the jury.
53. We acknowledge that there were unusual and regrettable features about the period from arrest until trial. The interviews in 1999 did not go into great detail and, in particular, did not take the form of questioning on many of the important documents. When the investigation team did not seek to interview Watts again, he requested a further interview but none took place. Like Mr Solley, we are surprised that, in an investigation carried out under the aegis of the Serious Fraud Office, no attempt was made to interview Watts or the others again, in greater detail, and by reference to the more important documents. It is submitted, particularly on behalf of Watts, that there was consequential prejudice to the defence because explanations given from the witness box in 2005 might have been more cogent if they had been foreshadowed in interviews years before when the memory would have been fresher. It was suggested not that this aspect of the history in itself made a fair trial impossible in 2005, but that it almost did. We should add that the six year delay from initial arrest to trial – "longer than the Second World War", said Mr Solley in a rhetorical flourish – was compounded when, for about a year, it proved impossible to find a suitable court and a judge. We express concern about that but say no more because those responsible for the running of the system have not had an opportunity for explanation.
54. Once the court and the judge were identified, preparatory hearings consumed a considerable amount of time but not to an unusual extent. The trial began in January 2005. The court sat for "Maxwell hours", as they have become known. The duration of the trial was attributable in part to the way in which, typically, prosecution and defence approached their tasks. Time was taken over aspects of the case, the importance of which diminished as the trial developed. The defence tried to move the evidence into perceived comfort zones. Plainly a great deal of time was taken up in meeting a case that was not being advanced: see, for example, the consideration of the law of theft, above. None of this comes as any surprise to anyone with experience of this sort of criminal litigation. Surprise or not, however, advocates would do well to take stock carefully before embarking on costly and time consuming points of little, if any, relevance to the main issue. Such points do not serve either the court or the parties well. The longer the trial lasts, the more vulnerable it is to further delay arising from extraneous factors. That is why it is incumbent upon trial judges to keep control of the proceedings.
55. Mr Solley's submissions then focused on the period which commenced when Watts entered the witness box on 17 May. He did not complete his evidence until 14 June. During the intervening four weeks, the court did not sit on 20 May because a juror was ill; on 24, 25, 26 or 27 May for the same reason; on 30 or 31 May, which were public holidays; on 3 June, when a juror attended a funeral; or on 8 June when a juror (not the same one as had been ill in May) was unwell. After all the evidence and the closing speeches (which occupied seven days), the court did not sit on 29 and 30 June or 1 July, during which time the judge was preparing his summing up. We have already referred to the time lost during the jury's retirement.
56. All this led Mr Solley to submit that, if we now stand back and take a hard look at the trial and the years preceding it, it can be seen that it was not a fair trial and the verdicts of the jury are not safe for this reason. Whilst we do not shrink from saying that the pre-trial delays were inordinate and, in some respects, possibly difficult to excuse, we consider that it was still possible for a fair trial to commence in January 2005. Moreover, while the trial does seem to have been conspicuously accident-prone between 17 May and 29 July, we do not believe that it reached a stage at which the delays, interruptions or other vicissitudes rendered it unfair to Watts or the others. Of course, the fact that the trial was concerned with events that had taken place almost ten years earlier obliged the judge to deal with the implications of delay in his summing up. He did so at two points – the first at an early stage, the second when summarising the evidence of those defendants who gave evidence. At the beginning of his summing up of Watts' evidence, he also made specific reference to the interruptions and resulting "ordeal" in relation to his evidence. Mr Solley criticised these paragraphs on the basis that they were largely "standard form" and insufficiently tailored to the demands of the case. We reject these criticisms. In our view, notwithstanding all the delays and the problems which arose, the point was not reached at which the trial became inherently unfair such that the difficulties could not be satisfactorily overcome by an appropriate summing up. We refuse leave on this point.

The nature and quality of the summing up: appeal, leave having been granted

57. We now turn to what is undoubtedly the main ground of appeal. It is in the form of a submission that the summing up was simply inadequate to meet the needs of the case. The transcript of the summing up is over 300 pages long. It began on the morning of 4 July 2005 (but had to be stopped early that day because of a power cut), continued over the whole of 5 and 6 July, with the jury going out at 9.52 on 7 July. We can describe the structure of the summing up in this way. The first 44 pages are in the form of legal directions. The remainder is in the form of a selective tour through the evidence. The judge dealt with the evidence adduced by the prosecution by proceeding, witness by witness, in the order in which they had given their evidence. He then took a similar approach with defence evidence. At appropriate points, he added further legal directions, for example as to lies in relation to Sampson and as to any inference in relation to the failure of Hurley to give evidence. In summary, the complaints about the summing up as advanced by counsel are that: (1) a large amount of material which was important to the case for the defendants was not referred to; (2) their defences were not properly left to the jury (a point particularly relied on by Mr Gozem on behalf of Hurley, in view of the fact that Hurley had not given evidence); and (3) in a long and complex case, no attempt was made to assist the jury by identifying issues and relating the evidence for and against individual defendants in relation to the identified issues. Thus, it is said, if one simply goes on, day after day, regurgitating evidence in the order in which it had been given months before, the jury are not assisted to understand just how each witness or piece of evidence relates to which particular count in the indictment or its significance for or against each defendant.
58. Although counsel for the appellants were all deeply critical of the summing up, they did not stand alone. Mr Pavry began his submissions on behalf of the Crown by referring to "forceful and valid criticisms of the summing up" and later described it as "tedious and turgid". He also agreed, as he was bound to, that the summing up was devoid of any meaningful attempt to draw together the various strands of the case. The essence of his submission was that, notwithstanding the deficiencies of the summing up, the case was not as complicated as is suggested on behalf of the appellants, that the jury would have been able to understand it and that, in any event, the verdicts are safe and founded on overwhelming evidence.
59. Perhaps the most frequently quoted statement of the law in recent times is that of Henry LJ in Amado-Taylor [2002] Crim App R 189. The circumstances were highly unusual. A rape trial had taken seven days, including five days of evidence but, after giving proper legal directions, the judge omitted to summarise the highly contentious evidence at all. He simply told the jury that if they were unable or agree about it, they should tell the jury bailiff, at which point he would invite them back into the court and refresh their memory. In allowing the appeal and ordering a retrial, Henry LJ said (at pages 192 to 193):

"Of course, generally speaking, the longer a trial lasts, the greater will be a jury's need for assistance from the judge relating to the evidence. Many jurors do not have the experience, ability or opportunity of a judge to note significant evidence and to cross-reference evidence from different sources which relates to the same issue. Accordingly, in a trial lasting several days or more, it is generally of assistance to the jury if the judge summarises those factual issues which are not disputed, and, where there is a significant dispute as to material facts, identifies succinctly those pieces of evidence which are in conflict. By so doing, the judge can focus the jury's attention on the factual issues which they must resolve. It is never appropriate, however, for a summing up to be a mere rehearsal of the evidence."

60. Among the other authorities referred to on this appeal we refer to R v Jones (Peter) [1987] Crim LR 701, in which the trial judge in a murder case had given proper directions in law, but had not reminded the jury of the relevant evidence in the context of the defence of provocation. Watkins LJ said:

"Although the judge reminded the jury of what the appellant did in response to the provocation he said almost nothing about the gravity of the provocation the appellant had received. The judge did not remind the jury of the medical evidence about the appellant's injuries. It was for the jury, when deciding whether the provocation would have caused a reasonable person to lose his self control and act as the appellant did, to measure the appellant's response against the alleged provocation. However, the summing up did not properly equip the jury to discharge that exercise. In a complicated and lengthy case (such as the present one) it was incumbent on the judge to deal with the salient points which arose on the evidence … the judge should have put the essential thrust of the defence. The summing up was therefore materially deficient."

61. We find the notion that a summing up should "properly equip the jury to discharge" their task to be a helpful one.
62. It is trite law that a judge is under no obligation to rehearse all the evidence or all the arguments. Nor is the sufficiency of a summing up to be measured by its length. As Rose LJ said in Farr (The Times, 10 December 1998), "Brevity in summing up … is a virtue not a vice". It seems to us that an ideal summing up in the present case need not have been longer and may well have been shorter than the 300-odd pages of transcript which we have described. With all this in mind, it is necessary to say a little more about what the judge did and did not do.
63. In the course of his directions on the law, the judge from time to time referred in general terms to the defence case. For example, when dealing with dishonesty, he said:

"Now the defendants have asserted in various ways, and I summarise only, that they did nothing wrong and were not dishonest."

He repeated that about three pages later. Also, in the course of the direction on dishonesty, he referred to the fact that Watts had stated in evidence that he was not in breach of the Landfill Tax Regulations. However, the judge added:

"You have not had to decide that issue, nor will you have to decide that issue. … There is no charge on the indictment of contravening the Landfill Tax Regulations. You have to decide other issues, and in particular dishonesty. It is possible … for somebody to comply with the letter and indeed the letter of the law of the Landfill Tax Regulations but nonetheless be dishonest. … You can breach the Landfill Tax Regulations and be perfectly honest. So that does not help you about dishonesty, not of itself."

64. When directing the jury on the law of false accounting the judge said:

"The prosecution say those invoices are false and they are made up and they are made up to transfer or launder money to the defendants from PWP. They are a device to enable that money to be transferred without appearing to be dishonest … The defence say that these are genuine invoices for genuine work that was done."

65. As regards count 3, the judge told that jury that the allegation related to the 10% that Glevum and Champions charged for consultancy services. He said:

"The prosecution allegation is in relation to those consultancy agreements, which the prosecution say were a device to extract money from EPI. The prosecution say the contracts were created well after the time when they were supposed to have come into existence. You remember this is one area where backdating is alleged. They say the truth was kept quiet, for example from Haul Waste, who never knew of the 10% agreements and that that was a device used by Mr Hurley and Mr Watts to get the money from EPI into their own companies in a secretive and dishonest way. The defence say there was nothing illegal about the contracts, nothing significant about the dates on them. Work was done for which they were properly, albeit well paid. They say there is nothing dishonest and indeed nothing in breaches of the Landfill Tax Regulations. The defence say they thought they were entitled lawfully to do what they did. … There is no requirement to advertise or even tell a landfill operator about the 10% fees. On the other hand, the prosecution say, "Well, if it was honest, what was the need to keep it quiet?" So, members of the jury, there are the issues in relation to Count 3."

66. A little later but still within the context of his directions in law, the judge referred to the three conspiracy counts together in these terms:

"The defence say in relation to these allegations of conspiracy that there was no conspiracy on any of those three Counts. They say there was no theft on Count 1 or Count 3, no false documents on Count 2. They say there was no breach of the Landfill Tax Regulations. That goes, as I have explained yesterday, to the question of honesty. They say the work was done and paid for, and that also, of course, they say is honest. So there was nothing dishonest. Even if all that is wrong, if it may be that the defendants believed that they were not dishonest, then they would be entitled to be acquitted, but that is again the standard that you bring with you and apply to the facts of this case. You obviously look at what was in their minds at the time."

67. The judge then went back to count 1 and invited the jury to consider the following questions:

"First of all, was there an appropriation of bank credit balances belonging to EPI? So was there an appropriation of bank credit balances? Secondly, was it with intent to permanently deprive EPI? Thirdly, was it dishonest? If you are not sure of any of those questions, then you will acquit any defendant to whom you apply them. If you are sure of those three questions, if you answer them all, 'Yes we are sure', then you must go back to the next question: Was there an agreement to steal the bank credit balances of EPI? If you are not sure, then your verdict must be 'Not guilty'. If you are sure there was an agreement to steal, then you must ask yourself another question: Was the particular defendant whose case you are considering a party to that agreement?. If you are not sure about a particular defendant's involvement, then 'Not guilty'. If you are sure, 'Guilty'."

68. He then repeated those questions at the request of the jury. He added that the questions were essentially the same in relation to count 3. He then referred back to the false accounting conspiracy before proceeding to counts 4 and 5, the offences under the Insolvency Act alleged against Hurley.
69. In terms of assisting the jury with the matters they would have to decide and identifying the issues and how the case was put, that represents the totality of all the judge said. The last passage to which we have referred is on page 40 of the transcript. The remainder of the summing up took the form of the summary of the evidence in the manner to which we have referred. This is where the summing up began to deteriorate.
70. Dealing with the witnesses in the order in which they had given evidence, the judge began with witnesses from Warboys Parish Council, Vale Royal Borough Council, Harlow District Council, St Nicholas High School, Hartford, Woburn Safari Park and Hertfordshire County Council. At no point did the judge explain which count on the indictment these witnesses related to or how their evidence may have been significant. By itself, that may not be of great materiality because the jury may well have understood that, one way or another, they related to count 1 and had been called in the early stages for that reason. The judge then moved seamlessly to the evidence of Gillian Ancell, adding "I expect you will remember Gillian Ancell for a long time". She had been an employee of PWP. She gave colourful evidence about dealings with, in particular, Sampson and Watts. Her evidence included an account of a meeting in a car park which, on the face of it, involved a dishonest transaction about £10,000 in which Sampson and Watts were involved, as also (on her account) was Hurley, although he was not present. Her evidence was fiercely contested. At no point did the judge relate it to any particular count in the indictment. Having told the jury that it was for them to decide who to believe he passed to the next witness who was from the Hartford Tennis and Bowls Committee.
71. His evidence went to count 1 but the transaction he had discussed with Hurley had not come to fruition. The judge then went on to a witness from a Scottish company before proceeding to the evidence of the finance director of Haul Waste, followed by the evidence of another director of that company. As we understand it, the Haul Waste evidence was of particular significance in the context of count 3 because the case for the prosecution was that contributions from Haul Waste had substantially funded the payments out to the defendants' companies. However, once again, the judge did not make this clear. He next passed quickly over the evidence of a Scottish businessman which does not seem to have taken the case very much further before dealing with the evidence of a woman who had been a friend of Hurley and who became a director of Champions. She gave evidence that was very damaging to Hurley on the counts of the indictment relating to the Company Directors Disqualification Act and the judge said at one point:

"The prosecution rely on this in relation to Count 4."

72. He then referred to statements that had been read from a company formation agent through which Hurley had caused some of the relevant companies to be acquired and an official from Crewe County Court who gave formal evidence of the bankruptcy order which stood against Hurley from September 1996 until September 1999. The judge again related that specifically to counts 4 and 5. Immediately after that he said:

"How are you coping members of the jury? It is a bit monotonous when one person speaks all the time. I am very conscious of this. 'Terrible' Did you say. Well I am not surprised to hear it."

73. The next evidence summarised by the judge was that of a witness employed by Arthur Andersen, accountants, in 1999 and who had been instructed on behalf of Entrust. In the midst of summarising the evidence of that witness, the judge said:

"I am sorry. If it is too difficult to concentrate, then we will have a break."

74. A short break then ensued. The judge then resumed his summary of the evidence of the same witness, followed by the evidence of the central office manager from Entrust. The evidence of these two witnesses ranged over a number of matters concerning Entrust's dealings with the defendants but the judge did not expressly refer any part of the evidence of either of them to particular counts in the indictment.
75. There next followed summaries of the evidence of a chartered accountant who had audited the accounting records of EPI for the period ending 30 April 1999 but who had never met the defendants. Then, following a short break, the judge dealt with the evidence of the technical officer from East Hertfordshire District Council with whom Watts had had dealings but whose evidence did not relate to a particular count on the indictment. If anything, reference to it was included to assist Watts about whom the witness had spoken generously.
76. The judge next proceeded to deal with what we may call evidence of the investigation, including that of a chartered accountant employed by the Serious Fraud Office who had produced a set of graphics to assist with the presentation of the case. It seems that he was there to illustrate some of the transactions and the relationship between the entities between which they had taken place but, again, in dealing with the evidence the judge did not relate particular passages to particular counts in the indictment. For reasons to which we shall return, the judge then spent some time on the evidence of two police officers who had been prominent in the investigation and, in particular, had dealt with Sampson in interview. On the face of it, the evidence of Sampson's interviews was gravely damaging to him in that, effectively, he admitted the offences. The judge's summary of that evidence coming from those two witnesses ended at page 156 of the transcript which coincided with the end of the court sitting on Tuesday, 5 July. The next 140 pages deal with what the judge said on Wednesday, 6 July.
77. On that day the judge began by summarising the evidence of a computer expert whose evidence, if accepted, established that documents had been created on different dates from that which their eventual versions bore.
78. Having summarised the prosecution evidence in that way, the judge proceeded to deal with the defendants, beginning with the police interview of Hurley, who had not given evidence. He then summarised the evidence of Sampson and referred to his incriminating interviews. Sampson's evidence was that his admissions had been procured by threats or inducements. The judge also referred to character evidence called on behalf of Sampson. Finally he summarised the evidence of Watts, drawing attention to the unfortunate breaks in continuity during the lengthy period which Watts had spent in the witness box. He also referred to the character evidence adduced on behalf of Watts. Having then made brief reference to the case of Solazzo, who had not given evidence but who was of good character, the judge told the jury that he hoped to send them out early the next day, whereupon they were sent home.
79. At that point, Mr Newman raised a number of points about the summing up. Some of his points were technical and were resolved. However, he also made a courteous criticism of the summing up as a whole, anticipating this ground of appeal. He added:

"I submit that if a bystander were to come into the court and listen to your Honour's summing up on the prosecution witnesses, he would question what on earth the defence case was all about."

80. His complaint was about the omission to refer to numerous answers given in cross examination by various witnesses. He actually invited the judge to revisit the witnesses upon the resumption of the summing up the following day to give "a brief but nevertheless balanced summary of their answers in cross examination".
81. On behalf of Hurley, Mr Gozem QC pointed to the particular circumstances of his client, namely that he had not given evidence and that his interview, about which the judge had reminded the jury, had been very general. Mr Gozem's complaint was that the judge had not reminded the jury of how Hurley's case had been put in cross examination and in closing submissions. The judge responded:

"I am sorry. I did not glean the nature of Mr Hurley's defence from the speech that you made to the jury."

And a little later:

"Of course I listened to it carefully, but I do not see it as any part of my task to remind the jury of what they have been told by counsel in their speeches, except in small parts, and from time to time I did."

82. The judge added that he hoped that the issues were clear before the jury to which Mr Gozem responded that he was inviting the judge "to assist the jury by … identifying the issues". Counsel gave some examples.
83. Mr Solley then rose to foreshadow some of the criticisms that he now seeks to advance under this ground of appeal. He submitted that the summing up amounted to "an emasculation of Mr Watts' evidence".
84. On the morning of Thursday, 7 July the judge made one or two modest additions to the summing up but they were drops in the ocean when set against the breadth of criticism that had been advanced by counsel.
85. We now have to consider whether the summing up as a whole was so deficient as to impact on the safety of convictions. As we have said, many of the criticisms are not disputed by Mr Pavry. Some of the criticisms, we have to say, are unsupportable. Any proper summing up was bound to be selective and the fact that counsel can produce pages of references to evidence, said to be favourable to their clients, but which did not gain a place in the summing up, is neither here nor there. Indeed, some of the omitted matters about which complaint is made were, in our judgment, best omitted. We include in that observation the copious evidence which had been adduced to enable counsel to make the erroneous submission about appropriation on count 1 and the evidence which established that Entrust was a regulator beset with problems of its own. These had no relevance to the issues in the case. It is the duty of a trial judge to concentrate the minds of the jury on the more relevant parts of the evidence. If there were errors in this regard they were in allowing so much time to be taken up by peripheral evidence.
86. Having said that, however, there were also serious omissions from the summary of the evidence. For example, although EBs approved by Entrust had to be non-profit-making bodies, that does not mean that their directors, employees and outside consultants could not charge for their services at commercial rates. It is plain from the evidence that they generally did so, with the blessing of Entrust, and that consultancy arrangements were commonplace. One of the documents in a 300 page bundle put before the jury on behalf of Watts discloses that the Chief Executive of Entrust reported to a management committee meeting on 23 September 1999 that a reasonable rate for consultancy services could be anything between £200 and £1,000 per day. In our judgment, the judge ought to have disabused the jury of any notion that those running EBs could not benefit (directly or indirectly) substantially from the venture. Against that background, it would be for the jury to decide where honest remuneration gave way to fraud and avarice. We should add that the Watts jury bundle was not referred to at all in the summing up. Quite apart from the documents referable to the transactions under scrutiny, it contained other material of relevance to Watts' defence and was corroborative of his case that he was a highly qualified and experienced environmental scientist. Moreover, whilst we agree that compliance with the Landfill Tax Regulations is not a defence to conspiracy to steal, the case for the defence was that that compliance was an important element in relation to the issue of dishonesty. That has its limitations, particularly having regard to the totality of the evidence in this case, but it ought to have been explained more clearly to the jury.
87. It is when one turns to the case of Hurley that the approach of the judge can be seen to be most deficient. Heavy responsibility falls on a judge in relation to a defendant who has not given evidence and whose police interview was limited in its scope. We are singularly unimpressed with the comment of the judge to the effect that, having listened to the closing speech of Mr Gozem, he did not understand what Hurley's defence was. Quite apart from the fact that, in our experience, Mr Gozem makes coherent and intelligible submissions, if the judge remained in doubt as to the defence of a defendant, he should have raised his difficulty with counsel before embarking on his summing up. In fact, some aspects of Hurley's defence should not have seemed elusive to the judge. It is plain that Hurley's case was that he lives in Cheshire and was not significantly involved in matters relating to Warboys Parish Council, Harlow District Council or Woburn Safari Park. True it is that there was some evidence of his participation in such projects but it was limited. We are left with the clear impression that Hurley's case, which should have been apparent to the judge, was not explained to the jury.
88. This leads on naturally to the real criticism of the summing up. It is not so much that this piece of evidence or that piece of evidence ought to have found a place but did not, although that criticism is made and to an extent we have accepted it. The central contention is that the summing up at no stage provided the jury with a clear structure for their task. As we have related, the summary of the evidence was sequential, without a serious effort to relate particular witnesses and passages to specific counts on the indictment or defendants. We adopt a description used by Mr Gozem. It was a "dispiriting recitation". We have referred to one passage in which the judge plainly perceived that the jury were finding it wearisome. There were later passages where the same could be, indeed was, said. Nowhere did the judge draw together any of the multiple strands in the case. He did not take individual counts and summarise the evidence relied upon by the prosecution to support the particular count and the case for the individual defendant against it. In a case of this duration and complexity, it was incumbent upon him to do so. Over three weeks elapsed between the conclusion of the evidence and the commencement of the summing up. In shorter and less complicated cases, the failure of a judge to structure a summing up with the identification of issues and appropriate cross references may not be fatal. However, in this case we have come to the regretful conclusion that the summing up did not "properly equip the jury to discharge their task". We do not consider that the shortcomings of the summing up were the result of any partiality on the part of the judge. Quite the contrary. In some respects, his approach was as unhelpful to the prosecution as it was to the defence. One way of testing the sufficiency or otherwise of the summing up is to read it from beginning to end and then ask the question: Did it explain the prosecution and defence cases such that the jury could embark on their task with a clear structure and with issues defined and related one to another? It ought to be possible for an outsider to read a summing up from scratch and to understand the case and the issues. We regret to say that all three members of this court found it very difficult to do so upon one or even two readings of the summing up. If that was our experience, we have to assume that the jury was not properly assisted by it.
89. As we have related, Mr Pavry, plainly mindful of the problems with the summing up, seeks to persuade us that, ultimately, the case was not all that complicated, that the jury would have been able to follow it and that the verdicts, based on overwhelming evidence, are not unsafe in spite of the shortcomings of the summing up. We tend to agree that the case was not in essence very complicated, judged by the standard of serious frauds. The problem is that it must have appeared more complicated rather than less complicated after the summing up. It is clear to us that Mr Pavry and his team prosecuted the case with clarity. Indeed, if the judge had wanted to summarise the way in which the case was put, count by count and defendant by defendant, he would have derived great assistance from the lucid way in which Mr Pavry made his half-time submissions. It was the failure to do anything comparable that rendered the summing up so unhelpful. We also take the view that there was a strong, indeed very strong, case against all three defendants. Nevertheless, the fair trial of any defendant requires that the judge leaves the case properly to the jury. We have come to the conclusion that, in relation to counts 1, 2 and 3, this case was not properly left to the jury because the summing up did not assist them to the minimum level that fairness required. We make it clear again that we do not consider that the judge manifested any bias towards the prosecution. It is the lack of assistance to be derived from the summing up rather than any partiality which rendered it unfair. We consider that it undermines the safety of the convictions on counts 1, 2 and 3.
90. So far as Sampson is concerned, we have had to consider whether his admissions in interview tipped the balance in favour of the safety of his convictions. We have concluded that they do not for this reason. It was his case that his admissions had been procured by oppression or inducement. Although, in most cases, we might have been persuaded to take a robust view against that at this stage, there are special factors surrounding his case. A co-accused, Pill, whose presence on the indictment had resulted in severance, had been interviewed by the same officers. Unknown to the officers, Pill had covertly tape-recorded some conversations that were not recorded pursuant to the provisions of the Police and Criminal Evidence Act 1984. Pill's recording was put to the officers, particularly Detective Constable Clough, in cross-examination on behalf of Sampson. Sampson was making similar allegations but these were being denied by the officer. Although we did not have the opportunity of seeing the cross-examination, we think it likely that it may have achieved what it was intended to achieve on behalf of Sampson. In the course of the summing up, the judge said:

"If they [the police officers] did such things when they were interviewing Mr Pill, it is suggested is it not likely or more likely that they did similar things when they were interviewing Mr Sampson? You may think there is some force in that argument."

91. The judge later gave the jury a correct direction that if the jury were to conclude that there had been or might have been oppression or inducement of Mr Sampson prior to the significant interviews

"… then you should ignore those interviews when considering his case … Only if you are sure that there was no oppression or inducement and that Mr Sampson voluntarily gave his account in those interviews should you consider them. Then you should consider whether Mr Sampson was giving a true or false account to the police and what effect to give to that account."

92. As we consider that there is a real possibility that the jury discounted the interviews on the basis of that direction, we do not consider that Sampson is in any different position from that of Watts and Hurley as regards the safety of the convictions.
93. In our judgment, different considerations apply to counts 4 and 5. They were certainly not complicated matters. The judge did identify evidence specifically referable to them. It seems to us that the evidence against Hurley was overwhelming. We do not consider that the problems with the summing up to which we have referred render his convictions on counts 4 and 5 unsafe.

Other matters

94. Having dealt with the appeals in that way, we do not find it necessary to say anything about other matters that were raised at the hearing. We record that, had the convictions on counts 1, 2 and 3 stood, we would have considered Sampson's appeal against sentence (albeit that it was somewhat academic in view of the fact that all three appellants have been released) and the confiscation order in relation to Hurley. We assume that that will fall in view of our decision on counts 1, 2 and 3. If we are wrong about that, we shall address it in a supplementary judgment.

Conclusion

95. It follows from what we have said that we find the convictions on counts 1, 2 and 3 to be unsafe. Accordingly they are hereby quashed. The appeals against conviction are allowed, save in relation to counts 4 and 5 relating to Hurley. His appeal in respect of those counts was advanced with appropriate restraint. It is dismissed.