England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 16th July 2008

1. MR JUSTICE SILBER: On 9th January 2003 Mr Graham Copsey gave an undertaking to the Secretary of State for Trade & Industry that for a period of 5 years he would not be "a director of a company ... or in any way, whether directly or indirectly concerned or take part in the promotion, formation or management of a company" save with the leave of the court. The undertaking took effect on 10th February 2003.
2. On 21st May 2007, at the Crown Court at Winchester, Graham Copsey was convicted of an offence contrary to section 13 of the Company Directors Disqualification Act 1986, in that between the 10th February 2003 and 30th June 2006 he, as a person disqualified by virtue of the undertaking, directly or indirectly was concerned or took part in the management of Visaplus Relocation Limited without the leave of the court. Mr Copsey's wife, Natalia Copsey, was convicted of aiding, abetting, counselling and procuring Mr Copsey to commit the same offence. Mr Copsey was also convicted of a second count of being concerned in or taking part in the management of a company by the prohibited name of Visaplus Relocation Ltd without the leave of the court.
3. Mr Copsey were given leave to appeal against their convictions by the Full Court in respect of two of their grounds of appeal. Their application for leave to appeal in respect of the remaining grounds of appeal by Mr Copsey and all the grounds of appeal of Mrs Copsey were referred to this court.
4. In order to understand the submissions on the appeal, it is necessary to explain briefly the evidence and the issues which occurred at the trial. The background is that on 8th January 2003 Mr Copsey resigned as a director of Visaplus Relocation Ltd and his wife was appointed as sole director of the company. The case for the prosecution, in respect of count 1, was that during the period from 10th February 2003, which was the start of the period covered by his undertaking, to 30th June 2006, Mr Copsey continued to directly and indirectly manage the company. It is said that his wife, knowing that her husband was disqualified, actively assisted him in the management of the company and that led to her charge.
5. In order to substantiate their case, the prosecution relied on a great number of documents and correspondence which bore Mr Copsey's name and they also adduced evidence of communal actions from Mr Copsey to former clients regarding disputes and overpayments under their contracts. There were also several letters to solicitors representing former clients and those letters bore Mr Copsey's name. Another aspect of the prosecution's case was evidence of conversation between Mr Copsey and three former clients in which Mr Copsey made reference to not having decided whether the company would continue to act for them. One witness, Philip Dukes, claimed that he made a contemporaneous note of conversation with Mr Copsey. In both the conversations he noticed that Mr Copsey used the words "we haven't decided yet", whereas he said in one later conversation Mr Copsey used the words: "I haven't decided yet."
6. Another aspect of the prosecution case was a letter from a company solicitors who referred to their clients as being Visaplus Relocation Limited and Mr Copsey. Two suppliers of a company said that they only ever dealt with Mr Copsey. One other said that they did not know the company with which he dealt. The contracts for those suppliers were filled out by Mr Copsey and signed by his wife.
7. The second count concerning Mr Copsey alone was that he had been a director of VP Relocation Limited, which then became Visaplus Relocation Limited, of which he was a director. The prosecution contended that Mr Copsey had been statutorily bound to notify the creditors of Visaplus that Visaplus Relocation Limited had acquired the business and that he had been a director of a liquidated company. It was alleged that he failed to notify the creditors and the name Visaplus Relocation therefore remained a prohibited name. One of the former creditors said he did not receive a letter informing him of the changeover.
8. When they were interviewed, the appellants gave accounts which very much consistent with their evidence at trial. The thrust of their evidence, so far as count 1 was concerned, was that Mr Copsey had neither taken part in or been concerned in the management of a company within the proper meaning of the term. The case for the appellants was that the company had been managed by Mrs Copsey who had qualifications in law and economics. The evidence of the appellants was that she controlled every aspect of the running of the company to the exclusion of her husband.
9. One of the witnesses called by the appellants was Angela Adams, a solicitor and employee of the company who gave unchallenged evidence that Mrs Copsey controlled every aspect of the company's operation and that she would routinely draw up letters for others including her husband to send to clients. She also said that many of the letters bearing Mr Copsey's name had been standard form letters.
10. So far as the second count is concerned, it was the case for Mr Copsey that he had notified the creditors in accordance with his statutory obligation.
11. The main issue for the jury in respect of count 1, so far as Mr Copsey was concerned, was whether he had been directly or indirectly managing the company. For the prosecution to obtain a conviction of Mrs Copsey, it had to be shown that she had intended and knowingly assisted her husband to commit the offence and had encouraged him to do so.
12. The issue on the second count was whether they were sure that Mr Copsey had not sent out the letters to creditors as required by statute.
13. The grounds of appeal in respect of which leave to appeal was granted by the Full Court relate to the judge's alleged interference in the trial and more particularly with the contention that he sided himself with the prosecution. The first ground of appeal is that the judge made disparaging and prejudicial remarks about important defence evidence and insofar is therefore likely to have influenced the jury and unfairly prejudiced them against the appellants. The second ground of appeal, which is convenient to deal with at the same time, is that the judge made excessive and prejudicial interventions during the course of the evidence of the appellants, with the result that he would have been perceived by the jury as not believing or accepting their case.
14. We ought to say that there is no allegation of actual bias on the part of the judge, but the case for the appellant is that the appeal against conviction should be allowed as they are not safe as they did not have a fair trial.
15. It is pointed out in the advice accompanying the grounds of appeal, settled by Mr Hood, who appeared in front of us, as he did at the trial, that the judge asked 60 questions during Mr Copsey's examination in chief and 50 during his cross-examination, as well as asking 57 questions during the examination in-chief of Mrs Copsey and 36 during her cross-examination.
16. Mr Hood accepts, correctly in our view, that the judge was entitled to ask questions when appropriate in order to clarify matters for himself and that many of the questions were unobjectionable. The issue for us is to look at the nature of the judge's questioning and interventions to see if these appellants had a fair trial.
17. Starting with the allegation about the questioning of the judge, Mr Hood contends that the judge gave the impression that the appellant, and in particular Mr Copsey, were being cross-examined by two people, namely by Mr Ferry-Swainson, who was counsel for the prosecution, and by the judge. It is necessary to determine if there is any validity in this submission by turning to the interventions that the judge actually made.
18. After the cross-examination of Mr Copsey had started on 15th May 2007, the questioning at page 95 related to a statement which the appellant is alleged to have said along the lines, "I couldn't return your money." The judge said at page 95A:

"JUDGE BARNETT: Do you accept that she said something along the lines like, 'I couldn't return your money'?

A. I would've referred to the agreement, your Honour, but the main thing I always say, is put things in writing. Because obviously a decision needs to be made.

JUDGE BARNETT: The impression you are giving is that you cannot return the money.

A. I can't make that decision.

JUDGE BARNETT: Well, that is what you seem to be saying to that particular person.

A. To that particular client, obviously, but... JUDGE BARNETT: Not, I am going to have to consult with the director to see whether we can return your money.

A. To be honest with, your Honour.

JUDGE BARNETT: You did not say that, did you?

A. I would normally say...

JUDGE BARNETT: You did not say that, did you?

A. Sorry, I didn't say.

JUDGE BARNETT: You did not say, I am going to have to consult with the directors before I can tell you what is going to happen.

A. As I say I can't remember that specific client and what was said, it was a long time ago.

JUDGE BARNETT: You did not specifically say that, which is probably what you said should have said. A. I normally say, 'Please put it in writing', your Honour, to be honest with you. That's what I probably say."

We are particularly troubled by the repeated questions of the judge which were in the nature of cross-examination which ended with the words "did you?" In our view, this exchange would be perceived by a jury as showing that the judge did not believe Mr Copsey. The judge then moves on, at page 97, when evidence is being given Mr Copsey to say: "Is that right?" and then he goes on to say that he is puzzled about the way the matters had been handled.

19. Thereafter, when Mr Copsey was being cross-examined about a letter which he wrote, the judge said, at page 105E:

"JUDGE BARNETT: As a matter of interest, why did not your wife write this letter and sign it herself, as was coming from a company?

A. Well, your Honour, it was always the person that signed it that was the point of contact with the customer.

JUDGE BARNETT: I know that, but by now the thing is becoming unbuttoned, as it were, in terms of a contract?

JUDGE BARNETT: Generally speaking one might have thought, although it does not always follow, that somebody such as a director who would be able to bind the company would write this sort of letter. A. As I say, your Honour, I can't answer for my wife. It's her company, she runs the business as she sees fit."

20. On the next day the cross-examination of Mr Copsey continued and he was asked about his mobile telephone which was being transferred to the company. At page 16, after he had said it was originally a personal mobile phone that got transferred onto the company, Judge Barnett said:

"It happens to be the company mobile phone that lives in your pocket is it?

A. Sorry, your Honour.

JUDGE BARNETT: It lives in your pocket.

A. It lives in my pocket in the office, yeah, where my wife is as well."

21. Later, Mr Copsey was being cross-examined about some correspondence which he said was drafted by his wife. He said at page 19F:

"JUDGE BARNETT: ...we are looking at this block of correspondence.

A. That is because it was drafted by my wife.

JUDGE BARNETT: Yes, that particular letter.

A. That particular letter was drafted by my wife so obviously she got the detail correct.

JUDGE BARNETT: The other ones were not?

A. It was me.

JUDGE BARNETT: You see, I, at no stage by the looks of it from the documents does your wife actually sign a letter on behalf of the company, in this correspondence, does she?

A. In this correspondence, what we are talking about here, your Honour...

JUDGE BARNETT: Does that strike you as strange or not?

A. It's just the way my wife runs the company, your Honour.

JUDGE BARNETT: What through you?

A. No, not through me. She runs the company the way she sees fit and obviously she does exactly the same now. I mean nothing has changed. It just doesn't happen to be myself as a customer service consultant.

JUDGE BARNETT: She did not sign any letters now.

A. I don't know what she signs. She may sign some letters.

JUDGE BARNETT: All right, just a moment. She runs the company. She does not sign her letters that she has drafted.

A. As I say she may sign other letters, I mean, obviously you will have to ask her it is not my..."

The judge then goes on to show some documents to Mr Copsey and ask questions in relation to them. There were in fact, at this stage, five pages of transcript, in which the judge was questioning Mr Copsey and a typical exchange is to be found at page 24D:

"JUDGE BARNETT: But just bear with us all, you seem to tell us, you told us many times that you wrote a number of these letters. I am so sorry, that she wrote a number of the letters and you signed them.

A. Yes, a number of, the other type of letters, yes. JUDGE BARNETT: Some letters you wrote but under her instructions.

A. Like this one.

JUDGE BARNETT: Are you telling us there were letters that you wrote that she never even saw?

A. She wouldn't have seen a basic letter like this because she had already instructed me to send an acknowledgement letter out. It is literally a letter to say we will be contacting them in due course or 14 days.

JUDGE BARNETT. So page 94, she would not have seen, A. She would not have seen the basic letter, no. JUDGE BARNETT: Because she had just instructed you.

A. She just instructed me to send it off and that is why the mistake was there because I think if she had of checked she would have seen it.

JUDGE BARNETT: Yes, very well."

A few minutes later Mr Copsey was being questioned about signing a letter to a Miss Irvin. At page 32 the judge says:

"JUDGE BARNETT: Which is you signing that letter to Miss Irwin.

A. That's correct. Again, that would have been drafted by my wife.

JUDGE BARNETT: Now that effectively is saying you are not cancelling the agreement and she has written saying prior to that, you probably remember, 'that I have been waiting for a long time and I can't afford to go to Australia.' A couple of sentences. You appear to write back do you not?

A. Sorry, yes at that time the letter was obviously drafted by my wife and I signed on behalf of the contact.

JUDGE BARNETT: It is the usual story that she drafts the letter.

A. Yes.

JUDGE BARNETT: And you sign it for some bizarre reason.

A. That is the way the company is run."

I pause at this point to say that we are concerned that the judge had been questioning Mr Copsey in a hostile manner at this point and that he felt right to describe one of the pillars of the defence as "some bizarre reason".

22. We are not surprised that counsel for Mr Copsey objected to the judge, in the absence of the jury, about the use of the word "bizarre". The judge, to his credit, apologised in the absence of the jury but when defence counsel asked him to apologise in the jury's presence, the judge said that he would not as this would only focus the attention of the jury on this issue.
23. In his skeleton argument on behalf of the respondent, Mr Ferry-Swainson, who appears both today and at the trial for the prosecution, pointed out that the judge when he summed up, reminded the jury that questions of fact were for them and that they should ignore any view or any apparent view that the judge might have expressed during this trial. In our view, this was a case in which the judge by his comments and the manner of his questioning, to which we have referred, gave the clear impression to the jury that he doubted the case for Mr Copsey. He also took on the role of cross-examining in the way that is more suitable for a prosecuting counsel than for a judge.
24. The frequency and nature of the questioning causes us particular concern, as does the judge's statement that what was an important part of Mr Copsey's case was "bizarre." Therefore, we have reached the conclusion that the appellant did not have a fair trial in respect of count 1 and therefore his conviction was unsafe. We are fortified in coming to this conclusion by the way in which the judge dealt with the evidence of Angela Adams who, as we have said, was a solicitor employed by the company from October 2004. This meant that she was working for the company during part of the period covered by the indictment. Her evidence related to, among other things, the references which are sent out by the company. It was supportive of Mr Copsey's case because it showed what his only limited role was in respect of it. This evidence, which was of great importance in our view to the appellant's case, was dealt with by the judge at page 24 of the summing-up in this way. He said of Miss Adams: "She's asked about references. Again, I do not think we need to go through that." In our view, the judge should not have dealt with that significantly evidence in this dismissive way, although that would not in itself be a ground for allowing the appeal. Nevertheless, when it is added to the other matters to which we have referred it drives us to the conclusion that Mr Copsey did not have a fair trial in respect of count 1.
25. It follows that Mr Copsey's appeal against his conviction on count 1 must be allowed. Mr Ferry-Swainson, counsel for the prosecution, rightly accepts, that this means that the appeal of Mrs Copsey against conviction must also be allowed. It also accepted, correctly by the prosecution, as Mr Copsey's appeal against conviction on count 1 has to be allowed, his appeal on count 2 must also be allowed. We make no comment at all on the other grounds of appeal because it is unnecessary for us to deal with them. Thus, we conclude that all the appeals are allowed and the convictions are quashed.
26. LORD JUSTICE GAGE: Very well, there are no applications?
27. MR HOOD: My Lord, there are two matters. Might I enquire whether there is any consideration to a retrial or whether it is a straightforward quashing...
28. LORD JUSTICE GAGE: That is not necessarily a matter that you need raise. If it is going to be raised, I suspect that it will be the prosecution that raise it, which is what I had in mind when I said "are there any other applications"?
29. MR HOOD: Perhaps in that case....
30. LORD JUSTICE GAGE: What is the position?
31. MR FERRY-SWAINSON: The position is that there will not be an application for a retrial.
32. MR HOOD: Thank you, I am most grateful.
33. LORD JUSTICE GAGE: Presumably your client has complied with the order that was made against him?
34. MR HOOD: My Lords, we ask for a defendant's costs to be paid out of central funds to be assessed.
35. LORD JUSTICE GAGE: He does not have the benefit of legal aid?
36. MR HOOD: Neither or Mrs Copsey have ever been legal publicly funded.
37. LORD JUSTICE GAGE: You do not want to say anything about that?
38. MR FERRY-SWAINSON: No, thank you.
39. LORD JUSTICE GAGE: Thank you. We will make an order for defendant's costs out of Central Funds.