England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
AT KINGSTON UPON THAMES
His Honour Judge Birts QC

		201103878 B5, 201105995 B5, 201204586 B5 Royal Courts of Justice Strand, London, WC2A 2LL
		29/11/2012

Lord Justice Richards :

INTRODUCTION

1. The court has before it a number of applications and an appeal relating to proceedings at the centre of which was a charge of conspiracy to cheat the public revenue through a missing trader intra-Community fraud (an MTIC fraud) which was alleged to have resulted in the loss to the public purse of some £100 million by way of repaid VAT. Because of the number of defendants and issues, the case was divided into four separate trials. The trial venue was the Crown Court at Kingston upon Thames and the trial judge was HHJ Birts QC.
2. The position concerning the defendants whose cases are now before the court is as follows:

i) Dilawar Ravjani was convicted on 14 June 2011, in trial 1, of conspiracy to cheat the public revenue. He was sentenced to 17 years' imprisonment and was disqualified from acting as a company director for 15 years. He makes renewed applications for leave to appeal against conviction and sentence, following refusals by the single judge, Foskett J.

ii) Tamraz Mohammed Riaz was also convicted, in the same trial and on the same date, of conspiracy to cheat the public revenue. He was sentenced to 13 years' imprisonment and was disqualified from acting as a company director for 10 years. He, too, makes renewed applications for leave to appeal against conviction and sentence, following refusals by the single judge.

iii) Rajesh Gathani was also a defendant in trial 1 but pleaded guilty on rearraignment on 4 February 2011, at the beginning of the trial, to conspiracy to cheat the public revenue. He was sentenced to 8 years' imprisonment and was disqualified from acting as a company director for 8 years. He appeals against sentence by leave of the single judge.

iv) Roshan Ara Hussain was convicted on 19 October 2011, in trial 2, of doing acts tending and intended to pervert the course of justice. She was sentenced to 12 months' imprisonment. She makes renewed applications for leave to appeal against conviction and sentence, following refusals by the single judge.

v) Marshall Boston was a defendant in trial 3 but pleaded guilty on 12 June 2012 to being knowingly concerned in the fraudulent evasion of VAT. He was sentenced to 2 years' imprisonment and was disqualified from acting as a company director for 5 years. His renewed application for leave to appeal against sentence has been referred to the full court by the single judge.

3. The other defendants in trial 1 were Haider Ravjani (the father of Dilawar Ravjani and of Hussain), Zafar Chishti and Maulik Bhatt. Chishti was convicted on counts of conspiracy to cheat the public revenue and of perverting the course of justice and was sentenced to 11 years' imprisonment for the former and to 1 year consecutive for the latter (a total term of 12 years). Haider Ravjani and Maulik Bhatt were acquitted. As to trial 2, John McFarnon and John Conroy pleaded guilty to fraudulent trading and were each sentenced to 3 years' imprisonment. Razia Bibi faced the same count of perverting the course of justice as Hussain but was acquitted. Nothing turns on the position of the other defendants in trials 3 and 4.
4. The various matters now before us were considered together by Foskett J, save that Ravjani's sentence application was placed before him later because the papers were mislaid by the Crown Court. He had before him not only the various grounds of appeal but also a very full respondent's notice. He gave lengthy and helpful composite reasons for the various decisions he made.
5. The renewed applications and the appeal were listed together for hearing before us. We had the benefit not only of the material that was before Foskett J but also of written submissions on behalf of the applicants/appellant, developing their respective cases in the light of the reasons given by Foskett J. The time allowed for the hearing itself proved very tight, as a result of which we allowed some response/reply submissions to be made afterwards in writing. We are grateful to all counsel for their assistance. We have given careful consideration to all their submissions, whether oral or in writing, though we have not gone into the same level of detail in the reasons given below for the decisions reached on the various matters before us.

Overview of the main case of cheating the public revenue

6. Future Communications was a company which traded in mobile telephones and was based in Stanmore, Middlesex. The company was owned by Haider Ravjani and was said to be run by Dilawar Ravjani. Unique Distribution was another company owned by the Ravjani family and was based in Abingdon, Oxfordshire. It was managed by McFarnon with some involvement from Conroy. The Ravjani family acquired approximately twenty separate companies, of which Haider Ravjani, Dilawar Ravjani and his sister Hussain were appointed officers, in various combinations. The prosecution case was that between January and May 2006, through fraudulent trading involving these companies and others, it was sought to obtain £170 million from HM Customs & Excise ("HMRC") by way of repaid VAT, and approximately £100 million was lost.
7. The fraud was alleged to have been carried out by two methods:

i) Future Communications was engaged in dishonest trading in "long chains", whereby goods were imported from the European Union into the UK and passed along a chain of companies, one or more of which was a "missing trader", before being exported back to Europe by Future Communications which then reclaimed the VAT. The long chains accounted for approximately 70% of the total trade of Future Communications during the indictment period.

ii) Future Communications and Unique Distribution were together engaged in dishonest trading in "short chains", whereby Future Communications imported goods into the UK and in most cases sold them directly to Unique Distribution which then exported them to the European Union and made a VAT repayment claim.

8. It was accepted by the prosecution that Unique Distribution was engaged at the same time in a legitimate conventional phone supply business. Conversely, it was accepted by the defence that some of the transaction chains involving Future Communications were fraudulent.
9. On 1 June 2006 HMRC officers entered and searched the premises of Future Communications and Unique Distribution. A number of the defendants were arrested, including Dilawar Ravjani. Gathani was arrested in January 2007, and Riaz in September 2008.
10. Dilawar Ravjani made no comment in interview but provided a prepared statement in which he said that he did not have daily involvement in the running of Future Communications. He made a number of further points in line with his defence case at trial.
11. Riaz also made no comment in interview. He provided a short prepared statement in which he denied any involvement in the financial side of Future Communications and said that he had just concentrated on the car business which he had built up.
12. The prosecution case was that all of the defendants knew of the fraud and in their own ways joined in and took part in it. Dilawar Ravjani and Riaz, with Haider Ravjani, were involved in the management of Future Communications and made decisions and gave instructions concerning dishonest trading and money movements. Gathani, Chishti and Bhatt were employed to carry out specific tasks and dishonestly agreed to comply with instructions given to them. The fraud in the long chains had been set up to distance Future Communications deliberately from the missing trader earlier in the chain. The transactions in the short chains were contrived and fake, and were carried out purely to reclaim unpaid VAT. There was no point in importing phones into the UK simply to export them immediately back to the European Union, particularly given that Future Communications sold them direct to its own related company. In order to try to deceive HMRC, Future Communications balanced the amounts due on sales and purchases so as to achieve an almost exactly nil balance of VAT, whilst Unique Distribution, as the exporter, reclaimed very large amounts of VAT. The legitimate trade of Unique Distribution was deliberately used as a cover for other fraudulent trading.
13. The prosecution relied upon evidence from manufacturers that mobile phone models featuring in both the long and the short chains had not been released for sale by the manufacturer at the time the trades were purported to have taken place, or did not exist in the quantities claimed.
14. The prosecution relied further upon emails and other documentary evidence said to link the defendants to the fraud and to show that they would have had knowledge of the fraud. That material included an email relied on as showing possible involvement by Riaz in setting up the company bank account through which much of the trade operated, and emails that showed that he had initiated trades. There were also notes of office meetings showing his involvement in the company, and evidence from Bhatt that Riaz was part of the senior management of the company. Bhatt gave evidence that the defendants, including Dilawar Ravjani and Riaz, all shared the same office.
15. The prosecution also relied upon evidence from an expert witness, David Prior, that the added links in the chains were commercially detrimental as they added to the cost and reduced the profit, so that the only explanation for them was that they were added to carry out the fraud. It was also pointed out that Future Communications' growth was unusually rapid and that in the period January to May 2006 its sales purported to be higher than those of Nokia, the largest supplier of mobile telephones in the world. Mr Prior was of the view that the trading in question did not appear to be at arm's length, i.e. between companies which had no relationship to each other.
16. Neither Dilawar Ravjani nor Riaz gave evidence. They both put the prosecution to proof. Their defence case in broad terms was that they had acted honestly throughout and had no knowledge of any fraudulent scheme.
17. It was Dilawar Ravjani's case that he did not get involved in the day to day running of the business and that he left this to Gathani. At no time did he know or suspect that Future Communication's transactions were connected with missing traders. The company had deliberately sought to minimise its VAT payments but the contra-trading that occurred was quite deliberate and honest. He had cooperated fully with HMRC officers before and after arrest. HMRC compliance officers who had visited Future Communications had had no concerns. The prosecution expert Mr Prior did not have the appropriate expertise. The lies told by Bhatt in interview meant that his evidence should be disregarded.
18. It was Riaz's case that he had no formal role in the company but was a long term friend of Dilawar Ravjani. His job was to look after the car business. There was no proper evidence that he took part in trading and the email evidence did not establish this. He too contended that Bhatt's lies in interview meant that Bhatt's evidence should be disregarded.
19. Riaz also relied on his good character. Dilawar Ravjani's previous convictions were in evidence, as a result of a ruling that is challenged as part of his application to this court, but it was asserted on his behalf that they should be disregarded.

Overview of the charges of perverting the course of justice

20. We have referred above to the counts of perverting the course of justice on which Chishti was convicted in trial 1 and Hussain was convicted in trial 2. They related to the discovery of approximately £50,000 in cash in the boot of McFarnon's car at the time of the searches on 1 June 2006. This was sought to be explained away as a bonus paid to him in accordance with a board resolution. The case against Chishti was that he had lied in giving this explanation to investigating officers. It is unnecessary, however, to consider the details of that case. It is the case in respect of Hussain that requires further explanation.
21. Hussain is the daughter of Haider Ravjani and the sister of Dilawar Ravjani. She was the company secretary for Future Communications and a director of Unique Distribution. She was also a director or company secretary of various other companies within the group of companies controlled by the Ravjani family, including Property & Management Services Ltd which she controlled and which was the beneficial owner of Unique Distribution. She worked in the same office as, among others, Riaz, Chishti and Gathani. Her co-defendant in trial 2 was Bibi, who acted as lawyer to the Ravjani group of companies and worked in the same office as Hussain.
22. Hussain and Bibi were alleged to have created false documents designed to show that the cash found in McFarnon's car on 1 July 2006 was a legitimate payment. On analysis of Chishti's computer following his arrest, HMRC officers found an email from Bibi dated 15 August 2006 which attached a document purporting to be minutes of a board meeting of Property & Management Services on 1 May 2006, attended by McFarnon, Haider Ravjani and Hussain, at which it was resolved that a bonus of £50,000 was to be paid to McFarnon. Also attached was a purported resolution to pay McFarnon the bonus. The documents were found to have been created on 7 August 2006, i.e. after the seizure of the cash. A further document found on Chishti's computer was an amended version of the minutes, showing the date of the meeting as 2 May 2006 and with no attendance by Haider Ravjani. That document was found to have been created on 22 August 2006. There was no record of the payment to McFarnon on the company ledgers.
23. In interview, Hussain gave an account generally consistent with her evidence at trial (see below). Bibi said in interview that she had not been present at the meeting when the bonus was awarded to McFarnon. She thought that Hussain had given her instructions to prepare the minutes but she could not be sure. When shown that the minutes were created on 7 August 2006 she said that they took her some time to prepare. When re-interviewed she said that she only became aware of the bonus when she was told to prepare the minutes. McFarnon said in interview that the cash was a bonus from the Ravjani corporation as a reward for collecting £3 million due to Unique Distribution. Chishti also maintained that the £50,000 was a legitimate bonus.
24. The prosecution case against Hussain and Bibi was that they had deliberately created the documents in order to try retrospectively to legitimise the payment to McFarnon which they knew was a corrupt payment. Hussain had instructed Bibi to prepare the minutes after the fraud investigation had commenced and after she had learnt that the money had been found in McFarnon's car. The board meeting had never taken place. There was documentary evidence that McFarnon had been dismissed three days before the board meeting but was then reinstated. McFarnon's tax records for the relevant period did not correlate with payment of a £50,000 net bonus. Hussain was lying. She said that she had no reason to question Dilawar Ravjani's honesty and integrity but she must have known that he had previous convictions for fraud.
25. Hussain's defence case was that she had not been involved in any acts tending to pervert the course of justice. She had no knowledge of the fraud and had not attended the meeting where it was resolved to pay McFarnon the bonus. She had no reason to believe the meeting had not taken place. The instructions to prepare the minutes were given to Bibi by the owners and directors via Hussain shortly after the meeting. The minutes were then forwarded to Hussain but had to be amended because Haider Ravjani had not been present at the meeting. She first became aware of McFarnon's arrest on 2 June 2006. The minutes of the meeting were given to her before that date. The delay in copying the minutes was due to pressure of work and lack of assistance with her workload. McFarnon's contract of employment and the decision to pay him a bonus were not her concern as she played no part in the management of the business. When she became aware of the decision to pay McFarnon a bonus she did not regard this as suspicious activity. She did not know how the bonus was to be paid (whether by cash, bank transfer or cheque). She was aware of dissatisfaction with McFarnon's performance. The documents found on Chishti's computer had not been forwarded to anyone and the investigators had never been misled. The prosecution had not proved their case. Hussain relied upon her good character and called evidence from a character witness.

Sentencing overview

Trial 1 (Dilawar Ravjani, Riaz and Gathani)

26. In his sentencing remarks in respect of the defendants in trial 1, the judge observed at the outset that the evidence against Dilawar Ravjani and Riaz as to their involvement in the fraud had been overwhelming. He referred to the scale of the fraud and said that Future Communications and Unique Distribution had been the main vehicles for the fraud and that the scheme had been very well thought out. Fraud on such a large scale was immensely damaging to the tax pid:701revenues of the UK and the European Union. Given the level of sophistication used it was difficult to detect, and costly to investigate and to take to trial.
27. The judge said that because the defendants had not given evidence, it was no simple task to evaluate their individual criminality. However, he accepted as broadly correct the individual assessments of seriousness made by the prosecution prior to the trial. He said that there were no formal sentencing guidelines for this kind of offending but he had paid close attention to Court of Appeal authorities and had had particular regard to Attorney General's References Nos.87 and 86 of 1999 (R. v Webb; R. v Simpson) [2001] 1 Cr.App.R. 15. However, the facts of other pid:901cases and the sentences imposed could only be of limited assistance.
28. The judge found that Dilawar Ravjani had devised, organised and personally directed the operation of the fraud. pid:951Once the scheme was established he played a very active role in prescribing and closely supervising the contrived deals transacted by Future Communications and Unique Distribution. He drew in and corrupted others to assist him. He liaised with other traders in pid:1001the chains and controlled the banking arrangements and highly intricate money movements needed to keep the fraud going. His role was fundamental and he was highly culpable in instituting and carrying out, over a lengthy period, a fraud of exceptional pid:1051seriousness. The sentence had to punish for his offending and discourage others from operating such schemes. The offending was aggravated by two factors: his two previous convictions for fraud; and the fact that, according to Bhatt's evidence which the judge accepted, Dilawar had been at a meeting at Future Communications after the first set of arrests when a document was given to Bhatt containing detailed instructions to him to give investigators a false account of the dealing methods adopted. It was significant that Dilawar's account in interview closely matched the version said to have been set out in the document, for which the judge had no doubt Dilawar was responsible.
29. The judge took into account that Dilawar was 43 years old and married, with a young family. He said that pid:1451whilst Dilawar had had to wait a long time for the trial to be listed, this did not justify any pid:1551reduction in sentence because there was no evidence of unjustifiable delay by the prosecution in this complex case: much of the delay was the inevitable result of the vigorous way in which the defendants chose to challenge much of the prosecution evidence and also the disclosure process at every stage. The judge passed the sentence of 17 years' imprisonment in the light of all the matters to which he had referred.
30. As to Riaz, the judge was satisfied that he pid:1801had played an active and continuous role in both organising and carrying out the fraud. He thought that Riaz was Dilawar Ravjani's right hand man in the fraud. Whilst the evidence against Riaz was more limited than the evidence against Dilawar Ravjani,pid:1901 there was no doubt that he had initiated and directed deals in the same way and had particular responsibility for the purchasing side of things. The judge also found that Riaz was trusted by the family to be party to the all important banking arrangements. He was probably the account holder of Future Communications who, having logged in with Haider Ravjani's user name, operated the company's internet account at FCIB (First Curacao International Bank) simultaneously with Dilawar Ravjani; but the judge said that he was not sure about that and that even if he were the sentence would not be different.
31. The judge said that Riaz had been correctly described by pid:2051Bhatt as part of the senior management of Future Communications and had to bear a high pid:2101degree of responsibility for the success of the fraud. He was not prepared to accept that Riaz had not benefited beyond his £90,000 salary.
32. The judge took into account that Riaz was pid:215240 years old and of previous good character. He recognised the devastating effect the conviction and sentence would have on his life. He said, however, that the sentence of 13 years' imprisonment was the least sentence he felt able to pass.
33. Chishti was sentenced in his absence. The judge said that he was the financial director of the Ravjani group of companies, was a qualified chartered accountant and had influence and importance in the companies. He had no part in setting up or organising the fraud but was actively involved in the dealing process and approved many hundreds of false deals through the indictment period. He led changes to Unique Distribution's compliance procedures which deviated markedly from the lawful procedures in place before his arrival. His role in authorising many fictitious deals was pure window dressing and succeeded for a substantial period. There would be a sentence of 11 years' imprisonment for the conspiracy to cheat, and 1 year consecutive for perverting the course of justice: the judge said that in determining those sentences he had had regard to totality. As to perverting the course of justice, the judge said that the offence was serious but that the conduct did not last long and officers were not in fact misled, so that Chishti's culpability was high but the harm caused was low.
34. As to Gathani, the judge said that he was the trading manager of Future Communications and had responsibility for carrying out and facilitating false and contrived transactions in bothpid:2901 the long and short chains on the company's behalf. He had considerable experience in the retail mobile telephone industry. He did not organise the fraud, was not part of the management, and received his instructions essentially from Dilawar Ravjani who exerted considerable influence on his actions. Nevertheless Gathani knew that what he was doing was dishonest and persisted in it for several months, concluding pid:3001hundreds of fraudulent transactions. The freight arrangements were also organised by him or at least made in his name. The part he played was important and essential to the pid:3051success of the fraud.
35. In passing a sentence of 8 years' imprisonment the judge took account of Gathani's age (he was 46 years old), his previous good character, the materials placed before the court on his behalf, his basis of plea and his poor physical and mental health. He also disqualified him from acting as a company director for 8 years. When issue was taken with this, on the basis that the Crown had not sought his disqualification and it was not an appropriate order, the judge said that it was a matter for him to decide and that he was not prepared to change the sentence.

Trial 2 (Hussain)

36. In his sentencing remarks in respect of Hussain, the judge said that she had directed Bibi to prepare legal documents intended to deceive anyone reading them that the £50,000 in cash found in McFarnon's car boot represented a lawful bonus paid to him by the company, whereas the money was in fact a corrupt payment made to him in connection with a very large mobile telephone missing trader fraud. Hussain's instructions to Bibi, using her legal skills, were to manufacture minutes and resolutions purporting to come from meetings held on 1 May 2006 when the applicant knew that a meeting had not taken place. Bibi complied with the instructions, created the necessary documents on 7 August 2006 and sent them to Chishti and Dilawar Ravjani on 15 August. Bibi probably had very little choice in the matter, such were the pressures on her at the time. At some point it was discovered by the defendants that 1 May 2006 was a bank holiday and so the meeting could not have taken place as the office was closed. Hussain then told Bibi to alter the documents so as to record the meeting as having taken place on the 2 May and not to show Haider Ravjani as an attendee.
37. The judge accepted that the two documents were not put forward or relied upon by anyone in authority before they were discovered on Chishti's computer by investigators on 5 October 2006. However, when Chishti was arrested and interviewed on that day he relied upon the documents in an attempt to justify the cash payment to McFarnon. The judge also accepted that the false documents did not mislead the investigators for very long because forensic examiners quickly discovered the dates when they had been created and sent. However, the documents were intended to mislead and were a carefully calculated and serious attempt to interfere with a major criminal investigation. There was a degree of persistence, and the offences under investigation were of the utmost seriousness.
38. Hussain's mitigation lay first in the fact that she had not acted alone, and others including Chishti and very probably Dilawar Ravjani had an important controlling influence on her actions. But having seen her give evidence and having examined the work she did as acting director of one of the Ravjani companies, the judge was of the view that she had the ability and resilience to stand up to those men and should have done so.
39. The judge also took into account that Hussain was of previous good character and had a young family. He had considered the delay and appreciated the strain that must have been placed upon her by the time the case had taken to come to court, but in his judgment it could not alter the sentence. He had considered whether a sentence of imprisonment could be suspended but found no good or proper grounds for taking that course. He had concluded that the only proper way to mark the offence was a sentence of immediate imprisonment of the same length as the sentence imposed upon Chishti for the same offence: he could see no proper grounds to distinguish between them in this matter.

Trial 3 (Boston)

40. Boston had originally been charged with conspiracy to cheat but the Crown accepted a plea to the lesser offence of being knowingly concerned in the fraudulent evasion of VAT. He had formerly operated a legitimate transport company, Marshall Boston & Son, but then set up Boston Freight which acted as a freight forwarding company for Future Communications. The judge said that he would be sentenced on his basis of plea, by which he said that Christopher Cobby, a fellow director of Marshall Boston & Son, had instigated the setting up Boston Freight but he accepted that he had lent his name to that company and had personally opened a bank account which was used to process substantial payments resulting from Boston Freight's activities. The judge said that Boston was one of the owners of the business and allowed it to play what turned out to be an indispensable part in the overarching fraudulent activities of Future Communications. His culpability was high and the harm caused was very serious. However, the judge also accepted that Boston had no idea of the extent of the fraud, found the prosecution's figures beyond belief, felt appalled by his involvement and was genuinely remorseful.
41. The judge accepted that Boston had suffered from ill health and that the account he gave of it in a letter to the court was not overstated. He had suffered from depression for much of his life and had been heavily medicated and hospitalised on occasions for significant periods. There was a considerable body of evidence that his depression stemmed from serious abuse in his childhood. Latterly he had also endured physical ill health although this had improved. Boston did not seek to blame his criminality on his illness, which was to his credit, but the judge took it into account because the events of the case unfolded in late 2005 and early 2006 when Boston was suffering illness and getting treatment for it: this must have played a part in the way he did his job and was relevant to his overall criminality. Boston had a high level of insight into his health and problems and rightly accepted his need for continued psychological treatment.
42. The judge also took into account that Boston was 46 years old and had a family. He had not led a blameless life and had been before the courts for offences of dishonesty and related offences; but the judge did not give them much weight. In his case the judge said that the delay was something that had to be taken into account in the sentencing exercise, because there was no doubt that it had taken its toll on Boston, who had already to a large extent been punished.
43. The judge did not feel able to impose a suspended sentence. He agreed with the assessment of prosecuting counsel, which was not disputed by defence counsel, that the case lay at the top end of the relevant sentencing guidelines, with a starting point of 5 years' imprisonment and a range of 4 to 7 years. The judge saw no reason not to start at 5 years, but he considered that the extent to which the applicant had already suffered and the applicant's personal mitigation made it possible for that to be reduced to 3 years imprisonment before plea. The applicant would be given full credit for the plea that he had entered with some courage. Accordingly, the sentence would be 2 years' imprisonment. The judge added that he considered the sentence to be merciful. It would not be easy but medical treatment would be available in prison and Boston had to make the most of it and continue with his rehabilitation.

DILAWAR RAVJANI

Dilawar Ravjani's conviction application

44. Dilawar Ravjani's renewed application for leave to appeal against conviction is based on the following grounds: (1) the trial judge was wrong to refuse an application for a stay on grounds of abuse of process relating to an issue of disclosure; (2) he was wrong to allow evidence of Dilawar Ravjani's previous convictions to be adduced in evidence; (3) the summing up contained a number of misdirections; and (4) the summing up lacked balance and failed to put the defence case adequately. Ground (1) is common to Dilawar Ravjani and Riaz. As to grounds (3) and (4), Mr Webster emphasised that the points made should be viewed cumulatively.

Disclosure / abuse of process

45. Disclosure was a major exercise, in particular because of the vast amount of material held on electronic media following the seizure of a large number of computers from the premises of the companies concerned. The Crown adopted a "key word" strategy which itself produced millions of "hits", which were then reviewed by a team of officers with knowledge of the case, employing "dip sampling" methods. Material identified by the officers as potentially relevant was then reviewed by disclosure counsel and disclosed as necessary.
46. We do not set out the history of disclosure, though we have considered the arguments against the background of that history. The particular issue arises out of the disclosure of two discs containing some 60,000 emails sent to or received by McFarnon, which had been recovered from back-up servers in the offices of Unique Distribution. That material was disclosed to McFarnon, a defendant in the pending trial 2, by an order made with the Crown's consent. This was at a time when the Crown had almost closed its case in trial 1. The disclosure came to the attention of defence counsel in trial 1, who argued that the material should have been disclosed to the defendants in trial 1 as well: it was argued on behalf of Dilawar Ravjani that there was effectively a cut-throat defence between him and McFarnon notwithstanding that they were in separate trials. The Crown resisted disclosure in trial 1 on grounds of relevance, but the judge ruled in favour of disclosure on the ground that "non-disclosure of the discs to the defendants in the current trial would at the very least have the appearance of unfairness" (para 12 of the subsequent ruling of 5 May 2011).
47. Inspection of the emails by the defence was delayed by the fact that the discs contained viruses; but following inspection of about 12% of them, the defence applied for a stay of proceedings on grounds of abuse of process, arguing that (1) the disclosure process adopted by the Crown in relation to electronic material was fundamentally flawed, as exemplified by the search methods used to examine the McFarnon emails, (2) the contents of the documents the defence had discovered so far on examination of the recent disclosure confirmed this, and (3) given the delay in the trial, the fact that the prosecution case had almost closed, witnesses relevant to the McFarnon materials had given evidence many weeks ago, and full examination of the materials would take many days if not weeks of work, the trial could no longer be fair.
48. In his ruling of 5 May 2011 the judge said that since the defence relied on the relevance of the documents recently disclosed as evidencing a flawed disclosure process, the key to the question whether the process had been misused was whether the documents relied on were in fact disclosable under the Criminal Procedure and Investigations Act 1996 ("CPIA"), i.e. as being capable of undermining the case for the prosecution or assisting the case for the defence. Having considered at some length the particular documents relied on, he held at para 34 of his ruling that neither viewed in isolation nor cumulatively did the documents constitute disclosable material, given the issues in the case. It followed that it was unnecessary for him to make specific findings about the integrity of the disclosure process, but he observed that the process had for the most part functioned properly and he had no cogent evidence before him to justify a finding that the strategy adopted by the Crown was flawed. In para 35 he said that even if he were wrong about the relevance of the items shown to him he would still not have been persuaded to stay the proceedings for an abuse. He then stated:

"Of course, they are not irrelevant in the sense that they could have been deployed in cross examination and can be deployed as part of the defence cases. However, as Mr Brompton pointed out, there are many instances where documents relating to the topics identified in this application have already been served or disclosed but which have not in fact been deployed. I therefore do not accept the Addendum argument advanced by Mr Webster and Ms Blackwell that because the documents are irrelevant for CPIA purposes they cannot be deployed in the defence case."

49. In his submissions to us, Mr Webster attributed a central significance to that passage. He said that if, as the judge accepted, the documents were relevant in the sense that they could be deployed as part of the defence case, then they must also have met the criteria for CPIA disclosure and the judge was wrong to rule otherwise. In our judgment, that is to make far too much of the judge's remarks. There was in fact no objection by the Crown to the defence using the material once it had been disclosed, notwithstanding the contention that there was no CPIA obligation to disclose it in the first place. The judge was adopting a similarly pragmatic and flexible approach towards the use of disclosed material. What he said on this point does not cast doubt on the correctness of his prior ruling that the material was not CPIA disclosable. Whether that ruling was correct must be assessed on its own merits, not by working backwards from what the judge said after making the ruling.
50. At para 25 of his written Advice, Mr Webster summarised a number of documents from the McFarnon disclosure which were relied on before the judge. They fall within the groups of documents with which the judge dealt in detail at paras 23-33 of his ruling. We bear in mind a point made by the single judge, that the judge was presiding over a trial that had by this time been running for several months and in that situation he would have had an intrinsic "feel" for what was or was not relevant. We do not consider that the judge's reasons are open to serious criticism. One of the arguments advanced is that even where documents related to matters that were not in issue (for example, the Crown accepted that Unique Distribution had engaged in some legitimate trading in mobile phones), such documents could have been deployed to add colour to the defence case that, so far as Dilawar Ravjani was concerned, the businesses were run legitimately, and their cumulative effect was potentially significant. We are not persuaded, however, that these documents were capable of adding materially to the picture already before the court or of assisting the defence case (or undermining the prosecution case) even by their cumulative effect.
51. The single judge observed that the full court would require something very specific before concluding that the judge's ruling was wrong, and that nothing had been advanced subsequently, for example by reference to the 88% of the McFarnon disclosure not examined by the time of the application for a stay, that would potentially have made a material difference to the outcome of the trial. Mr Webster sought to meet that point by appending, to his skeleton argument on the application before us, a list of emails from the McFarnon disclosure identified since the trial which, it is submitted, were relevant to the defence and would have been exhibited in the bundle of defence documents put before the jury. Again, a point is made as to the cumulative effect of such material. In their written reply, counsel for the Crown submit that the subject of these documents is similar to those considered by the judge in his ruling; they point out that one of the documents was included in the first tranche of prosecution evidence served in 2009; and they make detailed comments as to the lack of materiality of the other documents. Having considered these further documents and what is said about them by both sides, we do not accept that there is anything in them to cast retrospective doubt on the correctness of the judge's ruling.
52. We have concentrated on the judge's ruling that the documents in question were not CPIA disclosable. But we think it right to add that even if we had taken the view that the McFarnon disclosure included documents that were strictly disclosable, we have seen nothing to cause us to disagree with the judge's observation to the effect that the failure to disclose them would not have led him to stay the proceedings for abuse of process. On the face of it, the massive disclosure exercise involved in this case was approached in a proper manner, and if, contrary to our view, what happened in relation to the McFarnon disclosure constituted a failing in the process, it was not a failing of sufficient materiality as arguably to amount to an abuse of process and to require the proceedings to be stayed.

Previous convictions

53. The Crown made a successful application prior to trial for Dilawar Ravjani's convictions to be adduced in evidence. They were placed before the jury in the form of agreed facts, as follows:

"On 4 March 1999, in the Crown Court at Southwark he was tried on indictment for the offence of conspiracy to defraud. Following his conviction he was sentenced to two years imprisonment.

On 28 July 1999, in the Crown Court at Leeds, he pleaded guilty to an offence of conspiracy to use a false instrument and sentenced to four months imprisonment consecutive to the sentence imposed on 4 March 1999."

54. No further details of the offences were available. The defence argued against the evidence being admitted in circumstances where it was not possible to identify similarities in behaviour, nature of deception, etc., between the current offence and the previous convictions: it was not enough to say that he had a propensity for fraud.
55. The judge's ruling, dated 10 September 2010, gives detailed reasons for concluding that the convictions should be allowed in, broadly on the basis that they were relevant to an important matter in issue, i.e. whether he behaved dishonestly or fraudulently, and they were also capable of establishing a propensity to commit offences of the kind charged. The judge found that it would not be unfair or unjust for them to be admitted.
56. It is submitted that the basis on which the previous convictions were allowed in was unduly wide and that it was inappropriate to admit such prejudicial evidence without having any idea of the nature of the fraud or the type and seriousness of dishonesty involved in the previous offences. We agree with the single judge, however, that it is difficult to see how previous convictions of this nature (and despite the lack of underlying details) were not potentially relevant in this trial for the reasons given by the trial judge. Indeed, we accept the point made by Mr Brompton for the Crown that it would have been strange if these convictions for offences of dishonesty had not been before the court, and that if there was some peculiarity in them which affected their ordinary relevance it was open to the defendant to put it before the court at the time of the application to adduce the evidence or to put it before the jury in the course of the trial. Accordingly, we are not persuaded that the judge's ruling was arguably in error.
57. Mr Webster referred us to the judge's summing up on this issue (at 29F-H), but as we understood his submissions his challenge was to the initial decision to admit the evidence and not to the terms of the summing up itself. For the avoidance of doubt, however, we make clear our agreement with the single judge that the trial judge gave a very clear and balanced direction to the jury about how to approach the evidence.

Alleged misdirections in the summing up

58. The judge gave the jury written directions which had been discussed with counsel and which he took the jury through, with additional comments, in the course of his summing up. He is alleged to have misdirected the jury in three respects.
59. The first complaint relates to his directions on the offence of conspiracy. Paras 8-14 of the written directions, which the judge read out, dealt with various relevant considerations and ended with this:

"It follows that it is no defence to conspiracy to say that the agreement charged was put in place by others (whether named or unnamed), or that others are or may be to blame for carrying on a dishonest scheme at an earlier time unless the culpability of others provides a real basis for suggesting that the defendant in question is not guilty of the offence charged. If that were so the prosecution would not have proved its case. In any event, evidence of the arrest of others or others being tried later is not relevant to whether any of these defendants is guilty of conspiracy."

Having read that out, the judge added this sentence orally:

"So your task, members of the jury, is to concentrate on these defendants and these defendants alone."

60. Mr Webster's submission is that that part of the directions, in particular the additional sentence, was likely to be taken by the jury as closing off an important part of the defence case. The defence were contending that any fraudulent trading within the trading chains was organised by others, that the defendant's companies were merely trading in deals which they believed to be honest, and that great significance was to be attached to the absence of evidence of any collusion between those companies and others in the trading chains where there was, by contrast, direct evidence of collusion and organisation. Thus, as part of the attempt to show that the defendant's companies were drawn in innocently to trading chains in which others were acting dishonestly, it was important to look at the degree to which others were organising the dishonest trade. The judge's direction to concentrate on the defendants alone was therefore inappropriate.
61. We do not accept that the judge's direction had the effect contended for. The written part of the direction was legally correct and unexceptionable. The sentence added orally did no more than underline the effect of the last part of the written direction, emphasising to the jury that they should concentrate on the defendants before them, not on the arrest or trial of others, since the arrest or trial of others was not relevant to whether any of the defendants before them was guilty of conspiracy. It is unrealistic to suggest that the jury might have understood this as a direction closing off or discounting the part of the defence case to which we have referred.
62. The second complaint relates to the judge's direction concerning Gathani's plea of guilty. In his written directions, which he read out, the judge first reminded the jury about that plea and directed them, in our view correctly, about its evidential status, including that it was not evidence of the participation of any of the defendants in the conspiracy. He continued (at 21D-F), still reading out his written directions:

"Mr Webster, in his closing address to you, said that there may be many reasons why a defendant should plead guilty to a criminal offence and seemed to invite you to conclude that Gathani's plea of guilty is in some way distant from or not connected with the conspiracy with which Dilawar Ravjani and the other defendants are charged and that you shouldn't place any weight on it. I direct you however as a matter of law that Gathani's plea in this case is evidence on which you are entitled to rely, first, that there was a conspiracy to cheat in which FC was involved and, second, that FC's head trader or sales manager knowingly participated in that conspiracy. So that is the distinction that you must draw about the relevance and probative effect of that plea."

63. Mr Webster contends that the defence submissions in relation to Gathani's plea were clearer than the judge appeared to have understood them to be. The defence adduced evidence that Gathani was responsible for involving Future Communications in extensive trading with companies owned by members of his own family which were substantially involved in the relevant trading chains. Since the exact basis of his plea was something of which the jury had no knowledge, it was a tenable and fair line of reasoning to put to the jury that it might have been in respect of the trading which he carried out with his family companies: collusion between him and his relatives was something that could not be discounted. A plea by one of the alleged conspirators is likely to be of significant effect with the jury and requires careful directions; yet the judge failed to summarise, let alone to analyse, the defence submissions.
64. Whether or not the judge correctly understood the submissions made by Mr Webster in his closing speech, we do not think it arguable that there was a material flaw in the legal direction he gave the jury. He was entitled to stress the evidential status of Gathani's plea. Although some criticism is also made of the precise way in which he expressed the point, the language he used got the essential point across. It was not necessary for him to remind the jury of the detail of the submissions made by Mr Webster in relation to the plea.
65. The third alleged misdirection (though it is more a complaint of imbalance) concerns the judge's directions in respect of expert evidence. The defence had challenged the extent of the expertise of Mr Prior. The challenge related in part to his ability, as a generalist accountant rather than an economist, to comment as he did on matters relating to the operation of the market. He had advised previously in relation to an MTIC fraud but conceded in evidence that this had not related to any real consideration of the operation of the market. Further, as part of his evidence Mr Prior traced the various movements of monies, which he claimed to have been circular, but he was cross-examined to the effect that it was unsurprising that parties which were trading with one another should use the money paid by trader A to pay off trader B, and so forth, and that it could be demonstrated that each payment related to a trading transaction. Cross-examination also brought out weaknesses in his analysis. It is submitted that the judge's directions did not deal adequately with these matters and were unbalanced.
66. When the judge first dealt with this topic he said this (at 17B-E):

"Mr Prior is an independent forensic accountant of 20 years' experience who has been practising for 26 years as a chartered accountant. He specialises in forensic accountancy and has advised in fraud investigations for both prosecution and the defence. What he says about the FCIB money movements is not disputed by the defence and you may decide that much of what he said about dealing at arm's length in relation to FC's and UD's trading was really common sense. Those of you with business experience might not need expert help on that issue or indeed on the issue of what does or doesn't make commercial sense. Nevertheless in so far as his evidence based on expertise assists you and you accept it adopt it. Otherwise leave it aside. In relation to Mr Prior, Mr Webster has questioned his expertise and I shall return to that when I deal with the evidence. You must keep it in mind."

67. Later, after summarising Mr Prior's evidence about the trading chains, the judge reminded the jury (at 55C-56A) of Mr Webster's cross-examination about his experience and expertise, and of the fact that Mr Webster had "strongly submitted" in closing that the jury should not accept this part of Mr Prior's evidence because of his lack of expertise. The judge directed the jury to consider that point and to decide whether Mr Prior lacked experience and expertise to assist them or whether they could accept his evidence and take it into account.
68. It seems to us that the issue of Mr Prior's expertise was thereby placed squarely before the jury. There was no arguable misdirection on the point. Moreover the judge said enough about the nature of the defence challenge to Mr Prior's expertise to achieve a fair balance.
69. When it came to the question of money movements, which the judge covered at some length, he said (at 64D) that the evidence was uncontroversial and that it was not controversial that it showed co-ordination of payments by traders featuring the chains. It is possible that this overstated the position, though the extent of any actual controversy on this aspect of the matter appears to have been very limited. It is also true that the judge did not cover every point made by the defence in cross-examination of Mr Prior on the subject. We are not persuaded, however, that the result was even arguably a material imbalance or a failure to place an important part of the defence case before the jury.
70. Mr Webster said that the criticism of the summing up in respect of Mr Prior was not a stand-alone point but was relied on by way of cumulative effect. In our judgment, the points do not provide an arguable ground of appeal whether viewed individually or cumulatively.

Alleged imbalance / inadequacy of the summing up

71. The next contention on behalf of Dilawar Ravjani is that the summing up failed to remind the jury adequately of the issues and to provide a balanced account of the evidence. Counsel did not take up the judge's invitation, at the end of the summing up, to correct him if he had missed anything out; but we are told that this was because the view was taken that the summing up was beyond redemption and that nothing could be done without leaving the jury in a state of further confusion. The multiple points raised are therefore relied on again for their cumulative effect. In outline, those points are as follows:

i) "Non-existent phones": an important part of the Crown's case was that some of the phones purportedly traded by the companies concerned were either not on the market at the time or were not available in the numbers purportedly traded. The judge reminded the jury of the evidence called by the Crown from representatives of the manufacturers but it is said that he failed to engage with evidence pointing the other way, including evidence as the size of the market in counterfeit phones and various other pieces of evidence concerning the availability of phones on the market and the physical existence of the phones.

ii) "Trading schedules": a set of schedules of trading was compiled by the Crown, working up and down the trading chains from the records of Future Communications and Unique Distribution. It is said that the judge made a false point about the position of those companies in the chains; that in dealing with the collapse of trading chains on the effective shut-down of the operations of Future Communications, he failed to remind the jury of the defence argument that HMRC's technique of extended verification, whereby payment of VAT reclaims was delayed, put some traders out of business by freezing their capital and that their presence in the schedules as non-accounting traders did not mean that they were "missing traders"; and that he misstated the effect of some of the evidence in the schedules of transport movements.

iii) "Phone attributed to Dilawar Ravjani": a phone found by Dilawar Ravjani's bed contained text messages which were said by the Crown to relate to trading, thus countering his claim that he did not get involved in day to day trading. What he said in interview was that the phone was a pool phone, used by various people, which he was using in the short term. The judge referred to Mr Webster's argument in closing submissions that the Crown had not proved that the phone had been used by Dilawar Ravjani (i.e. for business purposes), but complaint is made of the judge's failure to include any detail or analysis of the argument.

iv) "Bhatt's diary": the Crown relied, as evidence of Dilawar Ravjani's involvement in trading matters, on evidence that emails were sent by him before relevant deals were recorded in Bhatt's diary. The judge gave a general direction, in relation to statements in the diary and other material emanating from individual defendants, to the effect that the jury could only treat it as evidence against another defendant if they were satisfied that the statement was made in furtherance of the conspiracy. The defence had argued that the diary was no more than an aide-memoire and was not admissible against other defendants. It is submitted that the jury should have been told that before it could be used as evidence against other defendants they would have to be sure that it was created in furtherance of the conspiracy, not as an aide-memoire.

v) "Local assurance officers": Dilawar Ravjani's case was that the companies were well run, there was proper documentation, and great steps were taken to ensure that there was proper oversight of the accounts; and as part of that case it was said that he had been open with the local HMRC officers and had always provided them with whatever information they required. The judge gave an outline of the defence case on this (at 39G-41G) and summarised (at 62D-64D) the evidence of the relevant officers, also reminding the jury of the documents the defence had put in on the subject. It is said, however, that he failed to refer to the fact that one of the officers, when cross-examined, did not dissent from the proposition that Dilawar Ravjani was quite open about contra-trading by Future Communications, which was relied on as a significant pointer against the Crown's case that contra-trading was carried out for fraudulent purposes.

vi) "Unique Distribution employees": the Crown called three employees of Unique Distribution who, it is said, made concessions in cross-examination that were favourable to the defence, for example about due diligence checks and about the way the business was conducted before and after it was taken over by the Ravjanis. Complaint is made that the judge's summing up of this evidence was at best cursory.

vii) "Dilawar Ravjani not giving evidence": the judge gave the jury standard directions (at 22C-24A) as to the inferences that might be drawn from a defendant's decision not to give evidence, and he referred back to those directions when reminding the jury (at 106A-C) of Mr Webster's submission that it would not be appropriate for them to draw any adverse inference against Dilawar Ravjani "[b]ecause, submits Mr Webster, there is no case of sufficient strength against [him]". There is no complaint about the directions given but it is submitted that the reasons advanced by Mr Webster to the jury were far more detailed than set out by the judge.

viii) "A contrast with Maulik Bhatt": Bhatt gave evidence, and it is said that his evidence emerged as a cut-throat defence. The judge summed up his evidence at some length (at 120B-132A). It is acknowledged that a defendant who does not give evidence cannot complain when the evidence of a defendant who does give evidence is summarised. But it is submitted that important points made on behalf of co-defendants should be included in the interests of balance and that the judge omitted one particular point. It concerned an allegation by Bhatt that he had been directed at a meeting in November 2006 to give investigators a false account of dealing procedure in accordance with a document tabled at the meeting. The judge dealt with this at 128D-129B. He reminded the jury that this meeting and the document had not been mentioned by Bhatt in interview or in his defence statement. But complaint is made of the judge's failure to remind the jury that, despite the fact that there had been extensive requests for disclosure on Bhatt's behalf, there had been no request aimed at establishing the existence of the claimed document.

72. We have considered all those points, taking into account not only the fuller details given in Mr Webster's written Advice but also the detailed response in the Crown's written respondent's notice and the further arguments advanced, in part by reference to that response, in Mr Webster's skeleton argument. We have also re-read the summing up with all the relevant points in mind. In a case of this length and detail, it is inevitable and appropriate for there to be a degree of selectiveness in a judge's summary of the issues and evidence. Moreover, as the judge said at 31B-C, the jury were by now very familiar with much of the evidence, and counsel had made considerable reference to it in their speeches. The judge also gave the jury a clear standard direction (at 31D-E) that if they thought evidence was important they should have regard to it whether he had referred to it or not. He added: "In a case such as this I can't possibly summarise all the evidence or all the points made about it by counsel". We do not consider that the omissions of which complaint is made resulted in a failure to place the defence case fairly before the jury. On the contrary, we are satisfied that the summing up, taken as a whole, presented a balanced picture of the respective cases for the Crown and for the various defendants and was fair to all parties.

Conclusion on conviction application

73. Accordingly, despite Mr Webster's detailed and forceful submissions, we are not persuaded that Dilawar Ravjani has any arguable ground of appeal against conviction. The application for leave to appeal is refused.

Dilawar Ravjani's sentence application

74. We turn to consider his renewed application for leave to appeal against his sentence of 17 years' imprisonment. The judge's relevant sentencing remarks are summarised at paras [26] to [29] above. The grounds of appeal are that the sentence was manifestly excessive; the judge failed adequately to take into account (1) that this was not an offence involving violence, (2) the disparity between the sentence imposed and the maxima for statutory offences of fraud, (3) that whilst a sentence in the appropriate range may have a deterrent effect, a sentence in excess of what is appropriate could not reasonably be seen to have any additional deterrent effect, and (4) the length of time between the last act of the conspiracy (May 2006) and the trial (January to June 2011). Points stressed in Mr Webster's oral submissions were that the judge went too far in treating Dilawar as the architect of the whole fraud, which was not how the Crown had put the case, and that the judge took narrow a view of the effect of the passage of time between the offence and the trial, which should have been reflected by some allowance in the sentence passed.
75. The submission that the sentence of 17 years was manifestly excessive was endorsed by Mr Marshall-Andrews QC on behalf of Riaz, whose own case in relation to sentence depended on the court accepting that a starting point of 17 years for the most culpable of the defendants was too high.
76. In assessing those submissions we have had regard in particular to R v Jagprit Randhawa & Others [2012] 2 Cr App R (S) 53, to which our attention was drawn by Mr Brompton QC for the Crown. That, too, was a case in which the defendants were convicted of conspiracy to cheat the public revenue by means of a missing trading VAT fraud. The court held that sentences of up to 15 years were within the range properly open on the findings below and were not manifestly excessive, though the particular sentence of 15 years was reduced on appeal to 14 years for reasons of unfair disparity. The court accepted a submission that the total value of identifiable VAT reclaims made or intended to be made, and the total amount actually paid out by way of VAT reclaim, would in most cases provide the most reliable starting point for sentencing. The court said that this would also provide the most reliable basis for comparison with sentencing decisions in other cases, though such decisions are inevitably fact specific. Having reviewed a number of decided cases, the court pointed to the difficulty of determining whether the focus in those cases had been on the amount of VAT reclaimed or sought to be reclaimed and on the amount actually repaid, and therefore the difficulty of making a like for like comparison with them.
77. It was agreed before the court in Jagprit Randhawa that the identifiable reclaims totalled £18.9 million and the VAT repayments totalled £7.8 million. The conspiracy in that case was described as one "on a vast scale". The conspiracy in the present case was on an even vaster scale. The prosecution case was that it had been sought to obtain £170 million by way of repaid VAT and that approximately £100 million was obtained. In his sentencing remarks the judge said that £175 million had been at risk and the actual loss was approximately £107 million. Those figures, which have not been disputed in the applications before us, show the magnitude of this conspiracy and provide a fair basis of comparison with Jagprit Randhawa.
78. Having regard to that and to the particular features of the present conspiracy, we are in no doubt that the sentencing range taken by the judge was properly open to him.
79. So far as concerns the particular position of Dilawar Ravjani, we see no arguable error in the judge's approach. As the trial judge he was in the best position to determine the respective roles and responsibility of the defendants, albeit his task was made more difficult by the fact that the convicted defendants had not given evidence. We reject the submission that it was not open to him to find that Dilawar Ravjnai had devised, organised and personally directed the operation of the fraud. He was plainly right to treat as aggravating factors the previous convictions and the steps taken to secure that investigators were given a false account of dealing methods. He took into account such limited personal mitigation as there was. He was entitled to take the view, for the reasons he gave, that the delay between the offence and the trial should not lead to a reduction in sentence.
80. Taking everything together, we are satisfied that the sentence of 17 years was not arguably excessive. The application for leave to appeal against sentence is therefore refused.

RIAZ

Riaz's conviction application

81. Riaz's renewed application for leave to appeal against conviction is based on two grounds. The first is the disclosure issue already fully considered in the context of the application by Dilawar Ravjani. For the reasons given in that context the arguments on that issue cannot in our view succeed. We therefore concentrate here on the second ground, which relates to the adequacy of the summing up. The relevant arguments were set out in Mr Marshall-Andrews' written skeleton argument and developed by him in oral submissions. To the extent that his original Advice and perfected grounds went further, most obviously in contending that the conviction was against the weight of the evidence, we did not understand him to pursue the points and we are satisfied in any event that they are unsustainable.
82. Riaz's case at trial was that he ran the car business at Future Communications but was not involved with phone trading (beyond the dissemination of information relating to trade already done) and had no involvement with the banking operations of Future Communications or Unique Distribution; in particular, he had no control over or interest in the companies' bank accounts at FCIB. The absence of FCIB involvement was important to his case, given the way in which the circularity of movements of monies between accounts was relied on in support of the prosecution's case of fraud.
83. What is said is that there was no evidence linking Riaz to any of the bank accounts. In particular, the sole signatories to Future Communications' FCIB account were Dilawar Ravjani and his father, Haider Ravjani, who also possessed the only access codes. The Crown, however, relied on an email from Bibi as linking Riaz to the account, though it put its case no higher than that he "may have had something to do" with the setting up of the account (and it is submitted by Mr Marshall-Andrews that the case based on this email was "vestigial"). The email was dated 1 September 2005, just before the account was opened, and was sent to Mr Paul Bailey, an employee at the bank. Bibi stated in it that Mr Bailey had spoken to her colleague "Tam" in relation to opening a new account at the bank. Although Riaz's first name is Tamraz, it was pointed out at trial that "Tam" could have been a reference to another employee.
84. In closing submissions, however, Mr Shears QC, counsel for Haider Ravjani, drew attention to an email in the jury bundle which nobody had previously mentioned at the trial. It was an email dated 16 November 2005 from Dilawar Ravjani to Riaz, forwarding an email from the bank about unlocking the account. The purpose of drawing attention to it was to point out that Haider Ravjani was not a recipient. But the email had obvious implications for the position of Riaz.
85. In his summing up, the judge dealt with this aspect of the case as follows. First, in the course of summarising the evidence on Future Communications' banking arrangements, he said (at 73E-74C):

"It seems that Tamraz Riaz played some part in relation to the opening of the FCIB account from an email from Razia Bibi to Paul Bailey … [he then described the email of 1 September 2005].

This evidence should be considered with Maulik Bhatt's evidence that he thought that Tamraz Riaz was part of senior management and running the company. You may think – it's a matter for you – that in most businesses it would be likely that senior management would be responsible for handling large money movements on behalf of the company, particularly if they involved precise and intricate timing. Remember also Mr Parker's analysis of the log-in and session details …. It's not disputed that the username ending 007 was the username assigned to Haider Ravjani, and the one ending 926 was the one assigned to Dilawar Ravjani. Was it Haider Ravjani who was logging in and doing the transactions under the username of 007 throughout May 2006 or was it someone else? And, if it was someone else, who was it? When the two names were logged on together was it father and son or was it someone else? Those are the questions that you are entitled to, and should, ask when considering this evidence, members of the jury."

86. It was then pointed out to the judge that in using the expression "It seems that Tamraz Riaz played some part …" he had put the matter higher than it had been put by the Crown. This led him to correct what he said, in these terms (at 78E-H):

"What I said was it seems that Tamraz Riaz played some part in relation to the opening of that account. I should have said may have because there's no admission from his lawyers that it was him. You'll remember Mr Marshall-Andrews' point about another email which mentions Tam and I'm coming to deal with that in a moment. But it's for you to decide. Of course, we've got the documents and we have to look at them and see what inferences can be drawn from them. But it's for you to draw the inference and not me."

87. Later in his summing up the judge referred (at 107G-108D) to the email of 16 November 2005:

"Mr Shears pointed out in his speech that when Dilawar Ravjani received an email from FCIB after being locked out of his account, having used his father's username 007, Dilawar forwarded the rejection by FCIB not to Haider Ravjani but to Tamraz Riaz. A matter of significance, suggested Mr Shears ….

… [Riaz] denies any involvement in the financial side of FC and said that he just concentrated on the car business which he had built up.

Mr Marshall-Andrews on his behalf pointed to the absence of evidence of matters which he submitted you might be expected to find implicating him, Tamraz Riaz, were he guilty of conspiracy. He said the September FCIB email forwarded to his client by Dilawar Ravjani (referred to by Mr Shears and which I've just reminded you of) didn't prove anything against Tamraz Riaz, let alone participation in the running of the FCIB account. He said there was no proper evidence of Mr Riaz taking part in trading and the emails don't establish that."

88. Mr Marshall-Andrews submitted to us that the passage quoted at para [85] above in which the judge raised the question whether someone other than Haider Ravjani was logging in to the account under Haider's user name amounted to a veiled assertion that Riaz was responsible for doing so (and doing so in respect of transactions involving many millions of pounds), and that this in turn could only be based on a particular construction of the email of 16 November 2005, with no warnings or caveats as to its provenance or use. When the judge corrected "It seems that …" to "may", this did not draw fire from his unevidenced suggestion that Haider's username may have been used by Riaz. The failure to provide any cautionary warning on this issue was compounded by the passage quoted at para [87] above, where the judge juxtaposed the email of 16 November 2005 with Riaz's case without any caveat or balancing summary as to the negligible evidence of involvement by Riaz in the financial arrangements. He failed to correct the damage done by the idea he had planted in the jury's mind by the earlier passage.
89. We do not accept those criticisms of the summing up. In our judgment, what the judge said on this subject was balanced and fair. To the extent that he overstated the effect of Bibi's email of 1 September 2005, he promptly corrected the error. It was perfectly legitimate for him to point to Bhatt's evidence that Riaz was part of the senior management team and to raise the question whether someone else had been using Haider Ravjani's username to log in to the FCIB account and, if so, who it was (and, by implication, to invite them to consider whether it was Riaz). At this point he was not referring to or relying on the email of 16 November 2005, which he dealt with later; and when he did come to deal with that email, he was quick to remind the jury of what counsel for Riaz had said about it.
90. It also seems to us that Mr Marshall-Andrews has attributed to the email of 16 November 2005 a greater significance than it can have had in the context of the case as a whole. We have already mentioned that the judge said at the opening of his sentencing remarks that the evidence against Riaz (as against Dilawar Ravjani) as to their involvement in the fraud had been overwhelming. From our reading of the summing up we see no reason to believe that the judge's assessment was mistaken.
91. Thus, we do not accept that Riaz has an arguable ground of appeal against conviction. His renewed application for leave to appeal is refused.

Riaz's sentence application

92. The judge's sentencing remarks in respect of Riaz are summarised at paras [30] to [32] above. The ground of appeal is that a sentence of 13 years' imprisonment was manifestly excessive.
93. The main thrust of the submissions made by Mr Marshall-Andrews was that the starting point of 17 years applied by the judge to Dilawar Ravjani was too high and that if Dilawar's sentence were reduced then Riaz's sentence should also be reduced. We have already concluded, however, that Dilawar's sentence was within the range properly open to the judge and that there is no basis for interfering with it. That, as it seems to us, knocks out the main plank in the case for a reduction in Riaz's sentence.
94. A further submission was that there was no evidence to support a finding that Riaz was trusted by the family to be party to the all important banking arrangements (see para [30] above). We note, however that the judge was very careful about the findings he made for the purposes of sentencing – on this aspect of the matter he made clear that he could not be sure that Riaz had been the person who logged in with Haider Ravjani's username – and we are not persuaded that he was even arguably wrong to make the finding he did.
95. Mr Marshall-Andrews also criticised the judge for being unwilling to accept that Riaz had not benefited beyond his salary from his participation in the conspiracy. It seems to us, however, that the judge was justifiably cautious about going into questions of benefit while confiscation proceedings were outstanding and that he was entitled to sentence without determining that issue. In any event it is clear from the judge's approach that he did not sentence on the basis that Riaz had been shown to benefit beyond the amount of his salary.
96. Taking an overall view, we are satisfied that the sentence of 13 years was not arguably excessive for Riaz's involvement in this extremely serious conspiracy. His renewed application for leave to appeal against sentence is therefore refused.

GATHANI

97. Gathani appeals against the sentence imposed following his plea of guilty to the same count of conspiracy to cheat as that on which Dilawar Ravjani and Riaz were convicted.
98. The history of the matter is that Gathani was arrested in January 2007, was first notified in April 2008 of the proceedings against him, pleaded not guilty on arraignment in May 2010, but changed his plea to guilty on re-arraignment on 4 February 2011 at the beginning of the trial. There was a written basis of plea which was accepted by the Crown:

"1. Rajest Gathani pleads guilty on the following basis:

2. He was employed by Dilawar Ravjani as a trader.

3. At the time he believed that the trading he was to be involved in was entirely legitimate.

4. The instructions as to who to trade with came from Dilawar Ravjani.

5. During the period, Dilawar Ravjani was ostensibly conducting very substantial transactions, which were circulated by email and Gathani copied them.

6. He asserts that as a result there came a time during the second half of the conspiracy period when he realised that the trading that the company was apparently involved in must have been bogus. The Crown does not consider it necessary that this issue be determined and are therefore content that he is sentenced on the basis of this assertion.

7. He continued to receive instructions as to who to trade with. Gathani accepts that he continued to be involved in those transactions and accordingly became a knowing party to the fraud.

8. It is his case that the only reward he received from his involvement in the offence was the salary he received which was £2,300 net per month. The Crown accepts that, as of today, there is no direct evidence that he received any other benefit. It remains the Crown's position that confiscation proceedings will take their usual course.

9. The Crown accepts that in terms of the hierarchy in this case, the order is as follows: Dilawar Ravjani and Haider Ravjani, followed by Riaz and Chishti, followed by Gathani and Bhatt (who are on a par in terms of culpability)."

99. Sentencing awaited conclusion of the trial and eventually took place on 20 June 2011. As already indicated, he was sentenced to 8 years' imprisonment and was disqualified (under s.2 of the Company Directors Disqualification Act 1986) from acting as a company director for 8 years. The judge's sentencing remarks in relation to him are summarised at paras [34] and [35] above.
100. Issue is taken both with the length of the custodial sentence and with the disqualification from acting as a company director.
101. As to the custodial sentence, Mr Aaronberg QC drew attention to Gathani's age (he is 46), his previous good character and the fact that he is in poor health. The following further points were made on his behalf.
102. First, Mr Aaronberg submitted that Gathani should have received a discount to reflect the delay between arrest and trial: he referred in that connection to Attorney General's References Nos. 80-91 of 2006 [2006] EWCA Crim 3254 and R v Henning [2007] EWCA Crim 2024, in both of which a discount to reflect the delay was applied by the sentencing judge.
103. Secondly, he submitted that Gathani should have received substantial credit for his plea despite its relative lateness. Gathani had been placed under enormous pressure by his co-defendants not to break ranks; it took courage for him to do so; and the result of his doing so was that the Crown was able to rely on his plea as evidence of the existence of the conspiracy. In R v Girma [2010] 1 Cr App R (S) 53 at para [103] the court said this on the subject, albeit in the context of acts of terrorism:

"However, we think that there is considerable force in the argument that he should have received a greater discount on account of his plea than he apparently did. In a multi-handed trial, which is likely to last months, which will be conducted at immense public expense, particular credit must be given to those who break ranks and plead guilty, particularly in the context of allegations such as the present. Of course, greater credit will be given, the earlier that the pleas is entered but even with a plea entered only 10 days before the trial very considerable savings are made. In our view he should have received more than a 10% discount; something in the region of 20% would have been more appropriate."

104. Thirdly, it is submitted by reference to his basis of plea (there being no indication that the judge rejected any of the matters set out in that basis of plea) that Gathani fell to be sentenced on the basis that he was the least culpable of the defendants, who had participated in the fraud for minimal personal benefit and for a limited period of time. In a pre-trial document containing its "provisional assessment of seriousness", the Crown had placed Gathani relatively low down the scale, in the lower sub-category of the second tier of defendants, with a suggested sentence in the region of 10 years after trial (compared with a suggested range of 15 years plus for Dilawar Ravjani). Given the basis of plea, a sentence lower than that was to be expected, with a further reduction for plea and personal mitigation.
105. Fourth, it is submitted that there was unfair disparity as between Gathani's sentence and the sentences imposed on a number of other defendants. Chishti received a sentence of 11 years after trial for the conspiracy to cheat (with 1 year consecutive for perverting the course of justice) but was more culpable than Gathani and had been placed above him in the Crown's "provisional assessment of seriousness", with a suggested sentence in the region of 12 years: Chishti was a qualified accountant and the financial director of the Ravjani group of companies; the judge said that he was actively involved in the dealing process and persisted in approving many hundreds of false deals during the indictment period; he led and forced through changes to Unique Distribution which deviated markedly from the lawful procedures in place before his arrival at the companies; his role in authorising many fictitious deals was pure window-dressing. By comparison with Chishti it is submitted that a sentence of 8 years on a less culpable defendant who had pleaded guilty in the circumstances described above was self-evidently wrong.
106. A further point on disparity is advanced by reference to the sentences of 3 years' imprisonment imposed on McFarnon and Conroy in trial 2. They had both been involved in the running of Unique Distribution. McFarnon had been placed well above Gathani in the Crown's "provisional assessment of seriousness", and in his sentencing remarks in relation to both of them the judge referred to the seriousness of their offending. The fact is, however, that McFarnon and Conroy pleaded guilty to, and were sentenced for, the statutory offence of fraudulent trading which has a maximum sentence of 7 years, and in our judgment the attempted comparison with their position does not advance Gathani's appeal.
107. Whilst that last point does not attract us, we do see force in some of Mr Aaronberg's other submissions. In particular, we accept that Gathani deserved substantial credit for his plea of guilty despite its lateness: a figure in the region of 20%, as was accepted by the court in Girma, seems to us to be appropriate in the particular context of this case too. Having regard to the matters contained in his basis of plea, we also accept that Gathani was the least culpable of the defendants sentenced for conspiracy to cheat and that his sentence before discount for plea should have been significantly below that of Chishti. Taking everything into account, including his personal mitigation, we do not think that a sentence any higher than 9 years before discount for plea can be justified in his case; and we consider that the appropriate sentence after discount for plea is one of 7 years.
108. That leaves the question of disqualification from acting as a company director. Mr Aaronberg's submission is that the disqualification was wrong in principle. There was no suggestion that Gathani had been involved in the formation or running of the company, and the Crown had not sought a disqualification order. Complaint is also made of the fact that the judge made the order in the first place without inviting submissions about it.
109. It may be that the judge would have taken a different view of the matter if he had invited submissions about it before the order was made. When issue was taken with the order after the event, the matter was dealt with very briefly and we can understand why he was not persuaded to change his mind. But now that full submissions have been directed to the point, we are satisfied that in Gathani's particular case there was no sufficient basis for such an order to be made. Mr Brompton did not address any argument on behalf of the Crown in support of the order.
110. We will therefore allow Gathani's appeal against sentence to the extent of (a) quashing the sentence of 8 years' imprisonment and substituting a sentence of 7 years, and (b) quashing the order for disqualification under s.2 of the Company Directors Disqualification Act 1986.

HUSSAIN

Hussain's conviction application

111. For an overview of the charge against Hussain of perverting the course of justice, we refer to paras [20] to [25] above.
112. The grounds of Hussain's renewed application for leave to appeal against conviction may be summarised as follows: (1) the judge ought to have stayed the proceedings against Hussain in the light of the circumstances in which a Goodyear direction was sought and given in respect of McFarnon; (2) the judge wrongly excluded legitimate areas of cross-examination; (3) the judge should have accepted a submission under the first limb of Galbraith that there was no case to answer; (4) the judge was wrong to allow cross-examination of Hussain by the co-defendant Bibi about the fact that Hussain had been charged with conspiracy to cheat (a count on which the Crown decided not to proceed against her following the pleas by McFarnon and Conroy); and (5) the judge was wrong to allow cross-examination of Hussain about the previous convictions of Dilawar Ravjani. The grounds of appeal are independent of the judge's summing up, which in this case is not criticised.

The Goodyear indication

113. On 6 September 2011, at the beginning of trial 2, the judge was invited to give a Goodyear ([2005] 2 Cr App R 20) indication as to the maximum sentence McFarnon would receive if he were to plead guilty to an offence of fraudulent trading on a written basis of plea put forward on his behalf. For present purposes the key feature of that basis of plea was paragraph 8, which stated:

"The only financial remuneration given to the defendant was his monthly salary of £8,000. He was entitled to a bonus payment for recovering debts of the original UD which had been undertaken by agreement with the administrators, Ernst & Young. It was the understanding of the defendant that the payment of £50,000 in cash, seized from the defendant upon his arrest, was a bonus payment and he accepted it as such".

114. The Crown's case against Hussain was that the sum of £50,000 seized from McFarnon on his arrest was a corrupt payment and that Hussain had been involved in the creation of false documents designed to show that it was a legitimate bonus payment. That case was therefore wholly contrary to the basis of plea put forward by McFarnon.
115. The Crown was nevertheless prepared for McFarnon to be sentenced on the basis of plea he put forward. Its stance was explained in these terms in a written response to the basis of plea:

"The Crown has considered the 'basis of plea' advanced on behalf of McFarnon. The Crown does not accept the basis advanced. The generality of the Crown's case remains as set out in the Crown's 'opening note'. In particular, the Crown does not accept that the payment of £50,000 was for a legitimate purpose. However, for the abovementioned reasons and for the purposes of sentencing Mr McFarnon only, the Crown will not seek to litigate the differences between the assertions on the basis of plea and the Crown's case. The Crown will be content for Mr McFarnon to be sentenced on the 'basis of plea' advanced."

116. In ruling that he would give the indication sought, the judge said that he had considered quite carefully whether he should adopt that course in a multi-handed case, because difficulties can and do arise where indications are given in circumstances where other defendants go on to contest the matter and issues arise as to fairness. He referred, however, to the "variegated nature" of the indictment in this case and to the hypothesis put forward for the purposes of the indication, namely a reduction in the case of McFarnon to a charge of fraudulent trading. He continued (at 2E-H):

"I think I am able to give an indication, but it must be understood that the indication is entirely confined to the Defendant John McFarnon. Nothing should be read in to it by or on behalf of any other Defendant that the documents which have been helpfully exchanged between the Crown and Mr McFarnon's Counsel … as to the basis of plea, helpful though they are to the sentencing process and helpful they have been to me in reaching my decision, can have really no bearing at all on the course of the trial.

An indication of sentence is just that. It is an indication by the Judge that if the Defendant to whom the indication is given decides to plead guilty at this particular time, that is the sentence maximum which he can expect at that time. It does not give any authority to or imprimatur to any exchange of assertions between the parties. That is my understanding of the law, and certainly so far as this case that is the way in which the indication is given."

117. This was followed, on 9 September, by a Goodyear indication in respect of Conroy, again on a written basis of plea (though one that did not refer to the £50,000), and again in circumstances where the Crown made clear in a written response that it did not accept the basis of plea but was content for Conroy to be sentenced on it. Thereafter McFarnon and Conroy pleaded guilty to fraudulent trading.
118. After various adjournments, on 26 September the judge heard an application on behalf of Hussain (supported on behalf of Bibi) that the proceedings should be stayed on grounds of abuse of process. The relevant part of the submissions was founded on the argument that the Crown should not be allowed to proceed against Hussain after it had not disputed a basis of plea by McFarnon which was fundamentally at variance with the case it sought to advance against her. The judge refused the application. We do not have a transcript of his ruling but we are told in the respondent's notice that he concluded that the application was misconceived.
119. The submissions advanced before us by Mr Barnes QC on behalf of Hussain were that a Goodyear indication should not have been sought or given in the cases of Conroy and McFarnon when there was no agreement between the Crown and defence on crucial issues of fact, and that such an indication should not have been given without consideration of the position of Hussain and inviting submissions on her behalf. Having accepted that the other defendants could be sentenced on a basis of plea that asserted in the case of McFarnon at least (Mr Barnes said the point also applied to Conroy) that the payment of £50,000 to McFarnon was a legitimate bonus payment, the Crown should not have been allowed to assert the contrary in the case of Hussain.
120. We have no reason to doubt that the Crown had sound reasons for accepting pleas by McFarnon and Conroy to fraudulent trading. There may also have been sound reasons for deciding not to litigate many of the differences between their bases of plea and the Crown's case. It was, however, unsatisfactory to acquiesce in McFarnon being sentenced on the basis that the £50,000 was a legitimate bonus, in circumstances where a central feature of the Crown's case against Hussain was that the sum was a corrupt payment. Although the Crown submitted, and the judge must have accepted, that the status of the £50,000 was not material for the purposes of sentencing McFarnon in view of the scale of the fraudulent trading in which he was admitting participation, it was nevertheless undesirable for the point to pass without active challenge in the case of one defendant while being actively pursued in the case of another.
121. We are satisfied, however, that the circumstances did not arguably give rise to an abuse of process. The Crown made clear in its submissions on the Goodyear indication that it did not accept that the £50,000 was a legitimate payment: there was no inconsistency in its stance on that point. Similarly, the judge made clear that what was set out in the basis of plea was relevant only to the maximum sentence that McFarnon could expect and had no bearing on the continuing trial. Those remarks show that in deciding to give the indication he had due regard to the interests of the other defendants. Fairness did not require him to hear submissions on behalf of Hussain before deciding to give the indication (though it appears that counsel for Hussain did in fact submit in advance of the Goodyear indication that if the Crown accepted the legitimacy of the £50,000 in relation to McFarnon it could not contend in relation to Hussain that the sum was illegitimate). The Goodyear procedure was operated correctly. What happened did not make it unfair for the Crown to proceed with its case against Hussain.
122. We have focused above on the Goodyear indication given in respect of McFarnon because we can discern no separate point in relation to the indication given in respect of Conroy. In any event our conclusion in relation to the McFarnon indication applies a fortiori in relation to the Conroy indication.

Curtailment of cross-examination

123. Mr Barnes accepted that a trial judge has considerable discretion as to how far he allows defence cross-examination of prosecution witnesses but he submitted that the defence was wrongly precluded from pursuing legitimate issues in cross-examination which were central to Hussain's defence. Her case was that she ran Property Management Services but had nothing to do with any of the other companies in the Ravjani group. It was central to that case that she had nothing to do with the affairs of Unique Distribution (where her role was simply that of a nominal director) and had nothing to do with the banking affairs of the companies. Four areas of cross-examination relating to those matters are said to have been wrongly excluded, and it is also said that the judge's attitude in curtailing such cross-examination unfairly conveyed to the jury that the defence were wasting time or not facing up to important issues by avoiding them. The four areas were these:

i) Cross-examination by reference to a small bundle of documents directed at showing that Hussain was not involved in the acquisition of Unique Distribution or in its later operators or VAT returns.

ii) Cross-examination of a Mr Puddephatt, a witness from Barclays Bank (with which all the Ravjani companies held accounts), by reference to another small bundle of documents, about what were said to have been the all-pervasive roles of Dilawar Ravjani and Chishti in relation to the banking business of the Ravjani companies and the absence of any involvement on the part of Hussain.

iii) Cross-examination of a Customs officer about the board minutes of Unique Distribution dated 3 May 2006 (proximate in time to the minutes alleged to have been falsely created in respect of 1-2 May).

iv) Cross-examination of the Customs officer who had conducted the interviews with Hussain. The judge took the view that the questions and answers stood for themselves but it is submitted that the defence were entitled to elicit clarification of points favourable to Hussain, so that the answers would stand as part of the Crown's case, and to focus on specific passages in what were lengthy and discursive interviews.

124. The rulings complained of were made between 3 and 7 October 2011. Our papers include a transcript of only one relevant passage, on 5 October, concerning the limitation of cross-examination of a Customs officer, Mr Keegan. The respondent's notice gives further details of the live witnesses called by the Crown and the matters on which they were cross-examined. The submission made on behalf of the Crown is that the defence were given very substantial latitude in cross-examination and that the judge was entitled to draw the line he did on grounds of relevance and because much of what defence counsel was seeking to do was to comment on exhibits through cross-examination; it was open to Hussain to give evidence on the matters in question or for comment to be made by counsel in closing submissions; and, as further explained in Mr Lucas QC's written reply to Mr Barnes's skeleton argument, the defence provided the jury with a lever arch file of documents and made extensive use of them in the course of Hussain's evidence and counsel's closing submissions. Mr Barnes sought to counter that by pointing out that in the context of a fraud trial such as this it is important to build up the defence case in the course of the trial, including the use of cross-examination for that purpose, and that it is wrong to suggest that the defence should be required to wait until the defendant gives evidence or until closing submissions. He submitted that pursuit of the cross-examination in question was the right of the defence and was not dependent on the extent to which latitude might be allowed by the judge.
125. We have considered the submissions made by both sides, the material to which they have referred and, to the extent of the available transcript of 5 October 2011, the reasons given by the judge for curtailing cross-examination. We understand why Mr Barnes wished to pursue the various lines of cross-examination to which we have referred. We also understand the judge's concern, evident from the one available transcript, to avoid a witness becoming "the recipient of comment after comment after comment" (4D) and that he had already given Mr Barnes "quite a lot of latitude" (4H). We are not persuaded that the judge's rulings involved any arguable error of law or arguably exceeded the reasonable limits of judicial discretion, let alone that they resulted in practice to unfairness to Hussain or prejudice to her case. We have, moreover, seen nothing to support the suggestion that the judge dealt with the matter, on any of the occasions when it arose, in a way that conveyed an adverse impression to the jury about the defence case.

The Galbraith submission

126. At the close of the prosecution case the defence made a submission on behalf of Hussain that she had no case to answer. The judge rejected the submission in a ruling on 10 October 2011. It is contended on behalf of Hussain that he was wrong to do so.
127. Unusually, the submission was made under the first limb of Galbraith, that there was no evidence that she had committed the crime alleged against her. The way Mr Barnes explained it to us is as follows. The £50,000 had been found in McFarnon's car on 1 June 2006. The Crown accepted that in order to establish the charge against Hussain it had to prove that some action to which she was a party had occurred after that date. What was alleged was that she had directed the creation and dispatch by Bibi of the false board minutes and resolution attached to Bibi's email of 15 August 2006 (an email which was sent to Dilawar Ravjani and copied to Chishti). When it came to summing up, the judge dealt with those matters in the following two questions:

"Question 3 – Did RH direct the creation of documents i.e. the Board Meeting Minutes of UD and PMS and the UD Ordinary Resolution attached to the email sent on 15 August 2006? If yes, go to Question 4. If no, not guilty.

Question 4 – Did the creation/direction to create the Board Meeting Minutes of UD and PMS and the UD Ordinary Resolution occur after 1 June 2006. If yes, go to Question 5. If no, not guilty."

Mr Barnes submitted that at the close of the Crown's case there was no evidence to support an affirmative answer to those questions. There was no evidence that Hussain ever saw the crucial email of 15 August or was party to its creation. In his ruling the judge wrongly described the defence submission as being "essentially that there is no evidence of any act on her part which could amount to perverting the course of justice" (2C); but the submission was in fact more targeted and specific than that. The judge said that this was a circumstantial case and that the circumstances "lead to a strong suspicion that Mrs Hussain must have had something to do with the creation of the documents, whenever they were created"; but the crucial question was when were they created, and it was unhelpful to refer to "strong suspicion" when considering a Galbraith submission. The judge went on to say that the critical point was to see what Hussain said in interview when asked about these matters, and he referred to the contents of the interview of 24 January 2007 without going into detail; but he failed to indicate any passage (and there was in fact no passage) from which it could be contended that Hussain was aware of or had instigated any action to produce false documentation in relation to the £50,000 after 1 June.

128. We have considered the whole of the interview of 24 January 2007 and have noted in particular the passages to which Mr Barnes drew our specific attention. We accept the submission of Mr Lucas for the Crown that the interview, taken with the other evidence in the case, provided ample evidence at the close of the prosecution case to support an affirmative answer to the questions referred to above. It is true that the interview contains no direct evidence of a direction by Hussain to create the false documents or of involvement in their creation. But she confirmed that she had known of the payment of the £50,000 at the time when it was made. She said that it was paid as a result of a board resolution of Property & Management Services and from the company's account. She said "I just did the necessary paperwork, just signed whatever I was asked to sign", whilst leaving it to Chishti to complete the transaction. When shown the email of 15 August 2006 and attached minutes of a board meeting on 1 May 2006, she said it was documentation that followed the board meeting but she gave confused answers as to whether the meeting recorded in the minutes actually took place. She said that Bibi would have typed the minutes, and when asked how Bibi would have come to type up minutes of a meeting that did not happen she replied: "She, I told her she would be aware of, obviously she needed to make sure the paperwork was in order and I told her what was going to happen …. So she would have done it". She expressly denied that there was any meeting between 1 June and August regarding the production of the minutes, but taking into account everything she said in interview, together with the evidence that the false documents had been created in August (well after the material date) and the evidence as to Hussain's position within the company, we are satisfied that it would have been open to the jury to infer that she had acted after 1 June to direct the creation of the documents. The judge was therefore correct to reject the submission of no case.

Cross-examination about the charge of conspiracy to cheat

129. At the conclusion of Hussain's evidence in chief, counsel for the co-defendant Bibi applied to cross-examine her about a number of matters, including the fact that she had been charged with conspiracy to cheat, the facts underlying that charge, the fact that the prosecution had decided not to proceed with it, and the fact that Property & Management Services, of which she was the controlling director, received large sums of money from Future Communications which was the main vehicle for the cheat. There is some dispute before us as to whether by this stage there had emerged a cut-throat defence as between Hussain and Bibi, and as to the extent to which Hussain's evidence had been prejudicial to Bibi's interests; but we are told in the respondent's notice that the purpose of cross-examination as to Hussain's connection with the underlying fraud was to demonstrate that while she had a pressing need to create a false explanation in order to legitimise the corrupt payment to McFarnon, Bibi had no such need or motivation (as to which, however, it should be noted that the charge of conspiracy to cheat was brought long after the creation of the false documents). In any event, in a ruling on 11 October 2011 the judge allowed the application. Mr Barnes submitted that he was wrong to do so.
130. The application to the judge was put on two bases. First, reliance was placed on s.98 of the Criminal Justice Act 2003, which provides:

"98. References in this Chapter to evidence of a person's 'bad character' are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which –

(a) has to do with the alleged facts of the offence with which the defendant is charged …."

Counsel for Bibi submitted that the matters on which it was proposed to cross-examine "had to do" with the alleged facts of the charge of perverting the course of justice. The judge accepted that submission, stating (at 4H-5B):

"… It is a question of relevance and degree. The words [of s.98(a)] are very wide.

In my judgment the background to the creation of the documents certainly extends to the £50,000 and the £50,000 by link extends back to the fraud. It seems to me, although it is difficult to know where to draw the line, that there is a link of relevance here and that the words in section 98 should properly be construed to allow [counsel for Bibi] to range over this ground, subject of course to relevance, and subject to proper case management and the containment of the case."

131. The second basis on which the application was put was under s.101(1)(e) of the 2003 Act, i.e. that it was evidence of bad character which had substantial probative value in relation to an important matter in issue between Hussain and her co-defendant Bibi. In considering that point the judge referred to s.104(1) despite an apparent disavowal of reliance on that section by counsel for Bibi. The section provides that evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under s.101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant's defence. The judge made the point that, although Bibi had not yet given evidence, she had given an account in interview which was in conflict with the evidence of Hussain, and that it might be thought that truthfulness was to be an issue and that s.104 was engaged. He considered that the fact that Hussain had been charged with conspiracy was evidence of bad character (he said it was clearly "misconduct" as defined in s.112, i.e. "the commission of an offence or other reprehensible behaviour") and was capable of being evidence that Hussain had a propensity to be untruthful, and that the nature or conduct of Hussain's defence was such as to undermine Bibi's defence. That is a summary of the route by which, as it appears from the transcript, the judge reached the conclusion that evidence of the charge of conspiracy to cheat was admissible under s.101(1)(e).
132. Mr Barnes submitted that the judge was wrong in relation to both bases of the application and ruling. As to s.98, the Crown had to establish that the payment of £50,000 was corrupt but had not relied for that purpose on the matters on which counsel for Bibi sought to cross-examine Hussain. Those matters were intended to show that Hussain was guilty of an offence for which she was not standing trial or in any event would have had that effect and would have been highly prejudicial to her. The judge was wrong to say that the words of s.98(a) are very wide and he was wrong to hold that the matters in question fell within them. As to s.101(1)(e), various points are advanced, including that the judge was wrong to find that the preferring of a criminal charge which has not been proceeded with can come within the definition of "bad character"; that he was wrong to consider that such a charge can be evidence of a propensity to be untruthful; and that he was wrong to consider that the nature of Hussain's defence was such as to undermine Bibi's defence.
133. This ground does not appear to have been developed in submissions before the single judge, who does not refer to it in his reasons for refusing leave. We are nonetheless troubled by it. We think it arguable that the fact that Hussain had been charged with conspiracy to cheat was not admissible either under s.98(a) or under s.101(1)(e); and the potential prejudicial effect of evidence of the charge being placed before the jury is obvious. Part of the problem may be that the judge's ruling did not distinguish sufficiently between the charge itself and the other matters on which counsel for Bibi sought to cross-examine Hussain. We have borne in mind the observations of Sir Igor Judge P (as he then was) in R v Renda [2006] 1 Cr App R 24 as the limited circumstances in which the Court of Appeal will interfere with fact-specific judgments where the trial judge's "feel" for the case is usually the critical ingredient. We have also borne in mind that the case against Hussain was a strong one and that there may be no reason to doubt the safety of the conviction even if the cross-examination was allowed to go further than it should have done on this issue. In our judgment, however, this ground does merit consideration on a full appeal. We therefore grant leave to appeal in relation to it.

Cross-examination about the previous convictions of Dilawar Ravjani

134. Dilawar Ravjani's previous convictions for conspiracy to defraud and conspiracy to use a false instrument are set out at para [53] above. As indicated at para [54], no further details of the offences were available. They related, however, to a period before the formation of the Ravjani companies.
135. At a time when Hussain still faced a charge of conspiracy to cheat, the Crown signalled its intention to seek to rely on Dilawar Ravjani's previous convictions as part of its case against her. In the event, following the decision not to proceed against her with the charge of conspiracy to cheat but to go to trial only on the charge of perverting the course of justice, the Crown did not seek to introduce the previous convictions as part of its case. When Hussain came to give evidence, however, she was asked in evidence in chief whether, during the time when she and her brother had worked in the Ravjani companies and ending with the arrests in June 2006, she had had any cause to question her brother's integrity in relation to his involvement with the Ravjani companies. She answered in the negative. This prompted the Crown to apply to cross-examine her on her brother's previous convictions.
136. The evidence was sought to be admitted under s.100(1) of the 2003 Act, which provides in material part:

"In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if –

…

(b) it has substantial probative value in relation to a matter which –

(i) is a matter in issue in the proceedings, and

(ii) is of substantial importance in the context of the case as a whole."

137. In his ruling on 11 October 2011, the judge held that the extent to which Hussain had relied on the decisions of others in her dealings generally in Property & Management Services and in relation to the matter of the £50,000 payment, including the drawing up of the board minutes and resolutions, was an issue in the proceedings which was of substantial importance in the context of the case as a whole. He also held that it was now plain that there was going to be a cut-throat defence as between Hussain and Bibi and that credibility was a matter in issue which was of substantial importance. He held further that, since admission of the evidence of the convictions would or could assist the jury in deciding whether Hussain was truly relying on the decisions of Dilawar Ravjani in 2001 and onwards, when Dilawar was taking important decisions in setting up and helping to set up the Ravjani empire in circumstances where he had just left prison, it had substantial probative value.
138. Mr Barnes submitted that the judge was wrong to rule as he did. First, he challenged the judge's finding that the previous convictions had substantial probative value. The convictions were historic, having occurred 7 years before the period covered by the charge of perverting the course of justice. Dilawar Ravjani had never been charged with perverting the course of justice. Hussain did not claim that she acted on his instructions in relation to the £50,000. She did not assert that he was a man of good character, but simply that in the context of the Ravjani companies she had no reason to question his integrity.
139. Secondly, Mr Barnes contended that the previous convictions did not relate to a matter in issue in the proceedings, or at least not to a matter in issue that was of substantial importance. The extent to which Hussain relied on the decisions of others generally in relation to Property & Management Services was not an issue in relation to the charge of perverting the course of justice. Again, it was not her case that she acted on her brother's instructions in relation to the £50,000. As to the issue of credibility, the judge was wrong to say that this was going to be a cut-throat defence; not every issue going to credit amounts to a matter in issue in the proceedings; and any involvement on the part of Dilawar Ravjani in relation to the matters in issue was at most peripheral. It was further submitted that there was an inconsistency within the reasons given by the judge for his ruling.
140. That is only a summary of the submissions set out in the notice of appeal and in Mr Barnes's skeleton argument and as further underlined in his brief oral submissions and a written reply. We have considered all those submissions, together with the respondent's notice and Mr Lucas QC's written response to Mr Barnes's skeleton argument. We cannot see any arguable error in the judge's ruling. In our judgment the previous convictions were plainly relevant to matters in issue as identified by the judge. The judge asked himself the right questions in considering whether they were of substantial probative value in relation to those matters, and whether the matters were of substantial importance in the context of the case as a whole. These were questions that he was in the best position to answer, as the trial judge with the "feel" for the case. We are not persuaded that there was any material inconsistency in his reasoning or that he was wrong in the conclusion he reached.

Conclusion on Hussain's conviction application

141. For the reasons given above we grant Hussain leave to appeal against conviction, limited to the ground relating to the cross-examination of Hussain about the charge against her of conspiracy to cheat.

Hussain's sentence application

142. Hussain's renewed application for leave to appeal against sentence is based on two main points. First, it is submitted that a suspended sentence could and should have been imposed. Secondly, it is said that there was objectionable disparity with the sentence imposed on Chishti, in that the judge considered Chishti to be more culpable in relation to perverting the course of justice yet did not distinguish between him and Hussain in imposing a sentence of 12 months' imprisonment on each.
143. Having regard to the grant of leave to appeal against conviction, and since Hussain is no longer in custody, we have decided to adjourn the sentence application to the court hearing the conviction appeal.

BOSTON

144. Boston applies for leave to appeal against the 2 year sentence imposed on him following his plea of guilty to being knowingly concerned in the fraudulent evasion of VAT. The judge's sentencing remarks are summarised at paras [40] to [43] above.
145. In presenting the application on Boston's behalf, Mr O'Byrne QC accepted that the sentence imposed was a proper one on the information before the sentencing judge and was not in itself excessive. The application is based, however, on information which was not available to the judge as to the lack of suitable treatment facilities in prison. The issue that arises is therefore a short one and very different from any of those considered above.
146. Boston (who is now 46 years of age) was subjected to events in childhood which have been detailed in the reports before the court. He was subsequently diagnosed as suffering from post-traumatic stress disorder, with associated symptoms including depression and anxiety, and he received counselling and other assistance, including prescribed drugs. Prior to sentence he had made considerable progress and was about to move on to a recommended course of further counselling.
147. He also has a heart condition. He has had several heart attacks and has had a number of stents implanted to keep his coronary arteries open, and as a direct result he is required to take daily medication.
148. In relation to those matters the judge had before him various medical, psychological and psychiatric reports which he took carefully into account.
149. At the time when the application for leave to appeal was filed, concerns were expressed that Boston, who at that time was at HMP Wandsworth, was not receiving any form of therapy for his mental health, had not received his prescribed drugs and had not had any heart medication. The single judge, in referring the application to the full court, directed that prison and medical reports be obtained for the use of the court, in particular to address the defendant's treatment and medication.
150. A prison medical report dated 22 October 2012 recorded that Boston was admitted to HMP Wandsworth with a number of medical issues and had been transferred to HMP Sudbury on 2 October 2012. It gave a detailed list of the medications he was currently taking and gave details of the occasions when he had been seen by healthcare staff, including visits to St George's Hospital. It also stated that he had been seen by the primary care mental health team and by the prison in-reach mental health team for anxiety and depression, and that he remained under their care for the duration of his time at HMP Wandsworth.
151. A letter dated 24 October 2012 from a community psychiatric nurse within the prison in-reach team at HMP Sudbury refers to information received from Boston that prior to sentencing he was being seen by a community psychiatric nurse at the Brandon Centre and was also awaiting psychological intervention. The letter continues:

"Mr Boston is not due any leave until January 2013 and I feel that continuity of care is essential due to Mr Boston's diagnosis of Post-Traumatic Stress Disorder (PTSD) and prescribed treatment – Psychotherapy. Psychotherapy treatment is not a treatment available at HMP Sudbury and this would need to be assessed via his Community Mental Health Team, and I would envisage this therapy would involve Mr Boston engaging over a period of years. During Mr Boston's sentence at HMP Sudbury I can only support him with maintaining his coping strategies to minimize an escalation in his symptoms."

152. The issue of psychotherapy treatment is also addressed in a probation officer's report dated 1 October 2012, the day before Boston's transfer from HMP Wandsworth to HMP Sudbury. In her conclusion the officer states:

"Mr Boston is at the early stage of a relatively short sentence with the possibility of early release – on tag – early next year. He has various medical problems which are being managed by staff from the Primary Health Care team. His mental health problems are also being treated but Mr Boston feels he is not receiving the same level of support for his PTSD that he claims to receive in the community. Having said this, Mr Boston has also made it abundantly clear that it had taken him over a year to build up trust with his community based counsellor / occupational therapist but in spite of this, he had still not managed to begin to disclose the issues which seem to cause him so much distress. It seems, therefore, that even if it were possible for Mr Boston to engage in counselling in custody there may not be sufficient time for him to build the trusting relationship he would say is necessary for the counselling process."

153. In the light of that material, the one issue pursued concerns the lack of facilities at HMP Sudbury for any psychotherapy treatment that Boston may require. It is submitted that if this information had been available to the judge, who was extremely sympathetic in relation to the defendant's physical and psychiatric ill-health, the suggestion of a suspended sentence order, which the judge rejected, would have been more attractive: the judge assumed that adequate treatment would be available. The failure to provide adequate treatment is submitted to have had a disproportionately harsh effect upon the defendant, such as now to render the sentence of imprisonment manifestly excessive in all the circumstances.
154. It seems to us that the real problem is not so much the lack of relevant facilities at HMP Sudbury as the effect that a custodial sentence has had in breaking the continuity of counselling or treatment by Boston's community based counsellor or therapist. As is clear from the probation officer's report, the requisite process is a lengthy one and sufficient time might not be available to build up the necessary relationship afresh even if appropriate facilities were available in prison. The question is whether a delay in the process in which Boston was already engaged before he was sentenced to immediate imprisonment – a process which can be resumed once he is released from prison – is so serious as to cause the sentence to have the disproportionately harsh effect contended for by Mr O'Byrne and to render the sentence manifestly excessive. We are not persuaded by Mr O'Byrne's argument to that effect. The sentence of 2 years' imprisonment was not only an otherwise appropriate sentence but was, in our judgment, a merciful sentence which took generous account of Boston's medical and psychiatric problems. The fact that psychotherapy treatment cannot be continued in prison and that its resumption will be delayed until his release may indeed cause some additional hardship, but the point is not of sufficient weight to swing the balance in favour of a suspended sentence order or to render the sentence arguably excessive.
155. Boston's application for leave to appeal against sentence is therefore refused.

CONCLUSION

156. For the reasons given above:

i) Dilawar Ravjani's renewed applications for leave to appeal against conviction and sentence are refused;

ii) Riaz's renewed applications for leave to appeal against conviction and sentence are refused;

iii) Gathani's appeal against sentence is allowed, in that (a) the sentence of 8 years' imprisonment is quashed and a sentence of 7 years' imprisonment is substituted, and (b) the order for disqualification under s.2 of the Company Directors Disqualification Act 1986 is quashed;

iv) Hussain is granted limited leave to appeal against conviction, on the ground considered at paras [129] to [133] above; her renewed application for leave to appeal against sentence is adjourned to the court hearing the appeal against conviction; and we grant a representation order for leading counsel only, to cover the hearing before us and the hearing of the appeal; and

v) Boston's application for leave to appeal against sentence is refused.

157. Requests for representation orders were also made by Mr Webster and Mr Marshall-Andrews. We repeat our expression of gratitude for their assistance but, having refused their applications for leave to appeal, we must refuse those requests.
158. There is an outstanding issue in the case of Boston as to whether the court should make a recovery of defence costs order against him. We are told that the Criminal Appeal Office has referred the case to the Special Investigation Unit. We will adjourn consideration of the issue pending a report from the Unit and any representations in response. It is open to question whether the effect of regulation 6(1) of the Criminal Defence Service (Contribution Orders) Regulations 2009 is that this court is prevented from making an order where there has been a means assessment in the Crown Court. If necessary, that is a point on which those representing Boston may wish to address the court.