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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Cole, R v [2016] EWCA Crim 1745 (3 November 2016)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/1745.html
Cite as: [2016] EWCA Crim 1745
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CRIMINAL DIVISION
Strand London, WC2A 2LL |
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B e f o r e :
MR JUSTICE HOLROYDE
MRS JUSTICE CHEEMA-GRUBB DBE
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| R E G I N A | ||
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| IAN NIGEL DUNCAN COLE |
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- MR JUSTICE HOLROYDE: On 10th September 2012 in the Crown Court at Manchester (Minshull Street), this applicant, Mr Ian Cole, pleaded guilty to four counts alleging offences of entering or becoming concerned in a money laundering arrangement, contrary to section 328 of the Proceeds of Crime Act 2002 and one count alleging an offence of making or supplying articles for use in fraud, contrary to section 7 of the Fraud Act 2006. Those counts were contained in indictment T20110808 which was listed for trial on the day those pleas were entered.
- On 19th November 2012, at the same court, the applicant pleaded guilty on indictment T20107455 to an offence of doing acts tending and intended to pervert the course of public justice. On that date, 19th November 2012, he was sentenced by His Honour Judge Foster QC to concurrent terms of 54 months' imprisonment on each of the five counts on indictment T20110808 and a consecutive term of 12 months' imprisonment on indictment T20107455. Thus his total sentence was one of 5 years 6 months' imprisonment. He was also ordered to be disqualified for a period of 7 years from acting as a company director.
- The applicant initially applied for leave to appeal against his total sentence. That application was refused by the single judge and not pursued further. It therefore came to an end in about February 2014.
- Confiscation proceedings took place pursuant to the provisions of the Proceeds of Crime Act 2002. In the course of those proceedings there was a hearing before Judge Foster in late 2014, at which certain evidence was given. The proceedings culminated on 8th January 2015 when the applicant, who by then had dispensed with his legal representatives and was acting in person, and the prosecution, jointly invited the learned judge to make a confiscation order in terms which were agreed between them. The judge was satisfied it was right to do so. He therefore made an order in the agreed terms. The applicant's benefit was certified at a sum in excess of £4,300,000. A confiscation order was made in the available amount of £823,623.
- The case now comes before this court on renewed applications for an extension of time of about 2 years 9 months to apply for leave to appeal against conviction, and for an extension of time of about 2 months to apply for leave to appeal against the confiscation order to which we have referred. Each of those applications was initially considered by the single judge, Lewis J, who gave very clear written reasons for his conclusions that there was no merit in the proposed grounds of appeal and no adequate explanation for the delay in making the applications. The applications are now renewed, and the applicant has the advantage of representation today by counsel Mr Barraclough, to whom the court is grateful. He has, if we may say so, assisted the court greatly by bringing order to a mass of documentation provided by the applicant whilst acting in person. We are particularly grateful because, as we understand it, Mr Barraclough acts pro bono.
- For reasons which will become apparent it is not necessary to go into any detail about the offences which the applicant admitted, or about the case which he might have advanced had he maintained his not guilty pleas. Suffice it to say that the money laundering and fraud offences arose from his position as the owner or controller of various businesses which were involved in car hire and the hire purchase of vehicles. There was evidence that he had employed a large number of known criminals. He had used his position as a businessman to assist them in concealing the origins of monies which they had obtained through the distribution of controlled drugs. It was not alleged that the applicant himself had been involved in supplying drugs. It was however alleged that he was well aware of the involvement, in particular, of a man called Farid in the supply of drugs on a very substantial scale. The applicant had assisted Farid in purchasing various properties, in obtaining fraudulent mortgages and in facilitating the movement of a large sum of money obtained from drug dealing through one of the applicant's companies.
- The court, as we have said, has received voluminous grounds of appeal of the applicant's own composition together with a large quantity of associated documents. Amongst other things the applicant has provided the court with details of a complaint which he made against his trial counsel and solicitors and their responses to that complaint. He has separately waived privilege in respect of certain criticisms he makes of solicitors and counsel who, for a time, represented him in the confiscation proceedings, and we have seen the solicitor's response to those criticisms.
- Mr Barraclough has very helpfully clarified which grounds are pursued and which are not. He makes no submissions in relation to the confiscation order, to which we will return shortly. He pursues the application for the long extension of time necessary to seek leave to appeal against conviction. He does so however in terms which effectively reduce the several grounds of appeal to one.
- The sole ground of appeal can be summarised in this way. The applicant's case is that his guilty pleas to the charges on indictment T20110808 were not voluntary admissions of guilt. His case is that he wished to deny all of the criminal activity alleged against him in that indictment. However, the account which he would wish to give in order to explain the evidence against him would, he contends, involve his mentioning matters which would be likely to incur the grave displeasure of a number of serious criminals and would thereby expose him and his family to serious risk.
- Although on paper he sought to argue otherwise, we understand that the applicant now accepts the advice he was given at the time, that the dilemma which he faced could not realistically be resolved by the taking of any steps such as an application for separate trials or for a hearing in camera, or for a stay of the proceedings. Because he now accepts that advice, the applicant no longer pursues the serious allegations which he had until very recently made with some vehemence against his former legal representatives.
- As Mr Barraclough now puts the argument, it is this: for reasons which do not necessarily involve any criticism of anyone, the prosecution were not able to provide adequate disclosure, and the absence of adequate disclosure made it impossible for the applicant either to put forward his defence most effectively or perhaps to avoid prosecution altogether by persuading the Crown Prosecution Service that it would be unjust to continue the charges against him.
- In our view, the applicant faces two insuperable obstacles to pursing that ground of appeal. First, we are unable to accept the premise of his argument, namely that the guilty pleas which he entered on 10th September 2012 were not voluntary admissions of guilt. We understand why he says that he had a difficult decision to make as to whether to contest his trial or to plead guilty. But even accepting, for the purposes of the argument, that the account which he says he would have wished to put forward was correct, there was, in our view, nothing exceptional about that difficulty. He was represented by a highly experienced team of Queen's Counsel, junior counsel and solicitors. The documents which he has provided to this court show plainly that he was advised, in our assessment entirely realistically, that for him to put forward the account which he says he would have wished to put forward would not only incur the risk to which we have referred but also, and importantly, would be positively damaging to his defence. He was told, moreover, that discussions between prosecution and defence counsel had reached the stage that guilty pleas to the five counts which we have mentioned would be acceptable to the prosecution, who would not then pursue the several other counts on the indictment against the applicant. He was further told that discussions had led also to the position that if the applicant were to enter those guilty pleas, the counts against two members of his close family would be left to lie on the file. It was in those circumstances that the applicant, after due time for reflection, chose to admit his guilt of the five offences.
- In our judgment, whatever complaints he may now make about inadequate disclosure can have had no relevance to that decision. The reason why we take that view is simply stated. That which he says he would have wished to obtain by way of disclosure could never have been anything more than support for or confirmation of his own account of matters, all of which were peculiarly within his own knowledge. Thus, even assuming in the applicant's favour that everything he says is correct and even assuming that a disclosure process would have elicited support or confirmation for some or all of it, it would not have produced anything which was not already within the knowledge of the applicant. It would therefore not have produced anything which he could not have advanced, if he had chosen to do so, when instead he entered his guilty pleas.
- Nor, in our view, can any questions relating to disclosure or lack of disclosure have affected the attitude of the prosecution to pursuing the case against the applicant, because - as was later confirmed in the course of the confiscation proceedings - the prosecution flatly rejected the appellant's account that he had never been involved in any criminal activity.
- For those reasons there is nothing in the material before us which provides even an arguable basis for the ground of appeal which the applicant now seeks to put forward. There is no arguable exceptional reason which would justify the court in going behind the guilty pleas which the applicant entered.
- The second obstacle which the applicant faces is that, in our view, there is no adequate explanation for the very long delay in giving notice of a wish to appeal against conviction. We have mentioned that in late 2014 certain evidence was given in the course of the confiscation proceedings. We understand that the applicant, for his part, regards that evidence as being strongly supportive of his appeal. But even if he were correct in that view, which in our view he is not, it does not explain the passage of several more months before he gave notice of appeal. We recognise the practical difficulties faced by someone who is acting in person whilst a serving prisoner. But in the circumstances of this case, those difficulties do not explain the delay. As we have said, all the matters which the applicant now contends that he would have wished to put forward were matters within his own knowledge. In view of all that the applicant has said and written about his case we are quite unable to accept the proposition, advanced by him at one stage in writing, that he had only very recently realised that he would be entitled to initiate an appeal without engaging a solicitor. Thus, we find no compelling reason why it is necessary or appropriate in the interests of justice to grant the very long extension of time.
- For those reasons the ground of appeal against conviction, even as reformulated by Mr Barraclough and even when presented by him as clearly as it has been, is not arguable. There would, of course, be no purpose in granting an extension of time where the ultimate appeal would be doomed to failure.
- We turn briefly to the application for an extension of time in relation to the proposed appeal against the confiscation order. Mr Barraclough helpfully told us, at the outset of hearing, that he understood that a notice of abandonment of this application had been sent to the court. We have not seen any confirmation that that has been done and for the avoidance of doubt we therefore deal briefly with the matters raised by the written applications.
- The applicant, in our view, faces here a similar difficulty to that which we have identified as the first obstacle to his proposed appeal against conviction. The confiscation order was an order made with the agreement of the applicant. He agreed to it after the evidence which he regards as important had been given at a hearing before Judge Foster in late 2014. He agreed to it through his advocate in open court. Moreover, he caused his advocate to lodge with the court a document entitled: "Defence clarification documentation to be kept on the Crown Court file". That document, as it seems to us, was intended to ensure that Mr Cole's wish to appeal against conviction would not be undermined or jeopardised if he agreed to the confiscation order. The document conspicuously did not say that he did not in truth agree to the confiscation order being made. On the contrary, the document refers to "a pragmatic solution" being agreed and describes the order in the following terms:
- Finally, we think it important to note that the documents provided to this court by the applicant show clearly that his priority in the confiscation proceedings was to avoid a finding that he had hidden assets. The effect of the agreed order was to avoid any risk of such a finding.
- Those being the circumstances in which the applicant agreed to the order, we can see no basis now for permitting him to challenge an order which he chose not to contest at the time and which was made with his agreement.
- We would add finally this. We are in any event not persuaded that there is any merit in the grounds which the applicant would have wished to put forward. It seems to us that in his efforts to apply the relevant law he has failed to acknowledge the basis on which the prosecution case was advanced against him.
- For those reasons both of the applications fail and are refused.
"The agreed consent order was... an attempt to obtain the most beneficial outcome for the defendant that the circumstances faced in the proceedings at the time would allow."