England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		19th May 2016

1. THE RECORDER: On 3rd March 2015, at the Liverpool Crown Court, the applicant was convicted by a jury of the offence of conspiracy to defraud. The trial judge, His Honour Judge Menary QC, sentenced him to eight years' imprisonment.
2. The applicant has sought leave to appeal conviction and sentence, setting out in his own wording the following grounds: (a) he was not adequately represented through solicitors and counsel; (b) the judge showed favour to the prosecution and undermined the applicant when he gave evidence; (c) a representative or TAPA (The Advertising Protection Agency) was not called and certain letters sent to the Merseyside Police were not adduced in evidence; (d) the judge should not have allowed the applicant's previous convictions to be put before a jury; (e) the judge should not have allowed the guilty plea of Doran, a co-conspirator, to be put before the jury; (f) the jury did not have sufficient evidence concerning the DTI investigation before it; (g) the applicant also seeks to call fresh evidence from the proposed witnesses whose statements have been filed at this court.
3. The facts. The applicant was the proprietor of three companies: BCS Multimedia, PFA Media UK Ltd and ESM Community Media. Liverpool Trading Standards and the Office of Fair Trading received a number of complaints about those companies from members of the public, following which Merseyside Police launched an investigation. Put simply, the companies were used to carry out a publishing fraud: they claimed to be working for the emergency services and to sell advertising space in widely distributed magazines. Neither of these claims were in fact true. Proofs and copies of the magazines were of extremely poor quality and many invoices for the work were inflated.
4. Liverpool Trading Standards and the Office of Fair Trading received several hundred complaints in relation to the three companies and in January 2012 the Advertising Protection Agency produced a report containing complaints about BCS Multimedia from over 100 victims, which was circulated to a number of authorities including the Merseyside Police.
5. Enquiries also revealed that the applicant had a debt collection business called Commercial, Financial and Legal Debt Recovery and Account Solutions. Many of the small businesses who had refused to pay for the advertising found themselves on the receiving end of threats of court action and visits to their business premises or home addresses by bailiffs through this company.
6. The applicant was arrested and interviewed in May of 2012. At the trial against the three defendants, that is the applicant, Darryl Shellard and Lee Doran, the prosecution case was that between April 2005 and May 2012 the applicant and with those others conspired together to defraud customers of the applicant's three companies by causing or encouraging sales representatives to make false claims concerning the company's magazines and their distribution.
7. The defence case was that the applicant did not know that his sales representatives were making false claims and misleading customers, and indeed he gave evidence to highlight that during much of this period he suffered, sadly, with ill health and was not present in the way that other people were, in particular Mr Shellard.
8. The issue for the jury was whether the applicant was indeed involved in knowingly and dishonestly misleading customers.
9. Lee Doran, the third defendant, pleaded guilty to the conspiracy to defraud and was sentenced in due course for that.
10. In considering leave to appeal, the single judge stated this:

"I have considered the papers in your case and your grounds of appeal. Your application wholly lacks merit. I make it clear that I have spent a huge amount of time reading every word of your long and repetitive letters together with the other documents sent with them."

11. He then goes on to deal with certain of the particular prime complaints:

"You say that you were badly represented. On the contrary, on a detailed reading of the papers, I can see that you were expertly advised and represented throughout. Your claim that you met only rarely and for limited times with your barrister pre-trial is just untrue. Your claim that your legal claim did not explore unused material is likewise untrue. You say that witnesses were not properly cross-examined but that is just your perception after the event. In fact the cross-examination went to the heart of the evidence of each witness and was based upon a proper understanding of the case against you."

12. He continues:

"There was a mass of evidence that officers and employees of your companies were making false representations; following Doran's plea of guilty the only core issue in the case was whether you were a part of that dishonesty."

13. He continues:

"You complain about your previous convictions being placed before the jury. You have had this explained to you before; the law now allows evidence of previous convictions to be adduced and there is absolutely no legal basis for asserting that the judge was wrong in this respect.

You also assert the witnesses were not called who should have been called on your behalf. Looking at the eleven forms W, which you have provided, I can well understand why witnesses were not called ...

You also complain about the judge. Your complaint is unfounded. A judge's role includes being robust when appropriate. I do not know whether you genuinely believe that the judge showed favour to the prosecution and undermined your case - particularly when you gave evidence; that is what you now assert."

14. The single judge continued, dealing with the new witnesses, saying some of it was "wholly peripheral", some of it was fraught with danger. He continued:

"You say the jury should not have known of Doran's plea and that this prejudiced you. There is no basis for saying that the evidence of Doran's admitted guilt should not go before the jury. The limited value of this plea in the case against you was made clear to the jury."

15. As to the final complaints the single judge said this:

"You complain that the TAPA evidence was not used; this was, from your point of view, material which was better left untouched; it was neutral in any event; the evidence of fraudulent selling of advertising was very strong; the issue was whether you knew of it. As to the DTI investigation, all proper points were made and there was no further helpful material. The jury knew that the second DTI investigation was halted by reason of your ill health and all issues which you raise were canvassed properly."

16. The single judge concluded:

"Your conviction is safe. Your various complaints are all without merit; a jury properly convicted you after a fair trial."

17. This court has looked again at all the material submitted in this case. The court has especially looked at material submitted recently in response to the refusal of leave. This material does not significantly add to any of the issues which have already been dealt with.
18. It is clear that it was correct in law for the guilty plea of the co-defendant Doran to be put before the jury. The trial thereafter then concentrated on whether the conspiracy as pleaded to by Doran was known to the applicant and participated in by him, as indeed was the case of the co-accused Shellard. The trial began on 14th January 2015 and the jury returned verdicts on the two defendants on 3rd March 2015. In admitting the applicant's previous convictions, the judge followed the correct principles and the ruling was within his judicial discretion. The jury had a large amount of evidence to consider: this included the evidence of the applicant and much documentation. The summing-up cannot be faulted: it lasted over four days and was split with legal directions on the first day. The verdict of guilty on the applicant to the offence of conspiracy to defraud is safe.
19. The court read the transcript submitted to us, of which complaint is made of bias and interference by the judge. There is nothing in this complaint. The judge's questions were aimed at clarification of the answers given by the applicant for the benefit of the jury.
20. The court has read the statements or letters which are sought to be fresh evidence in the trial. These are principally satisfied clients of the applicant's companies. The thrust of much of this evidence is that various companies had a legitimate trade as well as that which formed the subject of the alleged conspiracy. This evidence was largely available to be put before the jury at the trial. We have read the response to the applicant's grounds of appeal settled by the applicant's trial counsel and the applicant has made comments in reply to it. We are satisfied that the defence case for the applicant at the trial was put properly and as fully as the applicant wished it to be put. There is no sustainable ground of complaint or basis to allow the calling of fresh evidence at this stage.
21. In sentencing the applicant, the judge followed the correct guidelines. The loss caused by the whole conspiracy was £4.6 million. The guideline sentence for fraud causing £1 million loss to the victims has a starting point of seven years, with a bracket of five to eight years' imprisonment. The applicant's previous convictions aggravated the sentence, and the judge rightly put into the balance matters of personal mitigation, such as the fact that at the date of sentence the applicant was suffering ill health and was a married man with two children.
22. In conclusion, we agree with the single judge who refused leave to the applicant to appeal the conviction and sentence in this case. For the reasons expressed by him and for the reasons set out above, we refuse the application.
23. The applicant was warned that if he pursued this application to the full court he may be made subject to a loss of time order. He has been offered the opportunity to make representations about that, but none has been received. It is in fact our view that this application is wholly without merit and we are of the view that a loss of time order should be made in the amount of 28 days in this case.