Alexander & Anor, R v

Conspiracy to defraud does not require proof that lies were told to the intended victims. A participant may be convicted where the evidence establishes knowing participation in a dishonest scheme, even if the prosecution cannot prove knowledge of every deception used by a co-conspirator.

Evidence of earlier substantially similar dealings may be relevant to prove knowledge and dishonesty during the charged conspiracy. A post-verdict communication from a juror to counsel does not by itself make a conviction unsafe. The question is whether a fair-minded and informed observer would conclude that there was a real possibility of tribunal bias.

Following a five-and-a-half-month trial at Southwark Crown Court, Alexander, Andrews and Steen were convicted of conspiracy to defraud through an advance-fee commercial lending scheme. Alexander received two years’ imprisonment and Steen six years’ imprisonment. Andrews abandoned his appeal.

Alexander and Steen appealed on a ground arising from a post-verdict approach by the jury foreman to leading prosecuting counsel. They also sought to advance further conviction grounds. Steen separately sought leave to appeal against sentence.

The principal issues were whether the evidence and summing-up justified Alexander’s conviction, whether the jury should have been discharged, and whether the foreman’s post-verdict communications created an objectively apparent risk of bias.

1. The appeals against conviction were dismissed. Leave was refused for Alexander’s additional grounds, and Steen’s additional conviction grounds were rejected.

2. Conspiracy to defraud did not require the Crown to prove that lies had been told to the applicants. In Steen’s case, the particular evidence made knowledge of Andrews’s deceptions material. Alexander, however, had been a partner in the small brokerage business and remained actively involved after leaving the partnership. The jury could rely on evidence that he knew no loans were made, knew of complaints, prepared records showing the business income, and continued to participate while fees were earned. The Crown therefore did not have to prove that he knew every lie told by Andrews.

3. The prosecution could explore unsuccessful loan applications before the charged period. That evidence was relevant circumstantial evidence from which the jury could infer that the defendants knew applicants could not satisfy the collateral-bond condition, yet continued to obtain fees. The judge was entitled to refuse to discharge the jury. The same conclusion applied to the complaint concerning the Dooley letter: the judge applied the proper prejudice-based test and his discretionary decision disclosed no unfairness.

4. Applying the objective test in In re Medicaments [2001] 1 WLR 700, the court held that a fair-minded and informed observer would not find a real possibility of bias. The foreman’s communications were made 11 days after the verdict. They showed possible personal attraction to prosecuting counsel, but did not prove partiality towards the prosecution case or an unsafe verdict. The remaining 11 jurors were unanimous, the evidence supported the verdicts, and there was no proof that the foreman or jury had departed from their duty of impartiality.

5. Steen’s proposed sentence appeal was without merit. The judge had properly assessed relative culpability and mitigation. The six-year sentence for major, remorseless fraud was correct, and leave to appeal against sentence was refused.

• Court of Appeal (Criminal Division) — In [2004] EWCA Crim 2341, dismissed Alexander’s and Steen’s appeals against conviction; refused Alexander leave on further conviction grounds and refused Steen leave to appeal against sentence.
• Southwark Crown Court — On 23 June 2003, after trial before Judge Goymer, convicted Alexander, Andrews and Steen of conspiracy to defraud. They were sentenced respectively to two, five and six years’ imprisonment.