Kumar, R v

A summing-up need not rehearse every detail of a lengthy and interrupted trial. It must fairly and clearly identify the essential issues and the parties’ cases. A conviction is not unsafe because the judge omitted peripheral detail where the jury could understand the real issue and the remaining evidence made the case overwhelming.

A sham is an act or document intended to present legal rights or a legal situation different from the reality. Lawful tax avoidance, including arrangements intended to reduce tax, is distinct from dishonest tax evasion by deliberate lies or subterfuge designed to conceal the true taxable position.

The respondent was convicted at Blackfriars Crown Court of conspiring dishonestly to cheat the Public Revenue. The alleged conspiracy used purported occupational pension schemes to obtain early access to pension funds without tax. It involved false employment documentation and purported annuity arrangements known as Quebec and Fidelitas.

He appealed against conviction, contending that the trial judge’s summing-up inadequately addressed the alleged sham annuities, the differences between the arrangements, client evidence, documents not connected to him, and his defence to the indictment’s particulars. The central issue was whether any deficiencies in the summing-up rendered the conviction unsafe.

1. Appeal dismissed. The conviction was safe. The court held that the judge had fairly and clearly concentrated on the essentials of a long and interrupted trial. Brevity in a summing-up is a virtue where it does not prevent the jury from understanding the real issues.

2. The judge’s general direction on sham was correct. A sham concerns an act or document intended to give the appearance of legal rights or a legal situation different from the true one. The court approved the direction distinguishing lawful tax avoidance from dishonest tax evasion by lies and subterfuge. The meaning of sham was correctly drawn from Snook v West Riding Investments Ltd [1967] 2 QB 786.

3. The Crown alleged that the sham concerned the purported annuities, not the Fidelitas trusts or the other structures through which money passed. The judge therefore did not need to give separate, detailed directions on the mechanics of Quebec and Fidelitas, or on the Bank of Nova Scotia structures. The jury could not have failed to understand that the issue was whether the annuity arrangements were genuine and whether the respondent knew their true character.

4. The decisive evidence concerned the purported employment letters used to transfer pension funds into Brokerage and Ashgaine. They represented clients as employees despite the absence of real employment. The respondent signed many of them. The court considered the discrepancy between the letters and reality so stark that an honest person could not have held the asserted belief that a contract and capacity to work were sufficient. That evidence alone made the conviction manifestly safe.

5. Although a clearer reminder that the respondent was not connected with the presentation document and side agreements might have been preferable, there was no realistic basis on which the jury would have used those documents against him. In any event, other evidence of the sham character of the Quebec annuities was substantial. None of the alleged omissions undermined the safety of the conviction.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction.
• Blackfriars Crown Court — convicted the respondent of conspiracy to cheat the Public Revenue on 5 March 2004 and sentenced him to four years’ imprisonment on 26 April 2004.