Cushnie & Anor, R v

Verdicts on separate conspiracy counts are unsafe for inconsistency only where they are logically irreconcilable and cannot sensibly be explained consistently with the conviction’s safety. Differences in victims and the means of deception may permit conviction on one count and acquittal on another.

Particulars in a conspiracy-to-defraud indictment identify the case and overt acts relied on. They do not necessarily constitute essential ingredients which must all be proved. A unanimity direction on particulars is required only in the comparatively rare case where there is a real risk of jury disagreement about proof of an ingredient.

For sentencing, an earlier phase of a continuous course of fraud will ordinarily be reflected by concurrent rather than consecutive sentences.

Cushnie and Clough were directors involved in businesses within the Normandy and Versailles groups. Clough pleaded guilty to fraudulent trading and to conspiracies concerning the Versailles Group and money provided by investors known as Traders. Cushnie was acquitted of the Versailles conspiracy but convicted after trial of the separate Traders conspiracy.

Both men were sentenced at the Crown Court at Southwark to terms totalling six years’ imprisonment. Cushnie sought to challenge his conviction and sentence. He argued that the verdicts were inconsistent and that the Crown’s later stance towards Clough as a witness in Black’s trial made his conviction unsafe. Clough challenged his sentence, particularly the consecutive term for the earlier Normandy fraud.

1. Cushnie’s applications were dismissed. The verdicts were not logically inconsistent. The two conspiracy counts concerned different victim groups and different means of fraud. The jury could therefore be sure that Cushnie knowingly joined the Traders fraud without being sure that he joined the wider Versailles fraud.

2. The particulars in the Traders count described the prosecution case and the overt acts from which agreement could be inferred. Following Hancock [1996] 2 Cr App R 554, they were not each essential ingredients of conspiracy to defraud. It was unnecessary to prove that Cushnie knew every alleged purpose of the transfers, provided that he knew the substance of the fraud against the Traders.

3. No Brown direction was required. Such a direction is needed only where there is a real risk that jurors will disagree about whether an ingredient has been proved. Here the dishonest acts were not disputed. The live issue was whether Cushnie knowingly participated in them.

4. The Crown could properly treat Clough as truthful and reliable on some matters but not others. Its later decision not to call him in Black’s trial did not undermine the use of his evidence at Cushnie’s trial. Any application under section 78 of the Police and Criminal Evidence Act 1984 could have been made on the disclosed material and did not depend on that later decision.

5. Clough’s sentence appeal was allowed in part. The sentencing judge was entitled to treat the gravity of the Versailles fraud as capable of justifying the statutory maximum starting point and to allow a 50 per cent discount for plea and co-operation. However, Normandy was an earlier phase of a continuous course of fraud. The twelve-month Normandy sentence should run concurrently with the five-year Versailles sentence and the concurrent three-year Traders sentence. Clough’s total term was therefore reduced from six years to five.

• Court of Appeal (Criminal Division): Cushnie’s renewed applications for leave to appeal against conviction and sentence were dismissed. Clough’s sentence appeal was allowed to the limited extent that all three sentences were ordered to run concurrently.

• Crown Court at Southwark: On 8 June 2004 Cushnie received six years’ imprisonment for the Traders conspiracy. Clough received twelve months for fraudulent trading, five years consecutive for the Versailles conspiracy, and three years concurrent for the Traders conspiracy.