Sampson & Ors, R. v

In a long or complex criminal trial, a summing up must properly equip the jury to decide the issues. The judge should identify the material issues, relate the significant evidence to the relevant counts and defendants, and fairly explain the essential defence cases. A sequential rehearsal of evidence without that structure may render convictions unsafe, even where the prosecution evidence is strong.

A person who effectively directs a company’s authorised signatories may appropriate its bank credit balance through a dishonest payment scheme. In a false-accounting allegation, invoices deliberately created to conceal a fraudulent transaction in company accounts may be documents made for an accounting purpose under the Theft Act 1968.

Following a trial of almost seven months at the Crown Court at Wood Green, Sampson, Hurley and Watts were convicted of conspiracies to steal from Environmental Protection Initiatives Ltd and to falsify invoices. The prosecution alleged that they used an approved environmental body under the landfill-tax credit scheme to divert funds for their own benefit. Hurley was also convicted of acting as a director while an undischarged bankrupt.

The appellants challenged, among other matters, the legal sufficiency of counts alleging theft and false accounting, the direction on a schedule said to have been produced in furtherance of the conspiracy, the discharge of a juror, delay, and the adequacy of the summing up. The central issue was whether the jury had been properly assisted to determine the complex multi-defendant case.

1. The appeals were allowed in part. The convictions of all three appellants on counts 1, 2 and 3 were unsafe and were quashed. Hurley’s convictions on counts 4 and 5, for acting as a director while an undischarged bankrupt, remained safe and his appeal on those counts was dismissed.

2. The summing up did not properly equip the jury to perform its task. Applying the guidance in Amado-Taylor [2002] Crim App R 189 and R v Jones (Peter) [1987] Crim LR 701, the court held that a long and complex trial required a clear structure. The judge should have identified the issues on each count, linked material evidence to the individual defendants, and explained the defence cases. Instead, the summing up largely recited witnesses’ evidence in chronological order. It omitted material matters bearing on honest remuneration, regulatory compliance as evidence relevant to dishonesty, and Hurley’s limited involvement in particular projects.

3. The court rejected the renewed no-case submissions. A dishonest scheme whereby those controlling a company procure its authorised signatories to make inflated payments can appropriate the company’s bank credit balance. The fact that the conspirators were not directors or mandate signatories did not prevent appropriation: Wille (1988) 86 Cr App R 296. Apparent corporate consent did not answer the theft allegation: Gomez [1993] AC 442.

4. The invoices alleged in count 2 could properly be treated as documents made for an accounting purpose under section 17(1)(a) of the Theft Act 1968. On the Crown’s case, they were created to disguise a fraud in company accounts, not to evidence genuine debts. Expert accounting evidence was unnecessary on the evidence in this case. The direction concerning the schedule E5/208 was deficient because it did not explain that independent evidence was required before a conspirator’s document could be used against other alleged conspirators. That defect alone would not have made the convictions unsafe.

5. The judge should have disclosed the jurors’ note because it contained no confidential voting information. However, the non-disclosure caused no unfairness. Given the juror’s stress-related illness, the history of interruptions and the prospect of further delay, the judge was entitled to discharge that juror. Earlier delay and interruptions had not independently made the trial unfair.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 1238, the court quashed the convictions on counts 1, 2 and 3 because the summing up rendered them unsafe. It dismissed Hurley’s appeal against his convictions on counts 4 and 5.
• Crown Court at Wood Green: After a trial lasting almost seven months, the appellants were convicted of conspiracy offences. Hurley was additionally convicted of acting as a director while an undischarged bankrupt.