Gray, R v

In a conspiracy case, records created by conspirators may be admitted against another alleged conspirator where they were made in furtherance of the common design and there is independent evidence connecting that person with the agreement. Records produced to facilitate a fraud are not, in principle, excluded from the business-records route under Criminal Justice Act 2003, section 117.

The adequacy of directions about such records depends on the summing up as a whole and the supporting evidence. In confiscation proceedings, reliable accounting evidence may support an inference that recorded payments were received, including across periods using different accounting systems. A benefit figure must be reduced where the prosecution cannot prove an item, but the confiscation order remains capped by the available realisable assets.

The appellant was convicted after a retrial at Reading Crown Court of conspiracy to corrupt and conspiracy to defraud Mars UK Ltd. The prosecution alleged that he accepted bribes from Excel Engineering in return for placing and authorising false or excessive work orders.

He renewed his application for leave to appeal against conviction, challenging the admissibility and treatment of Excel’s internal records. He also sought leave to appeal against sentence. His appeal against a confiscation order made under the Criminal Justice Act 1988 challenged the assessment of benefit from accounting entries recording payments attributed to him.

The central issues were whether the documentary evidence had been properly admitted and directed upon, and whether the confiscation benefit had been properly calculated.

1. Conviction. The renewed application for leave to appeal against conviction was refused. The trial judge correctly admitted the internal notes, ledgers, cheques, sales-commission records and related documents as acts done by conspirators in furtherance of the alleged common design. The applicable three-stage approach, drawn from R v Devonport and Pirano [1996] 1 Cr App R 221 and R v Jones [1997] 2 Cr App R 119, was satisfied.
2. The court also found no reason in principle why records created for fraudulent purposes could not be admitted as business records under section 117 of the Criminal Justice Act 2003. The decisive question was whether the jury had been properly directed on their evidential significance. Although a more explicit warning about the makers not being challenged would have been preferable, the summing up required the jury to assess the records in the light of all the evidence. The appellant’s admitted signing of numerous orders for fictitious companies provided powerful independent support. The convictions were not unsafe.
3. Sentence. Time was extended for the renewed application, but leave to appeal against sentence was refused. The concurrent four-year total properly reflected a serious and prolonged breach of trust, the financial benefit obtained and the appellant’s personal mitigation.
4. Confiscation. The appeal against the confiscation order was dismissed. The Pegasus accounting records provided compelling evidence that cash recorded against the appellant’s ledger code had been paid to him. That evidence supported corresponding inferences for the earlier sales-commission and salary records and for the later period. The court accepted that the underlying fraud routinely doubled sums due to corrupt Mars employees, leaving no basis for a deduction to represent a directors’ share.
5. The prosecution could not establish one tax-year figure of £33,295. The benefit figure was therefore reduced, with indexation, to £632,901.66. As that still exceeded agreed realisable assets of £627,170, section 71(6) of the Criminal Justice Act 1988 required no reduction in the confiscation order.

• Court of Appeal (Criminal Division). In [2007] EWCA Crim 2658, the court refused renewed leave to appeal against conviction and sentence, and dismissed the appeal against the confiscation order while correcting the benefit calculation.
• Reading Crown Court. After a retrial before Her Honour Judge Zoe Smith, the appellant was convicted of conspiracy to corrupt and conspiracy to defraud. He received a concurrent four-year total sentence and was made subject to a confiscation order of £627,170.