R v Welcher & Ors

An employer's internal disciplinary investigator is not, without more, a person charged with investigating offences for the purposes of section 67(9) of the Police and Criminal Evidence Act 1984. Interviews conducted without the safeguards in Code C may therefore remain admissible where their admission is fair.

A lengthy summing-up does not make convictions unsafe if further directions accurately identify the essential issues and enable the jury to determine them. In sentencing prolonged, high-value commercial corruption and fraud, the scale, duration and greed involved may outweigh substantial personal mitigation.

The three appellants were convicted at Reading Crown Court of conspiracy to corrupt and conspiracy to defraud Mars UK Ltd. The allegations concerned a decade-long arrangement under which Excel Engineering received Mars work and payments, while benefits were given to Mars employees and invoices were allegedly inflated or false.

Welcher appealed against conviction. He challenged the admission of disciplinary interviews conducted by his Mars line manager and criticised the summing-up. Simpson and Harper appealed against concurrent sentences of four years for corruption and six years and six months for conspiracy to defraud.

The court considered whether the interviews were governed by Code C, whether the jury directions rendered the convictions unsafe, and whether the sentences were manifestly excessive.

1. The conviction and sentence appeals were dismissed. The court held that Welcher's convictions were safe and that the sentences imposed on Simpson and Harper could not be faulted.

2. Mr Carabok was investigating Welcher's conduct for Mars's disciplinary purposes, not acting under a duty to investigate offences. He was therefore not within section 67(9) of the Police and Criminal Evidence Act 1984. Although the interviews did not comply with Code C, their admission was fair. Welcher was not cajoled into answering, and his explanation that he had sought to protect his pension was a matter for the jury rather than a ground for exclusion. The court applied the observation in Gill [2004] 1 Cr App R 20 that the safeguards principally protect against unwitting or involuntary admissions, rather than false accounts.

3. The Excel records' possible inaccuracies were of limited significance to Welcher because he admitted much of the relevant receipt evidence and relied instead on explanations for the payments and benefits. The original summing-up was overlong, but the further directions of 5 December identified the essential features of each defendant's case and the questions for the jury. Taken with the earlier directions, they enabled a proper consideration of the issues. Neither individually nor cumulatively did the grounds cast doubt on the verdicts.

4. The sentence appeals failed. The court gave weight to the minimum joint gain of £3 million, the serious and persistent corruption, the decade-long fraud and greed as its motivation. Substantial good character, age, personal mitigation, favourable prison reports, confiscation and reduced future circumstances did not make the concurrent six-and-a-half-year sentences manifestly excessive. The reduced maximum sentence for theft was immaterial, particularly given the ten-year maximum for conspiracy to defraud and the sentencing observation in Clark [1998] 2 Crim App R 137.

• Court of Appeal (Criminal Division): Dismissed Welcher's appeal against conviction and Simpson's and Harper's appeals against sentence: [2007] EWCA Crim 480.
• Crown Court at Reading: On 8 December 2005, Welcher, Simpson and Harper were convicted of conspiracy to corrupt and conspiracy to defraud. On 9 December 2005, Simpson and Harper received concurrent sentences of four years and six years and six months respectively; Welcher received concurrent sentences of three years and four years and six months.