F & B, R v

A permanent stay for delay is exceptional. It requires serious prejudice such that no fair trial can be held, or some other compelling unfairness. A breach of the reasonable-time obligation under Article 6 does not itself require a stay where an effective lesser remedy is available.

A conspiracy to defraud is sufficiently certain where the alleged dishonest means are identified. A general allegation of dishonesty may raise a different question. An acquittal of a co-defendant does not determine the reasons for that verdict or prevent relevant evidence about that person being adduced at a co-defendant’s retrial. A business document may satisfy the statutory hearsay conditions although it was not sent, if it was made with the purpose of causing the intended recipient to believe its contents.

The applicants faced a retrial on a count of conspiracy to defraud arising from investment schemes operated by the Imperial group. At the first trial, the jury failed to reach verdicts on the applicants after lengthy deliberations, while their co-defendant, Nicholas Fraser, was acquitted.

Gloster J refused to stay the retrial for delay and alleged uncertainty in the common law offence. She also ruled admissible two documents created by Nicholas Fraser concerning the group’s financial position. The applicants sought leave to appeal those rulings. The central issues were whether the retrial would be abusive, whether the offence lacked legal certainty, and whether the acquittal affected the admissibility of the documents and other evidence.

1. The applications for leave were refused. Gloster J’s conclusion that a fair retrial remained possible was open to her. A stay for delay is exceptional and requires serious prejudice preventing a fair trial, or another compelling reason why trial would be unfair. Even an established breach of the reasonable-time requirement in Article 6 would not require a stay if a lesser effective remedy could vindicate the right. The availability of witness statements and first-trial transcripts supported the conclusion that a fair trial could take place.

2. The offence of conspiracy to defraud did not lack the certainty required by Articles 5 and 7. The essential distinction was between a conspiracy based on identified dishonest means and one based only on a general allegation of dishonest conduct. The Crown’s case alleged false representations, false accounting and continued trading while knowing investors could not realistically be repaid. Those allegations identified conduct which was itself unlawful and sufficiently clear.

3. Nicholas Fraser’s acquittal did not establish that the first jury had rejected any particular allegation, including dishonesty. There were logically possible bases for the verdict. Nor did the acquittal create an issue estoppel or otherwise prevent relevant evidence about his alleged dishonesty being led at the applicants’ retrial. The trial judge retained responsibility for preventing unfairness caused by a partial or misleading use of first-trial evidence.

4. The documents were admissible. Under Criminal Justice Act 2003, a statement may satisfy the intended-belief requirement although the document was never sent, provided it was made with the purpose of causing the intended recipient to believe its contents. The documents were admissible under section 117 to prove the group’s financial position and use of new investors’ funds. When tendered to show their author’s state of mind and knowledge, they were non-hearsay real evidence admissible at common law.

5. Gloster J was entitled to find that the documents’ reliability was not doubtful and that their evidential value outweighed any case for exclusion under section 126(1) of the 2003 Act or section 78 of the Police and Criminal Evidence Act 1984. The Court suggested that an admission as to Nicholas Fraser’s explanation might alleviate any risk of an unbalanced presentation, but left that matter to the parties. Reporting restrictions were confirmed.

• Court of Appeal (Criminal Division) Refused the applicants leave to appeal against Gloster J’s rulings: [2009] EWCA Crim 1961.
• Gloster J Refused a stay of the retrial for abuse of process and legal uncertainty, and ruled two Nicholas Fraser documents admissible.