Matthews, R. v

Convictions of persons connected with a fraud may be admissible as explanatory evidence under section 101(1)(b) of the Criminal Justice Act 2003 where they assist in proving both the fraud and the defendant’s knowledge of it. A co-defendant’s accepted basis of plea has no evidential role merely because it avoids identifying the defendant as a co-conspirator.

A fair trial does not require admission of irrelevant material about other participants, unprosecuted traders, or the ultimate destination of criminal proceeds. Judicial interventions, even if occasionally ill-judged, do not make a conviction unsafe unless they cause unfairness in the trial as a whole. In serious fraud sentencing, a severe sentence within the applicable range is not manifestly excessive merely because the offender was a buffer rather than the organiser.

The appellant controlled Calcon Industrial Supplies Ltd, a buffer company involved in a mobile-phone missing-trader intra-community fraud. He was convicted by a majority at Birmingham Crown Court, sitting at Worcester, of cheating the public revenue after a six-week retrial in July and August 2008. He received seven years’ imprisonment and a six-year directors’ disqualification.

His first trial before the same judge ended with a disagreement. On appeal, he alleged that the retrial was unfair because of the admission of others’ convictions, the exclusion of material said to support his defence, the judge’s conduct, the summing up, and the treatment of a defence witness. After dismissal of the conviction appeal, he renewed his application for permission to appeal his sentence. The central issue was whether any alleged irregularity rendered the retrial unfair or the verdict unsafe.

1. The conviction appeal was dismissed. The convictions of Craig Johnson, Hawcroft and Sanders were properly admitted as explanatory evidence under section 101(1)(b) of the Criminal Justice Act 2003. They were relevant both to the existence and nature of the fraud and to whether the appellant knew that his trading participated in it. Their admission was fair.
2. Johnson’s accepted basis of plea was not evidence capable of assisting the appellant. It did not exculpate Calcon or the appellant; at most, it recorded Johnson’s refusal to identify his co-conspirators. The Crown’s refusal to put it before the jury was not inconsistent or unfair. CPS Sussex v Haravinda Singh Mattu [2009] EWCA Crim 1483 concerned a materially different inconsistency by the prosecution.
3. The trial judge was entitled to restrict exploration of other traders’ dealings, the Hong Kong laundering arrangements, common control of suppliers, and the non-prosecution of another company. Those matters did not assist the jury on the essential issue: whether this appellant knew that the trade in which he participated involved missing traders or fraud upon the revenue.
4. The court rejected the allegations of hostility and bias. The judge had correctly curbed repeated attempts to pursue irrelevant matters. He had intervened too soon on one occasion during cross-examination of an expert witness and at times showed irritation, but the conduct did not cause unfairness. The careful summing up showed that the judge had properly attended to the defence case. It was balanced and adequate despite its relative brevity.
5. The renewed application for permission to appeal sentence was refused. A seven-year sentence was severe and at the top of the relevant range, particularly for an offender of good character, but it was not manifestly excessive given the seriousness of the fraud, the loss attributable to the trading, and the appellant’s substantial gain.

The court added that MTIC fraud trials should be confined to the real issue of the defendant’s knowledge and should not be prolonged by collateral disputes about linked cases or unprosecuted participants.

• Court of Appeal (Criminal Division): The court dismissed the appeal against conviction in [2010] EWCA Crim 3202 and refused the renewed application for permission to appeal sentence.
• Birmingham Crown Court, sitting at Worcester: At the retrial in July and August 2008, the appellant was convicted by a majority of cheating the public revenue and sentenced to seven years’ imprisonment.