Hamidi & Anor, R. v

A lawful direction under section 35 of the Criminal Justice and Public Order Act 1994 need not be withheld from defendants who attended trial and elected not to give evidence merely because an absconding co-accused cannot be subject to an adverse inference. Parity requires an evidential basis or exceptional circumstances, including identifiable unfairness. Evidence of substantially similar earlier conduct may be relevant to knowledge and propensity, but propensity cannot itself prove guilt and must not bolster a weak case. A prior tribunal’s evaluative finding does not determine criminal guilt and is inadmissible if irrelevant to the issue for the jury.

Following a jury trial at Northampton Crown Court, Hamidi and Cherazi were convicted of conspiracy to cheat the revenue through an MTIC VAT carousel involving CPU transactions. Each received four years’ imprisonment and an eight-year directors’ disqualification.

Their co-accused, Pomfrett, had already failed in his conviction appeal: Pomfrett (2009) EWCA Crim 1939. Hamidi and Cherazi challenged the section 35 silence directions. Hamidi also challenged the use of evidence concerning his earlier involvement in Med Trading and the exclusion of a VAT tribunal finding. Cherazi alleged an unfair summing-up and challenged his sentence.

1. The conviction appeals were dismissed. The judge correctly directed the jury under section 35(2) of the Criminal Justice and Public Order Act 1994 in respect of Hamidi and Cherazi. They had attended trial, received advice and made an informed choice not to testify. Timur Mehmet’s absence meant that the statutory procedure had not been completed in his case, so the jury could not draw an adverse inference against him. That difference did not itself make the directions to the appellants unfair. There was no evidential basis, exceptional circumstance or identified prejudice requiring parity between them.
2. The Med Trading evidence was properly left to the jury. It was admissible, by agreement, as similar-fact evidence relevant particularly to whether Hamidi had acted knowingly rather than innocently. The jury could consider propensity only after first being sure that Hamidi had performed an act advancing the charged conspiracy. The evidence concerned a course of trading with distinctive MTIC-fraud features; its occurrence within one enterprise and a short period did not make a propensity direction unfair or unsafe.
3. The propensity direction was adequate. Read fairly and in context, it did not invite the jury to use previous conduct to bolster an otherwise weak case. The judge had made clear that propensity could not prove guilt by itself, could not receive undue weight, and was relevant only after participation in the Beronvine trading had been established.
4. The VAT tribunal’s conclusion was inadmissible. Its finding that Hamidi had been an innocent dupe was its evaluative judgment on different civil proceedings, not relevant evidence on the criminal issue. It neither bound the jury nor created unfairness. Hamidi could instead challenge the underlying evidence and rely on the directions given.
5. Cherazi’s remaining complaints failed. The summing-up fairly identified the defence case and the limited consequences of his silence. Its references to uncontradicted matters were appropriate. His four-year sentence was not arguably excessive given the approximately £2 million revenue loss, the absence of undue delay, and the lack of unfair disparity.

• Court of Appeal (Criminal Division): Conviction appeals dismissed and Cherazi’s renewed sentence application dismissed in [2010] EWCA Crim 66.
• Northampton Crown Court: On 23 January 2008, a jury convicted both appellants of conspiracy to cheat the revenue. Each was sentenced to four years’ imprisonment and disqualified from acting as a company director for eight years.