Napoli & Anor v R.

For an allegation of unauthorised deposit-taking under the Financial Services and Markets Act 2000, the prosecution must adduce evidence capable of showing either that the defendant held himself out as accepting deposits on a day-to-day basis or that deposits were not accepted only on particular occasions. The frequency and characteristics of the occasions are relevant. Where that evidence is arguably insufficient, leave to appeal should be granted so that the prosecution can identify the alleged holding-out.

A trial judge may refuse a lengthy adjournment to replace publicly funded representatives where the defendant has manipulated the process. Fairness depends on whether the unrepresented defendant could understand and meet the case, rather than on representation alone.

Four defendants stood trial at Southwark Crown Court on allegations arising from purported high-yield investment schemes. Napoli was convicted of carrying on unauthorised regulated activity. James was convicted of deception offences, unauthorised regulated activity and money laundering, and received a total sentence of seven years’ imprisonment.

Napoli renewed his application for leave to appeal conviction after the single judge’s refusal. He contended that there was no case to answer because the evidence showed only two deposits over two years. James sought an extension of time and leave to appeal conviction and sentence. He challenged the refusal of an adjournment after his legal team withdrew, the limited administrative assistance provided during trial, and the length of the money-laundering sentences.

The central issues were whether the evidence against Napoli met the statutory deposit-taking threshold, and whether James’s self-representation and sentence disclosed an arguable injustice.

1. Napoli. The court granted leave to appeal conviction. Under section 419 of the Financial Services and Markets Act 2000 and Regulation 2 of the Financial Services and Markets Act 2000 (Carrying on Regulated Activities by Way of Business) Order 2001, the prosecution had to adduce evidence from which a jury could safely infer either that Napoli held himself out as accepting deposits on a day-to-day basis or that deposits were not accepted only on particular occasions. The court considered it arguable that the evidence established neither condition. It directed the prosecutor to identify the conduct said to amount to holding out.
2. James: adjournment and representation. The court adopted the guidance in R v Ulcay [2007] EWCA Crim 2379. The judge was entitled to refuse a lengthy adjournment where he was entitled to find that James had manipulated the process and where a replacement team could not prepare without substantial disruption to a long, multi-handed trial. The judge could also take account of James’s legal qualifications and familiarity with his case.
3. The absence of further assistance during the prosecution case did not arguably render the trial unfair. The issues were principally whether the jury accepted conflicting accounts of meetings and representations. James could understand the evidence, access documents, question witnesses and put his account clearly. There was no apparent basis on which additional assistance could have affected the verdicts.
4. Sentence and time. The judge was entitled to impose longer concurrent sentences for money laundering because James participated both in fraudulent obtaining and in arranging the transfer of proceeds abroad. The total sentence was not manifestly excessive. As neither conviction nor sentence challenge had merit, the court refused James’s application for an extension of time and would in any event have refused leave to appeal.

• Court of Appeal (Criminal Division): In Napoli & Anor v R. [2011] EWCA Crim 2460, Napoli was granted leave to appeal conviction. James’s applications relating to conviction, sentence and time were refused.
• Southwark Crown Court: Following trial before His Honour Judge Pitts, Napoli was convicted of unauthorised regulated activity. James was convicted of deception, unauthorised regulated activity and money-laundering offences, and was sentenced to seven years’ imprisonment.