Pollett & Ors v R.

Counts described at trial as alternatives must be assessed by their legal ingredients. The rule against taking a verdict on a lesser alternative before finality on a more serious count applies to counts which are alternatives in law. It does not govern counts containing materially different ingredients.

Nevertheless, a second conviction should be quashed where it is otiose and records, for practical purposes, the same criminality as the principal conviction. In sentencing, a defendant is ordinarily entitled to full credit for time deprived of liberty abroad before extradition where there is no discernible justification for withholding it. Territorial boundaries alone do not justify a reduced allowance.

At Bradford Crown Court, John Hirst pleaded guilty to conspiracy to defraud and money-laundering offences arising from a long-running investment fraud. Richard Pollett was convicted of conspiracy to defraud and of making misleading statements under section 397(2) of the Financial Services & Markets Act 2000. Linda Hirst was convicted of money laundering and of evading a liability by deception.

Pollett appealed against conviction and sentence. His conviction appeal concerned the taking of verdicts on two counts presented at trial as alternatives. His sentence appeal concerned credit for time spent in custody in Spain before extradition. John Hirst renewed his application for leave to appeal against sentence, and Linda Hirst appealed against sentence.

1. Pollett’s appeal was allowed in part. Counts 1 and 2 were not strict alternatives in law. Count 2 under section 397(2) required both a failure to act and dishonest concealment, whereas dishonest concealment was not a necessary ingredient of the conspiracy charged in count 1. The judge was therefore technically correct to take the count 2 verdict after conviction on count 1.

   The Court distinguished R v McEvilly [2008] EWCA Crim 1162, which concerned charges that were alternatives in law. Its rule requiring finality on the more serious charge before a verdict on the lesser charge did not govern these counts.

2. Even so, the Court held that count 2 was otiose on these facts. The two convictions reflected, for all practical purposes, the same criminality. Leaving both on Pollett’s record caused sufficient prejudice, despite there having been no separate penalty on count 2. The conviction on count 2 was quashed.

3. The Court rejected Pollett’s general mitigation challenge. It allowed his sentence appeal only because there was no discernible justification for giving credit for only six of the approximately twelve months spent in Spanish custody before the European Arrest Warrant was served. There was no suggestion that he could have returned earlier to the United Kingdom. A defendant should not suffer that prejudice merely because of territorial boundaries. His sentence of six years and six months was quashed and replaced with six years’ imprisonment.

4. John Hirst’s renewed application for leave to appeal against sentence was rejected. The Court agreed that the duration of the scheme, comparable previous offending and additional aggravating circumstances did not require a sentence below the statutory maximum by reference to R v Paulssen AG Ref 48-51of 2002 [2003] 2 Cr. App. Rep.(S) 36.

5. Linda Hirst’s sentence appeal was dismissed. R v Valentine [2011] EWCA Crim 1463 was readily distinguishable. Her offending was on a markedly larger scale, involved proved specific acts of laundering, and showed a closer involvement than that of a passive knowing participant.

• Court of Appeal (Criminal Division): Pollett’s conviction appeal succeeded only by quashing his conviction on count 2. His sentence was reduced from six years and six months to six years. John Hirst’s renewed application for leave to appeal against sentence was refused, and Linda Hirst’s sentence appeal was dismissed.
• Crown Court at Bradford: John Hirst pleaded guilty to conspiracy to defraud and money-laundering counts. Pollett was convicted of conspiracy to defraud and making misleading statements contrary to section 397(2) of the Financial Services & Markets Act 2000. Linda Hirst was convicted of money laundering and evasion of liability by deception. Sentences were imposed on 31 August 2012.