Pershad, R. v

A prosecution should ordinarily disclose and adduce, before the close of its case, evidence on which it relies as probative of guilt. A departure from that practice does not render a conviction unsafe unless it materially affects trial fairness or safety.

A trial judge must direct the jury on legal relevance and give correct directions with a fair review of the evidence. Defects in a summing-up, including omissions and inaccuracies, will not make a conviction unsafe where the essential directions and issues were fairly conveyed and the evidence of guilt was compelling.

The applicant, a practising barrister who later became Queen’s Counsel, was convicted at the Crown Court at Blackfriars of cheating the public revenue by dishonestly failing over 12 years to account for VAT received on professional fees. His case was that he honestly believed his chambers paid the VAT from his chambers contribution.

He sought leave to appeal against conviction on the grounds that the prosecution used undisclosed documents during cross-examination and that the summing-up was unfair, unbalanced and defective. The central issue was whether those errors rendered the conviction unsafe.

1. Leave to appeal was refused. The court held that the conviction was entirely safe.
2. The investigating officer’s note of the applicant’s reaction when first informed of the investigation should have been disclosed and relied on by the prosecution in its case. This reflected the practice identified in R v Rice [1963] 1 QB 857 and R v Phillipson (1990) 91 Cr App R 226. The prosecution’s error had no material effect on fairness or safety. The significant point was the applicant’s failure then to say that chambers had paid the VAT or promptly to verify that assertion.
3. There was no proper complaint about the late use of the divorce financial settlement agreement. It was the applicant’s own document, did not on his evidence record the whole asserted agreement, and became only marginally material during cross-examination.
4. The trial judge should have directed the jury on the relevance of the applicant’s later use of sale proceeds, rather than leaving relevance to them. The direction on good character would also have been more helpful if fuller. Nonetheless, it identified the essential credibility and propensity aspects and referred to the favourable evidence before the jury.
5. The summing-up was materially open to criticism. It was poorly organised and contained inaccuracies and omissions. Read as a whole, however, it gave essentially correct legal directions and fairly identified the decisive issue: whether the prosecution had disproved the applicant’s account and proved a deliberate and dishonest failure to pay VAT. The prosecution evidence was formidable and provided ample grounds for rejecting that account.

• Court of Appeal (Criminal Division): In [2014] EWCA Crim 692, refused the application for leave to appeal against conviction.
• Crown Court at Blackfriars: The applicant was convicted on 11 February 2013 of cheating the public revenue and sentenced on 26 February 2013 to three years and six months’ imprisonment.