West & Anor, R v

In a fraud prosecution concerning a representation that a company had good title to land, expert evidence of foreign law is not required where the issue is whether the available evidence supported the representation. Evidence that the asserted title or underlying right did not exist, did not purport to transfer the land, and was unsupported by other documents may suffice.

The statutory disclosure regime applies to material created or received by an accused. A claimed need to refresh memory does not create a separate right to all such material. Disclosure remains confined to material capable of undermining the prosecution case or assisting the defence; diffuse relevance or use as an aide memoire is insufficient.

Following a two-month trial in the Crown Court at Southwark, James Whale and Gary West were convicted of conspiracy to commit fraud by false representation and fraudulent trading arising from investment products marketed by Sustainable Agroenergy plc. West was also convicted of conspiracy to furnish false information and two bribery offences.

Whale renewed applications for leave to appeal against conviction and sentence. His conviction grounds challenged the refusal of a submission of no case on representations about title to Cambodian land, and the refusal to order disclosure of all his work emails. West sought leave to appeal against his total sentence of 13 years’ imprisonment.

The central issues were whether foreign-law expert evidence was necessary and whether an accused’s work emails were disclosable outside the ordinary CPIA regime as material for refreshing memory.

1. The court refused all the applications. Whale had no arguable ground for leave to appeal against conviction or sentence. West’s sentence application was also refused.

2. The judge had correctly rejected the submission of no case on the alleged false or misleading representations about good title to Cambodian land. The issue was not dependent on proving Cambodian land law by expert evidence. There was evidence from which a properly directed jury could find that the claimed economic land concession did not exist or, if it did, did not purport to transfer the land. There was also a striking absence of documents supporting the asserted good title, despite repeated requests and the management receiver’s inability to identify a saleable land asset. The contention that proof was insufficient was therefore unarguable. The conviction for fraudulent trading was not infected by this issue.

3. The court rejected the proposition that the CPIA disclosure regime excludes documents created or received by an accused. It also rejected a freestanding exception for material sought to refresh memory. Applying the guidance in R v R & Others [2015] EWCA Crim 1941 and R v Hayes [2015] EWCA Crim 1944, disclosure required a demonstrated capacity to undermine the prosecution case or assist the defence. General relevance, an asserted aide-memoire function, and tangential significance did not meet that standard.

4. On the facts, the prosecution and trial judge had handled disclosure fairly and appropriately. The late applications, the extensive review already undertaken, and the absence of identified relevant unproduced correspondence supported that conclusion. The isolated listing error did not establish an unfair trial.

5. The sentencing judge was best placed to determine the factual basis for sentence. Although the fraud was not fraudulent from its inception, the sustained and grave offending justified the sentences. The total terms were within the appropriate range, albeit towards its upper end, and were not manifestly excessive.

• Court of Appeal (Criminal Division) — in [2016] EWCA Crim 742, refused Whale’s renewed applications for leave to appeal against conviction and sentence, and refused West’s sentence application.

• Crown Court at Southwark — following trial before His Honour Judge Beddoe and a jury, convicted Whale and West on 5 December 2014. Whale received concurrent nine-year terms; West received a total of 13 years’ imprisonment.