Sohal, R v

A conviction is unsafe where there is no evidence on which a jury could find that the defendant participated, as principal or secondary party, in the alleged transfer or conversion of criminal property.

Although hearsay may satisfy the conditions for admission under the Criminal Justice Act 2003, it must be excluded under section 78 of the Police and Criminal Evidence Act 1984 where its limited probative value is substantially outweighed by unfair prejudice, particularly where the defence cannot test unsupported and materially ambiguous assertions by cross-examination. An erroneous refusal to exclude evidence does not make remaining convictions unsafe if there is substantial other evidence and clear limiting directions.

In sentencing a conspiracy to defraud, a court may assess loss by reference to the sums paid where purchasers would not have bought the fraudulently altered goods at all.

The appellant was convicted at Wolverhampton Crown Court of two conspiracies to defraud arising from the sale of motor vehicles with substantially reduced odometer readings and forged documentation. He was also convicted of three counts of converting criminal property. He received concurrent sentences, producing a total of two years and four months’ imprisonment.

He appealed against conviction and sentence. The appeal challenged the sufficiency of the evidence on the money-laundering counts and the admission of hearsay evidence concerning his son’s earlier offending. The central questions were whether the hearsay should have been excluded for unfairness and whether the convictions and sentence were safe.

1. The appeals against conviction on counts 3, 5 and 6 were allowed and those convictions were quashed. The payments identified in those counts had been made directly by purchasers into an account, or by bankers’ drafts later paid into an account. There was no evidence that the appellant took part in any of those transfers or conversions, either as principal or secondary party. The convictions were therefore unsafe.
2. The court held that the hearsay evidence should have been excluded for unfairness. The statutory conditions for hearsay admission under section 116 of the Criminal Justice Act 2003 were met. Nor was a bad-character application required against the appellant, because the prosecution did not adduce the evidence as his bad character. However, the statements were read against him only because the witnesses were unavailable for cross-examination.
3. The statements were materially unreliable as evidence against the appellant. They were identically worded, did not explain why the older man was identified as the son’s father, did not specify what he had said, and did not establish that the conversation was in English. Their limited probative value was outweighed by their prejudicial effect. In those circumstances, fairness required exclusion under section 78 of the Police and Criminal Evidence Act 1984.
4. The convictions on counts 1 and 2 nevertheless remained safe. There was a considerable body of other evidence capable of proving the appellant’s guilt. The jury had also been clearly directed that the hearsay evidence had only limited relevance and did not show that the appellant had participated in his son’s earlier offending.
5. The sentence appeal was dismissed. The sentencing judge was entitled to assess the loss by reference substantially to the prices paid for the fraudulently altered vehicles, since the purchasers would not have bought them had the truth been known. The appellant’s subordinate role, good character, health, and delay were properly considered. There was no unfair disparity with his co-defendants, whose positions were materially different. The total sentence therefore remained two years and four months’ imprisonment.

• Court of Appeal (Criminal Division): In [2019] EWCA Crim 1237, the court quashed the money-laundering convictions on counts 3, 5 and 6, but dismissed the appeals against the conspiracy convictions and sentence.
• Crown Court at Wolverhampton: The appellant was convicted on 27 September 2018 and sentenced on 4 January 2019 to a total of two years and four months’ imprisonment.