Alstom Network UK Ltd, R. v (Rev 1)

A corporate defendant prosecuted through the identification principle is not denied a fair trial merely because its directing mind and will is neither charged nor available to give evidence. The company remains a separate legal entity and may participate effectively through legal representation. The absence of a directing mind may be relevant to fairness, but will only very rarely itself make a fair trial impossible.

A stay for inability to receive a fair trial is a remedy of last resort. The court must assess whether admissible evidence, other witnesses, documents and fair jury directions allow the alleged corporate wrongdoing to be tried fairly.

The appellant company was convicted at Southwark Crown Court of conspiracy to corrupt, contrary to section 1 of the Criminal Law Act 1977, concerning payments under a consultancy agreement connected with a Tunisian transport contract. It was acquitted on two other counts.

The prosecution alleged that the company acted through two directing minds and wills, neither of whom was present at the trial. Their hearsay accounts were admitted. Following the refusal of leave by the Single Judge, the company renewed its application. It contended that its trial was inherently unfair, that the jury directions were inadequate, and that the structure of the summing-up aggravated the unfairness.

The court refused the renewed application for leave to appeal conviction. There was nothing casting doubt on the safety of the conviction.

1. A company charged through the identification principle may be tried although the directing mind or minds through whom guilt is alleged are absent. A stay for inability to receive a fair trial is available only where the trial process cannot accommodate its imperfections. That is a high threshold and a remedy of last resort.
2. The position could not be equated with that of an individual defendant who is involuntarily absent. The company remained a separate legal entity, was present through experienced legal representation, and participated effectively in the trial. The absence of a directing mind was not irrelevant, but would only in a very rare case itself determine that a fair trial was impossible.
3. On the facts, the absence did not produce such unfairness. There was hearsay evidence from both directing minds, other potential witnesses and documentary material. A directing mind who was present and indicted could not have been compelled to give evidence. The company’s acquittal on other counts did not show that the conviction on this count was unsafe.
4. The trial judge’s repeated warnings prevented the jury from holding the absence of the directing minds, witnesses or documents against the company. The subsequent direction, given when the jury began its first full day of deliberations, fairly highlighted material defence submissions and could only assist the company.

• Court of Appeal (Criminal Division). The court refused the renewed application for leave to appeal conviction: [2019] EWCA Crim 1318.
• Single Judge of the Court of Appeal (Criminal Division). Initial leave to appeal conviction was refused; the date is not stated in the judgment.
• Crown Court at Southwark. On 10 April 2018, the company was convicted of conspiracy to corrupt under section 1 of the Criminal Law Act 1977 on count 3 and acquitted on counts 1 and 2.