Gopee, R v

Extracts from judgments in civil proceedings may be admitted as evidence of what a defendant was told about the law, where that bears on a claimed honest mistake or due-diligence defence. They are not admitted to establish that the civil judges’ opinions were correct.

A jury may decide objectively whether an apparent sale was in substance a loan by examining the whole arrangement, the parties’ intentions, and its actual effect. A technical direction on a bilateral sham is unnecessary where that doctrine does not arise.

An impartial summing-up may identify the logical weaknesses of a defence, provided the judge fairly states and analyses each side’s case.

The appellant appealed as of right against a 15-month sentence for contempt imposed for admitted, deliberate breaches of a restraint order. He also renewed applications for leave to appeal against convictions for unlicensed consumer-credit activity and unauthorised regulated activity, and against a total sentence of three-and-a-half years’ imprisonment and a five-year serious crime prevention order.

The prosecution alleged that, after the revocation of his consumer-credit licence, he continued lending to vulnerable homeowners and used purported sales of their properties to disguise further loans. At trial, civil judgments involving the appellant were admitted as evidence relevant to his knowledge and due-diligence defence. The issues included the admissibility of that material, the need for a direction on sham transactions, trial fairness, sentence, and the serious crime prevention order.

1. The appeal against the contempt sentence was dismissed. The appellant had deliberately and repeatedly flouted the restraint order, concealed assets and sources of cash, and had previously committed contempt. The sentencing judge was entitled to treat the conduct as highly serious and the 15-month term as amply justified. Matters said to concern the FCA’s conduct, unrelated litigation, or the appellant’s asserted wish to preserve assets did not mitigate his deliberate non-compliance.

2. The renewed application for leave to appeal against conviction was dismissed. Extracts from civil judgments were properly admitted under section 98(a) of the Criminal Justice Act 2003. Their relevance lay in the notice given to the appellant, who had been personally involved in those proceedings, of the courts’ statements concerning the enforceability of the lending arrangements. The jury could use that notice when deciding whether his asserted belief and due diligence were genuine. The material was not admitted as proof that the civil judges’ views were correct.

3. The judge was not required to give a technical direction on sham transactions derived from Snook v London and West Riding Investments Ltd [1967] 2 QB 787. The borrowers were not parties to a sham agreement with a common intention to misstate their arrangements. The real question was whether the purported sale was objectively a genuine sale or a loan in all but name. The jury was correctly directed to consider all elements of the arrangements, what was and was not done, the parties’ intentions, and their actual effect.

4. The trial judge’s interventions and summing-up were fair. Applying the guidance in R v Nelson [1996] EWCA Crim 707, impartiality permits a judge to expose apparent implausibilities, inconsistencies and illogicalities in a defence, while fairly putting and analysing both sides’ cases.

5. The renewed application for leave to appeal against sentence was dismissed. The judge had not sentenced by reference to a fraud guideline merely because the offending was described as dishonest. The consecutive custodial terms were not manifestly excessive. The serious crime prevention order under section 19 of the Serious Crime Act 2007 was necessary and proportionate, given the seriousness, persistence and sophistication of the offending and the assessed risk of further harm to vulnerable borrowers. A loss-of-time order of 56 days was made.

• Court of Appeal (Criminal Division): The appeal against the contempt sentence was dismissed. The renewed applications for leave to appeal against conviction, sentence and the serious crime prevention order were dismissed in [2019] EWCA Crim 601.
• Crown Court at Southwark: On 30 October 2017, His Honour Judge Testar QC imposed 15 months’ imprisonment for further contempt of court.
• Crown Court at Southwark: On 8 February 2018, following a jury trial before His Honour Judge Beddoe QC, the appellant was convicted of offences under the Consumer Credit Act 1974 and the Financial Services and Markets Act 2000. On 9 February 2018, the judge imposed consecutive terms totalling three-and-a-half years’ imprisonment and a five-year serious crime prevention order.
• Full Court: On 27 October 2017, the appellant’s appeal against an earlier contempt finding was dismissed, although an appeal against a mandatory variation of the restraint order was allowed on a technical jurisdictional point.