Bond & Anor, R v

An indictment for conspiracy may be amended under Indictments Act 1915 section 5(1) to identify additional alleged co-conspirators where the evidence provides a proper and sustainable basis for alleging their participation in the wider agreement, and the amendment can be made without injustice.

A breach of the authorisation requirements in Regulation of Investigatory Powers Act 2000 does not automatically require exclusion under Police and Criminal Evidence Act 1984 section 78. The decisive question is whether admission would adversely affect trial fairness. Good faith, the absence of coercion or subterfuge, voluntary remarks, and the ability to test the recording before the jury may properly support admission.

The appellants, Anthony Bond and Stephen Goble, were convicted at Southwark Crown Court of conspiracy to cheat the Revenue through a VAT fraud involving the use of defaulting trader companies. Bond was the director of the relevant companies and Goble their bookkeeper.

They appealed against conviction on two grounds. First, they challenged a late amendment to the indictment which named three additional alleged co-conspirators. Secondly, they challenged the admission of a covert recording of their conversation in a police van after arrest. The recording had been obtained under an authorisation which the trial judge found was neither necessary nor proportionate under Regulation of Investigatory Powers Act 2000.

The central issues were whether the amendment had a sufficient evidential foundation and could be made without injustice, and whether the unlawfully authorised surveillance rendered the trial unfair for the purposes of section 78 of the Police and Criminal Evidence Act 1984.

1. Appeals dismissed. The trial judge was entitled to permit amendment of the indictment to name Charalambides, Stewart and Ellis as alleged co-conspirators.

2. Under section 5(1) of the Indictments Act 1915, the governing question was whether the amendment could be made without injustice. Bond’s oral evidence had materially developed the evidential position. It identified the three men as trading with the Bond Group through numerous defaulting trader companies, rather than merely as introducers or co-workers.

3. The sequential replacement of defaulting suppliers, the substantial volume of associated trading, and the meeting between Bond, Stewart and Charalambides after HMRC intervention provided a proper evidential basis from which a jury could infer that each man had agreed with Bond to cheat HMRC and knew of the wider conspiracy. The defence had been on notice that identified co-conspirators might later be added. It could not identify how it would have run the case differently, and the agreed jury direction adequately addressed prejudice.

4. The covert surveillance breached section 28 of the Regulation of Investigatory Powers Act 2000 because it was not objectively necessary or proportionate. That unlawfulness did not itself require exclusion. Applying the fairness purpose of section 78 of the Police and Criminal Evidence Act 1984, the court upheld admission: the officers acted in good faith; the device was not used to circumvent legal rights; and there was no oppression, inducement, misrepresentation, entrapment or police questioning. The appellants spoke voluntarily and the recordings, expert evidence and their own explanations enabled the jury fairly to assess what had been said.

5. There was insufficient evidence to determine that the route taken after arrest breached section 30 of the Police and Criminal Evidence Act 1984. In any event, a short delay, if established, would not have altered the conclusion that the recordings were admissible.

• Court of Appeal (Criminal Division): Appeals against conviction dismissed: [2020] EWCA Crim 1596.
• Southwark Crown Court: The appellants were convicted on 13 March 2019 of conspiracy to cheat the Revenue. Bond was sentenced to seven years and six months’ imprisonment and Goble to five years’ imprisonment.