Say, R. v

For fraud by abuse of position under the Fraud Act 2006, the prosecution need not establish strict property-law ownership. It must prove dishonest abuse of a position involving responsibility for another’s financial interests, together with an intention to gain or cause loss or risk of loss. Whether scheme documents authorised fees may be a question of fact for the jury where the contractual material is unclear and disputed. Late applications to renew or vary appeal grounds require a very good reason. Money paid as tax relief and spent on an offender’s own purposes may constitute actual loss for sentencing. The convictions, custodial sentence and directors’ disqualification were upheld.

The appellant was convicted at Chelmsford Crown Court, case T20160061, of fraud by abuse of position and fraudulent trading arising from a pensions investment scheme operated through Noisnep Ltd. He received concurrent terms of imprisonment and an eight-year directors’ disqualification.

Leave to appeal against conviction was granted only on an issue concerning fees deducted from tax relief at source. The appellant later sought to renew a no-case submission, raise non-disclosure grounds and advance additional personal grounds out of time. He also appealed against sentence and disqualification. The central issues were whether the scheme documents gave a legal entitlement to deduct fees or spend the remaining funds freely, whether the jury had been properly directed, and whether the sentence reflected actual or risked loss.

1. Late grounds. Following R v James [2018] EWCA Crim 285, an out-of-time renewal after refusal by a single judge requires a very good reason. A higher hurdle applies where the applicant seeks to vary or add grounds. The delays of about 20 to 21 months were unacceptable and unexplained. The applications to renew Ground 2 and introduce the new grounds were refused.
2. Fees and jury directions. The scheme documentation was strikingly unclear and inconsistent. Whether it created a binding entitlement to deduct fees from the relief at source was therefore a question for the jury on all the evidence. Under R v Spens (1991) 93 Cr App R 194, construction was generally a question of fact for the jury, subject to the exception for binding agreements. The trial judge was not required to rule on the documents alone.
3. Fraud by abuse of position. The prosecution did not need to prove strict property-law concepts. It was sufficient to prove dishonest abuse of a position in which the appellant was expected to safeguard, or not act against, the investors’ financial interests, with the requisite intention to gain or cause loss or risk of loss. The appellant’s attempt to advance a wholly different contractual basis on appeal was also rejected. The jury’s findings that investor money was applied for his own use, concealed from investors and Stadia, and used dishonestly inevitably established the elements of both offences. The convictions were safe.
4. Sentence and disqualification. The judge was entitled to treat the expenditure as actual loss. The total loss approximately reached or exceeded £1 million, supporting the Category 1A starting point under the Fraud guideline. The six-year sentence was not manifestly excessive. Applying the guidance in R v Millard (1994) 15 Cr Ap R (S) 445, the eight-year disqualification fell within the appropriate middle bracket and was proportionate.
5. The appeals against conviction, sentence and disqualification were dismissed.

1. Court of Appeal (Criminal Division). The appeals against conviction, sentence and the directors’ disqualification order were dismissed. Applications to extend time and advance additional grounds were refused.
2. Single Judge. Leave to appeal against conviction was granted only on the fees issue in Ground 3. Leave was also available for the sentence appeal; leave on the other conviction grounds was refused.
3. Crown Court at Chelmsford. The appellant was convicted on 20 July 2017 and sentenced on 17 August 2017 in case T20160061.