REGINA v MATTHEW SUTHERLAND & Anor

An appellant seeking to show that incompetent legal representation made a conviction unsafe must identify serious errors or irregularities caused by the incompetence and resulting unfairness or prejudice. Mere incompetence, even gross incompetence, is insufficient.

A late indictment amendment is not unfair where it merely clarifies the prosecution case and causes no identifiable prejudice. A trial judge may intervene to clarify complex evidence, assist the jury and ensure fairness, provided the judge does not display hostility, badger a witness or take over the prosecution.

A late additional ground requires proper procedural compliance and a good reason for delay. A wholly unmeritorious renewed application that wastes substantial court resources may attract a loss-of-time order.

Following a lengthy trial at Birmingham Crown Court, Sutherland and Khan were convicted on 26 February 2020 of conspiracy to cheat the public revenue, contrary to section 1(1) of the Criminal Law Act 1977. Sutherland was sentenced to nine years’ imprisonment and Khan to seven years on 26 November 2020.

Both renewed applications for permission to appeal. Khan also sought an extension of approximately 174 days. Sutherland challenged an amendment to the indictment, the jury directions and the judge’s interventions, and sought to add a ground based on Khan’s representation. Khan argued that incompetent legal representation had rendered his trial unfair. The central issues were whether identifiable errors or irregularities caused prejudice making either conviction unsafe, and whether Khan’s extension and Sutherland’s additional ground should be permitted.

Disposition. Both renewed applications for permission to appeal were refused. Khan’s application for an extension of time was also refused. A loss-of-time order was made against Sutherland, but not against Khan.

1. Sutherland suffered no unfairness from the amendment made after the prosecution case. It merely identified Convergica’s Board, rather than the defendants personally, as the maker of the representations to HMRC. The prosecution case remained consistent, no new or unforeseen obstacle was created, and no specific prejudice was identified. The jury directions, including the direction that proof of any one of the relevant representations could suffice, were agreed and caused no prejudice.
2. The judge’s interventions did not approach the manifest unfairness or hostility considered in Serafin v Malkiewicz and others [2020] UKSC 23; [2020] 1 WLR 2455. In a complex trial, detailed and forensic questions may properly clarify evidence, chronology, documents and background, assist the jury and ensure fairness. The judge neither badgered nor hectored Sutherland, nor took over the prosecution.
3. Incompetent legal representation makes a conviction unsafe only where it leads to identifiable serious errors or irregularities which result in an unfair trial. That principle was stated in R v Day [2003] EWCA Crim 1060 and approved in R v Ekaireb [2015] EWCA Crim 1930. Khan’s complaints did not meet that threshold. The relevant witnesses had been cross-examined, the late defence statement caused no demonstrated detriment, no material document or witness was identified, and Khan’s case was put before the jury. There was no identifiable prejudice making the conviction unsafe.
4. Sutherland could not introduce the proposed additional ground. No formal application to vary had been made and the procedural requirements referred to as CPR 36.14 and the guidance in R v James [2018] EWCA Crim 285, particularly at [38], had not been followed. There was no good reason for the delay and the proposed ground had no merit.
5. Applying the approach referred to in R v Gray and others [2014] EWCA Crim. 2372, the court made a loss-of-time order against Sutherland for 28 days because his renewed application was wholly without merit and consumed substantial court resources. His ability to pay for transcripts was irrelevant. The court declined to make such an order against Khan, albeit on a fine balance, in light of the apparently positive legal advice he had received. Remaining reporting restrictions were lifted.

1. Court of Appeal (Criminal Division) — In [2022] EWCA Crim 72, both renewed applications for permission to appeal were refused. Khan’s extension of time was refused. A 28-day loss-of-time order was made against Sutherland, but not against Khan.
2. Single judge of the Court of Appeal — Permission had been refused. The single judge indicated that the full court should consider a loss-of-time order in relation to Sutherland.
3. Birmingham Crown Court — Sutherland and Khan were convicted on 26 February 2020 and sentenced on 26 November 2020.