Climate Wiseman v R

For fraud by false representation under the Fraud Act 2006, knowledge that a representation was or might be untrue or misleading is a discrete element from dishonesty. Dishonesty requires the jury first to identify the defendant’s actual knowledge or belief, then to apply the standards of ordinary decent people. A defendant’s religious beliefs are not themselves on trial, but may be relevant to both issues.

Prejudicial corrective material does not automatically require a jury’s discharge. The court must assess its context, prejudice and whether a clear direction can cure it. A defendant challenging a prosecution-costs order must make full disclosure of means; the judge need only be satisfied of ability to pay immediately or within a reasonable time.

The appellant was convicted at the Crown Court at Inner London of fraud by false representation after marketing and selling an oil mixture as capable of preventing, treating or curing coronavirus. He maintained that the claims were made in good faith and reflected his Pentecostal Christian beliefs.

He appealed his conviction on the basis that the jury directions inadequately addressed knowledge, dishonesty and religious belief. He also challenged the trial judge’s handling of an inadvertent defence assertion that Trading Standards had never previously investigated him. The corrective information concerned a 2016 investigation into oils advertised as curing cancer. He further renewed his application for leave to appeal a prosecution-costs order of £60,072.50.

1. Disposition. The court dismissed the appeal against conviction and refused renewed leave to appeal against the costs order.
2. Fraud and jury directions. The judge accurately directed the jury on the separate elements of fraud by false representation under sections 1 and 2 of the Fraud Act 2006. Knowledge that the representations were or might be untrue or misleading was clearly identified as a distinct and essential requirement. The reference to dishonesty after the route to verdict did not displace that requirement or direct the jury to apply dishonesty to every element.
3. Religious belief. The trial was not a trial of the appellant’s religion or faith. However, the directions and the immediately preceding defence speech made clear that his asserted beliefs could bear on whether he believed the representations true and whether his conduct was dishonest. The absence of a further express repetition was not a material inadequacy.
4. Corrective material. Whether prejudicial material requires a jury’s discharge depends on the issues, its impact and circumstances, whether prejudice can be remedied, and the overall safety of the conviction. Here the information was deliberately introduced to correct a false impression created inadvertently by defence counsel. It was minimal, disclosed no prosecution or conviction, and had tightly limited relevance. The judge’s direction that it served no purpose beyond correcting the error permitted a fair trial to continue. A separate reverse-propensity direction was unnecessary and could have magnified the issue.
5. Costs. A defendant relying on inability to pay must make full disclosure of means. This was not a confiscation exercise requiring precise financial findings or oral evidence. The applicant had ample opportunity to explain his complex financial affairs. The judge was entitled to find, from the material and trial evidence, that he could pay the full costs within a reasonable time.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction and refused renewed leave to appeal against the costs order: [2023] EWCA Crim 1363.
• Crown Court at Inner London — convicted the appellant of fraud on 8 December 2022. On 6 February 2023, imposed 12 months’ imprisonment suspended for 24 months, 130 hours’ unpaid work, prosecution costs of £60,072.50 and a victim surcharge.