R v Michael Stainer

On a renewed application for leave to appeal, the decisive question on conviction is whether an asserted irregularity can render the conviction unsafe. Unsupported allegations of disclosure failures, investigatory misconduct, unfair summing-up or jury impropriety do not meet that test. An extension of time may be refused where it would serve no purpose because the proposed appeal has no arguable merit.

On sentence, the appellate question is whether the overall sentence is manifestly excessive or wrong in principle. Where the judge correctly applies the relevant guidelines and gives substantial credit for strong mitigation, that threshold is not met. A custodial term exceeding two years cannot lawfully be suspended.

The applicant was convicted at Southwark Crown Court of two counts of cheating the Public Revenue and one count of fraud by false representation under section 1 of the Fraud Act 2006. The offences concerned PAYE income-tax and National Insurance deductions made from employees’ wages but not paid to HMRC.

He received concurrent terms of three years’ imprisonment and a three-year director disqualification. After the single judge refused permission, he renewed applications for extensions of time and leave to appeal against conviction and sentence. He also sought to adduce material which he said showed misconduct by HMRC and supported his claimed intention eventually to meet the liabilities.

The central issues were whether any asserted trial or disclosure irregularity made the convictions unsafe, and whether the overall sentence was manifestly excessive or wrong in principle.

1. The applications were refused. Extensions of time for the conviction and sentence applications would serve no purpose because neither proposed appeal had arguable merit. Leave to adduce the proposed fresh evidence was also refused.
2. The sole test on the conviction application was whether the convictions were unsafe. The applicant’s allegations of disclosure failure, HMRC misconduct, unfairness in the summing-up, jury research and uncertainty about the verdicts were unsupported or immaterial. The seized aide memoire did not assist him. He had had ample opportunity to raise disclosure matters at trial, and there was no evidence of misconduct by HMRC or of jury impropriety.
3. The trial judge had fairly summarised the evidence and the applicant’s case. The agreed fact of the applicant’s insolvency caused no unfairness because the judge directed the jury not to take it into account. The proposed fresh material did not provide a basis on which the convictions could be regarded as unsafe.
4. There was no error in the sentencing judge’s application of the Revenue fraud and fraud guidelines. The offending involved sustained dishonest conduct, abuse of responsibility and loss to HMRC exceeding £473,000. The judge correctly assessed culpability and harm and reduced the five-year starting point to concurrent sentences of three years to reflect substantial mitigation, particularly the applicant’s age and previous good character.
5. The resulting sentence was neither manifestly excessive nor wrong in principle. A suspended sentence was not lawfully available because the maximum custodial term capable of suspension is two years. The court ordered the applicant to pay transcript costs of £283.92 within 28 days under section 18(6) of the Prosecution of Offences Act 1985.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 1656, the court refused renewed applications for extensions of time, leave to adduce fresh evidence, and leave to appeal against conviction and sentence.
• Crown Court at Southwark: On 19 May 2020, the applicant was convicted by a jury of two counts of cheating the Public Revenue and one count of fraud by false representation. On 7 July 2022, he was sentenced to concurrent terms of three years’ imprisonment and disqualified from acting as a company director for three years.