R v Vikas Sharma

For an indictment alleging fraud by misrepresentation under section 2 of the Fraud Act 2006, the particulars must clearly identify the allegedly false representation. A statement about future conduct is ordinarily a promise or prediction, not a representation of fact or law, although it may imply a present intention that must be clearly pleaded. Where an indictment is amended during trial, the court must assess whether the original pleading misled the defence and whether it remains fair to proceed. Significant financial harm without serious consequential impact, combined with relatively few potent culpability features, may justify movement within a sentencing category rather than an uplift to a higher category.

The appellant was convicted at the Crown Court at Isleworth of five counts of fraud by misrepresentation and two money-laundering offences. He was sentenced to four years’ imprisonment on each count, concurrently. The prosecution case initially alleged that he would arrange the purchase of foreign properties. After a submission of no case to answer, the indictment was amended to identify representations concerning refundable deposits, property security, and the use of the Hunters and Silburne names. The appellant argued that the original indictment disclosed no offence, that the amendment caused unfair prejudice, and that the sentence was excessive. The central issues were whether the indictment adequately pleaded representations within the statutory definition and whether the amended case could fairly be left to the jury.

Conviction appeal. The convictions were safe and the appeal against conviction was dismissed.

1. The particulars of an indictment must provide reasonable information about the nature of the charge and make clear what the prosecutor alleges, under section 3 of the Indictments Act 1915 and paragraph 10.2 of the Criminal Procedure Rules. A fraud indictment must identify the representation alleged to be false, together with the relevant dishonesty and gain, loss or risk-of-loss intent.
2. A statement that a person will do something may be a promise or prediction about the future. That is not a representation of fact or law within section 2 of the Fraud Act 2006. Alternatively, it may imply a representation about the speaker’s present intention. Courts should be cautious before adopting that construction, particularly where criminal liability may follow, and any such intended meaning should be expressly pleaded. The court agreed with the analysis in Government of United Arab Emirates v Allen [2012] EWHC 1712 (Admin), [2012] 1 WLR 3419, and applied the caution in British Airways Board v Taylor [1976] 1 WLR 13.
3. The original indictment was significantly deficient. The three representations identified by the trial judge could not be treated as implicit in the pleaded allegation. However, the appeal court’s task was simply to decide whether the convictions were safe. The prosecution case could therefore be saved by amendment, and the court was not functus officio merely because the amendment had not been considered before the no-case ruling.
4. Fairness required consideration of whether the original indictment had misled the defence and, if so, whether it was fair to proceed on the amended basis. The trial judge was entitled to find that any prejudice was remediable, having offered witness recall, additional preparation time, and protection against adverse comment on matters not previously put in cross-examination. The amended indictment sufficiently identified false representations of fact, and the evidence supported the convictions. The representation concerning the Hunters brand was independently sufficient.
5. Sentence appeal. Culpability was properly placed in category A, but not at its highest level. The victim impact was significant but principally financial, without serious consequential effects such as loss of a home. The case remained within harm category 2A; the sentence should move upwards within that range rather than into a higher category. The appropriate sentence before mitigation was four and a half years. After mitigation and the 20 per cent reduction for delay, the sentence was three years. The four-year sentences were quashed and three-year concurrent sentences substituted on each count.

• Court of Appeal (Criminal Division): conviction appeal dismissed; sentences quashed and three-year concurrent sentences substituted. [2025] EWCA Crim 1122
• Crown Court at Isleworth: the appellant was convicted on 31 January 2024 and sentenced on 7 February 2024 to four years’ imprisonment on each count, concurrently.