[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Randhawa v R [2012] EWCA Crim 3 (18 January 2012) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2012/3.html Cite as: [2012] EWCA Crim 3

[New search] [Printable RTF version] [Help]

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the Crown Court sitting at Birmingham
HHJ Inman
T20077898

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/01/2012

LORD JUSTICE HOOPER :

1. On 13^th December 2011, the day of the hearing, we announced our decision that the appeal against conviction was dismissed.
2. We now give our reasons. On 24 June 2010 the appellant was convicted of conspiracy to cheat the public revenue after a trial in the Crown Court sitting at Birmingham, before HHJ Inman QC and a jury. The conspiracy related to a massive mobile phone MTIC^[1] fraud, otherwise known as a carousel fraud. The indictment covered the period from 1 January 2005 to 11 November 2005.
3. Some idea of the size of the overall fraud is gained from the judge's statement in passing sentence that nearly £16 million of input VAT was reclaimed from HMRC of which some £7 million was repaid. According to the prosecution, the figures are actually higher.
4. The appellant was involved with Jaspal Singh ("Singh") in the running of a buffer company, Letting Solutions (UK) Ltd ("Lettings"). Both were directors. Singh's application for leave to appeal was refused by us on 14 October 2011, [2011] EWCA Crim 2502. In the judgment refusing leave to appeal we set out the facts and concluded that the evidence relied upon by the prosecution against the appellant and his co-defendant was overwhelming. It was conceded that an MTIC fraud was in operation involving the companies with which the defendants were involved. The only issue was whether the defendants were knowingly involved in that fraud. As we said when refusing leave to Singh and another defendant, such were the huge sums of money involved and the movements of money together with a diary which was found at the home address of Singh, and a file which was found on the appellant, that it seems likely that the jury would have had little difficulty in reaching the conclusion that the defendants were knowingly involved in the admitted fraud.
5. The appellant's appeal raises a discrete issue, concerning documents produced by the co-defendant and co-director Singh in the course of restraint proceedings brought against Singh before the trial and relating to what was then the alleged MTIC fraud. On 29 September 2009 another division of this Court presided over by me quashed a variation order made in the restraint proceedings, JS [2009] EWCA Crim 2972. The judgment was, until recently, subject to restrictions on its publication. The Court made an order preventing the publication of the judgment to, amongst other persons, those involved in the prosecution of the appellant and Singh. However a copy was made available to the trial judge. All restrictions have now been lifted.
6. JS had provided material in the course of the restraint proceedings. We shall call that material "compelled material". Paragraph 9 of the restraint order made against Singh provided that

Subject to any further order of the court any information given in compliance with this order shall only be used:-

i. for the purpose of these proceedings;

ii. if the Defendant is convicted, for the purposes of any confiscation hearing that may take place; and

iii. if a confiscation order is made, for the purposes of enforcing that order, including any receivership proceedings.

9.2. there shall be no disclosure of any material disclosed in compliance with this order to any co-defendant in the criminal proceedings.

7. An order had been sought and granted in the Crown Court varying paragraph 9 to permit disclosure of the compelled documents to the appellant. This variation order was quashed by this Court.
8. No further variation order was sought in the restraint proceedings. Thus paragraph 9 prevented any information given in compliance with the restraint order from being used other than for the purpose of the restraint proceedings and prevented disclosure of any material disclosed in compliance with the restraint order to any co-defendant in the criminal proceedings.
9. Given that those prosecuting the appellant and defending the appellant had not seen the compelled material, HHJ Inman examined the compelled material in order to decide whether any of it might undermine the prosecution's case against the appellant or might assist the appellant in his case. To assist him in this task, he received submissions from the parties. Having reviewed the material, he concluded that the compelled material was not material that might undermine the prosecution's case against the appellant or might assist the appellant in his case.
10. The appellant was given leave to appeal to enable this court to consider the safety of the conviction in the light of this ruling.
11. Following this Court's refusal of leave to appeal to Singh, Holroyde J, sitting as a judge of the Crown Court, varied the restraint order against Singh to permit the compelled material to be seen by the prosecution. He did this with the consent of Singh. This Court also and with consent lifted the order restricting publication of the judgment of 29 September 2009 made by this court in allowing the appeal against the variation order so that the judgment was available to anyone.
12. Mr Munday QC and the disclosure officer each independently examined the compelled material and other material and concluded, as had the trial judge, that it was not discloseable. That examination took into account the evidence in the trial, the unused material in the trial, the appellant's defence statement, the way in which the appellant's cases was presented including the cross-examination of Singh and the grounds, advice and skeleton argument prepared for the appeal.
13. Mr Wood QC for the appellant, whilst accepting that the prosecution's conclusion would normally be dispositive of the appeal, submitted that we should not accept the prosecution's conclusion that the material was not discloseable. Mr Wood relied particularly upon passages from the 2009 judgment of this Court in the restraint proceedings:

14. In 2009, after JR had ceased being a director [in 2008] and whilst JS was continuing to run the business, the respondent formed the view that JS, using LS, was (or might well be) carrying out a carousel fraud. That view was reached following a detailed examination of the trading records disclosed in accordance with the obligations imposed upon JS and a comparison of that material with material obtained by the respondent from other sources (and not subject therefore to paragraph 9.2).

15. Although the respondent might well have sought a variation of the order to prevent JS and LS trading, it has not taken that course. It decided, instead, to seek a receivership order. It is said that a receiver would be able to investigate in more detail than the financial investigators "the trading activity of the companies" to "permit and facilitate proper and legitimate trades and to prevent those that cannot be so categorised" ... .

16. The judge in his ruling said that he did not apprehend any breach of the privilege against self-incrimination "or not one that is such that the court cannot countenance in any event". We do not agree. The co-defendant might wish to show that it was the appellant and not him who committed the fraud, as evidenced by the fact that the fraud continued after he had resigned.

14. We shall assume for the purposes of this appeal that the compelled material did or might show that Singh was carrying out a carousel fraud in 2009 after the appellant had ceased to be a director.
15. Mr Munday gave an explanation for the conclusion that the compelled material and other material examined was not discloseable. He reminded us that the period covered by the indictment was the first ten and a half months of 2005. He said that there was nothing to distinguish the 2009 trading from the trading which took place after the indictment period up to the time that the appellant resigned in 2008. He pointed out that at the trial there was no cut-throat defence. Whilst there were some minor differences or contradictions between the cases of the appellant and of Singh, the appellant's case and that of Singh as to their lack of knowledge that a fraud was taking place were very similar. It was no part of the appellant's case that Singh was knowingly involved in the fraud. Although the appellant knew that Singh had continued trading in 2009, there was no questioning about that trading. In the words of Mr Munday, the appellant did not even dip his toes into that water. Mr Wood submits that the compelled material might have provided some ammunition. That is not the test.
16. We see no reason further to investigate the issue whether the compelled material should have been disclosed.
17. For these reasons we dismissed the appeal.
18. We add this postscript. Mr Munday tells us that the current restraint order template contains a paragraph permitting compelled material to be disclosed to the prosecution for the purposes of discharging the prosecutor's disclosure obligations. We have also looked at Chapter 21 of the CPS Disclosure Manual^[2] which gives guidance on disclosure in relation to what we have called compelled material. We do think that the Court of Appeal Criminal Division should have an opportunity to consider this provision, in the light of JS and of the cases cited in JS as well as Martin and White [1998] 2 Cr App R 385, to which Mr Munday referred us. We pose the question whether a provision permitting disclosure of compelled material to the prosecution would have the effect of breaching the privilege against self-incrimination of the person subject to the restraint order. We are also concerned that permitting disclosure of compelled material to the prosecution may lead to abuse of process arguments if the material leaks across any "Chinese wall". We were told by Mr Wood that there is an ongoing case in which this issue has arisen. On the other hand we acknowledge that what happened in the instant case was not without its difficulties. We make it clear that we are not expressing any view one way or another about the propriety or legality of such a provision.

Note 1   Missing trader intra-community fraud.    [Back]

Note 2   http://www.cps.gov.uk/legal/d_to_g/disclosure_manual/disclosure_manual_chapter_21/     [Back]