1999/13 - AG v Young [1999] UR 13 (22 January 1999)

Appeal of ROBERT JOHN YOUNG against his CONVICTION on 26 March 1998 [1998.058], by the Inferior Number, following not guilty pleas to the following charges:

4 counts of inducement to take part in arrangements with respect to the management of property by statements known to be misleading, false or deceptive, contrary to Article 12(c) of the Investors (Prevention of Fraud) (Jersey) Law, 1967: counts 1A, 2C, 3A, 5A, on each of which counts concurrent sentences of 4½ years imprisonment were passed by the Superior Number on 8 May 1998 and for leave to call further evidence

The Court of Appeal, on 12 November 1998 [1998.226], granted the Appellant an extension of time within which to apply for leave to appeal and for leave to appeal

(The Appellant appealed against sentence, which was dismissed by the Court of Appeal on 9 July 1998) [1998.147]

(The following two co-accused were also sentenced by the Superior Number as follows on 8 May 1998,[1998.094] the first on a guilty plea entered on 14 January 1998, before the Inferior Number; and the second following his conviction by the Inferior Number on 26 March 1998 on not guilty pleas to the following charges:

4 counts ofinducement to take part in arrangements with respect to the management of property by the reckless making of misleading, false, or deceptive statements, contrary to Article 12(c) of the Investors (Prevention of Fraud)(Jersey) Law, 1967: counts 1B, 2B, 3B, 4B, on each of which counts a fine of £750,000, making a total of £3,000,000, with £300,000 costs was imposed.

4 counts ofinducement to take part in arrangements with respect to the management of property by statements known to be misleading, false or deceptive, contrary to Article 12(c) of the Investors (Prevention of Fraud)(Jersey) Law, 1967: counts 1A, 2A, 3A, 5A, on each of which counts concurrent sentences of 1½ years imprisonment were passed.

SOUTHWELL. JA: Dr Young was convicted by the Inferior Number of the Royal Court on 26 March 1998 on a not guilty plea on four counts, nos. 1A, 2C, 3A and 5A charging conduct contrary to Article 12(c) of the Investors (Prevention of Fraud) (Jersey) Law 1967 (the 1967 Law). Two other co-accused were also convicted on counts charging conduct contrary to Article 12(c): Cantrade Private Bank Switzerland (CI) Limited (Cantrade), a wholly-owned subsidiary of the Union Bank of Switzerland, on a guilty plea, and Mr Alfred George Williams on a not guilty plea. The pleas of not guilty of Mr Stoneman, a senior manager of Cantrade, were accepted by the prosecution.

Dr Young was remanded to the Superior Number for sentence, and on 8 May 1998 was sentenced to 4½ years imprisonment on each of the four counts. Leave to appeal against sentence was granted by a single Judge of this Court on 25 June 1998. On 9 July 1998 Dr Youngs appeal against the sentences was dismissed by this Court.

Subsequently Dr Young sought leave to appeal out of time against conviction. On 12 November 1998 a single Judge of this Court granted Dr Youngs applications (1) for an extension of time within which to apply for leave to appeal and (2) for leave to appeal, and directed that the appeal against conviction be heard at the sitting of this Court commencing on 18 January 1999.

Dr Youngs appeal against conviction has now been heard by this Court, and this is the judgment of the Court on that appeal.

Originally Dr Young was charged on a larger number of counts. Following a preliminary hearing before Sir Godfray Le Quesne QC sitting as a Commissioner, Sir Godfray, in a judgment dated 12 January 1998 and reported at 1998 JLR 22, held that on the case then put in the Crowns case statement a number of counts against each of the accused, including Dr Young, were time-barred.

As a result the number of counts against Dr Young was reduced to six, the four already mentioned on which he was convicted, and counts nos. 4A and 6 on which he was acquitted.

The four counts on which he was convicted, and the Schedule A to which they refer, read as follows:

"COUNT 1A

Statement of Offence

Inducement to take part in arrangements with respect to the management of property by statements known to be misleading, false or deceptive, contrary to Article 12(c) of the Investors (Prevention of Fraud) (Jersey) Law 1967.

Particulars of Offence

Robert John Young and Alfred George Williams, by statements which they knew to be misleading, false or deceptive, induced Steven Frederick Cerny on or about 23 November 1993 to take part in arrangements with respect to the management of currency, the purpose or effect or pretended purpose or effect of which was to enable him to participate in or receive profits or income alleged to arise or be likely to arise from such management.

Particulars of Statements

1.Those numbered 1 to 6 in schedule A

7.Statements by Young at a meeting on or about 2 December 1991 that Youngs trading was profitable; Young knew this to be misleading, false or deceptive.

COUNT 2C (amended)

Statement of Offence

Particulars of Offence

Robert John Young, by statements which he knew to be misleading, false or deceptive, induced Arthur Geoffrey Lee on or about 10 December 1993 to take part in arrangements with respect to the management of currency, the purpose or effect or pretended purpose or effect of which was to enable him to participate in or receive profits or income alleged to arise or be likely to arise from such management.

Particulars of Statements

1.Those numbered 1 to 6 in schedule A

7.Statements by Young at the Troy Forum 1991, that he had traded at a net profit in 16 of the last 20 quarters and had suffered a loss in only 4 of the last 20 quarters, and that he was happy to make a quarter of a per cent profit on any one trade so that adding all of the fractional profits together would produce an acceptable profitable result; Young knew this to be misleading, false or deceptive.

8.Statements by Young at meetings in June 1992 and on 27 May 1993, and by telephone approximately every fortnight thereafter, to the effect that he had traded profitably; Young knew this to be misleading, false or deceptive.

COUNT 3A

Statement of Offence

Inducement to offer to take part in arrangements with respect to the management of property by statements known to be misleading, false or deceptive, contrary to Article 12(c) of the Investors (Prevention of Fraud) (Jersey) Law 1967.

Particulars of Offence

Robert John Young and Alfred George Williams, by statements which they knew to be misleading, false or deceptive, namely those in schedule A, induced Francis Colin Peter Bradley on or about 22 November 1993 to offer to take part in arrangements with respect to the management of currency, the purpose or effect or pretended purpose or effect of which was to enable him to participate in or receive profits or income alleged to arise or be likely to arise from such management.

COUNT 5A

Statement of Offence

Particulars of Offence

Robert John Young and Alfred George Williams, by statements which they knew to be misleading, false or deceptive, namely those in schedule A, induced Robert Emerson Wallace on or about 16 December 1993 to offer to take part in arrangements with respect to the management of currency, the purpose or effect or pretended purpose or effect of which was to enable him to participate in or receive profits or income alleged to arise or be likely to arise from such management.

SCHEDULE A

Statements regarding Youngs trading at the Troy Forum 1993 to the following effect:

1.That Young had successfully traded foreign exchange on behalf of Troy Trust Service programmes, that the programmes had consistently increased in value, that the programmes were a safe and conservative investment and that any losses would be small and could be contained by stop losses; Young knew this to be misleading, false or deceptive.

Statements regarding Youngs trading to the following effect in Troy promotional literature:

2.That Young had successfully traded foreign exchange on behalf of Troy Trust Service programmes, that the programmes had consistently increased in value, that the programmes were a safe and conservative investment and that any losses would be small and could be contained by stop losses; Young knew this to be misleading, false or deceptive.

Statements regarding Touche Ross to the following effect at the Troy Forum 1993 and in Troy promotional literature:

3.That Touche Ross had reviewed the Troy trading results and confirmed them with independent third parties; Young and Williams knew this to be misleading, false or deceptive.

4.That Touche Ross audited the Troy results; Young and Williams knew this to be misleading, false or deceptive.

Statements to the following effect made in Bank Cantrade references signed by Peter Morton:

5.That Young was a professional and successful trader of integrity; Young knew this to be misleading, false or deceptive.

Statements regarding Youngs trading to the following effect in Mayo quarterly statements:

6.That the investment was increasing in value; Young knew this to be misleading, false or deceptive."

When the applications came before the single Judge on 12 November 1998, over 20 grounds of appeal had been formulated by Dr Young himself. These have now been refined by Advocate Andrew Begg, who has appeared for Dr Young on this appeal, with the assistance of Leading Counsel and solicitors from England. There are now five grounds of appeal which will be considered in turn later in this judgment.

First, it is appropriate to give a brief history of the circumstances which form the background to the counts on which Dr Young was charged and convicted.

Two companies, Troy Associates Ltd. (incorporated in Liberia) and Troy Management Ltd. (incorporated in Bermuda), referred to together as "Troy", invited members of the public to deposit money to be used for trading in foreign exchange. Money so deposited was placed in an account maintained in Jersey with Cantrade by a Panamanian company, TTSI, owned by Mayo Associates SA ("Mayo"). Mayo was a Swiss company controlled by an English chartered accountant, Mr Miles Stott, in Geneva. Mayo held, and depositors were told that Mayo was holding, the depositors’ money as trustee. Cantrade kept the deposited money in an account called a collateral account. On the security of that account Cantrade allowed Troy credit, in a sum equal to the amount of the deposited money multiplied by a gearing factor which changed from time to time, for trading in foreign exchange.

The trading was conducted for Troy by Dr Young and Dr Youngs company, Anagram (Bermuda) Limited. Initially, Dr Young was only one of the foreign exchange traders for the scheme. But after about six months he and Anagram became the sole foreign exchange trader for the Troy scheme. The trading took place between about 1988 and 1993.

Various means were used to assure potential and actual investors that Dr Youngs forex trading was successful and profitable. This was indicated in Troys advertising literature, at conferences organised by Troy and in interviews with individuals.

Cantrade provided accurate bank statements monthly. Initially these were sent to both Mr Stott and Dr Young. But unfortunately after a while Mr Stott instructed Cantrade not to send the bank statements to him, and thereafter they were received only by Dr Young.

Dr Young sent to Mr Stott at Mayo valuations which differed from the bank statements. The differences could readily have been detected by Mr Stott if he had continued to receive the bank statements.

On the basis of Dr Youngs false valuations, Mayo sent quarterly reports to the investors, almost all of which were misleading and inaccurate, and purported to show that the investments were increasing in value, when in fact they were shrinking. From November 1989 Dr Young incurred substantial losses which were not disclosed to Mr Stott at Mayo, and therefore were not disclosed to the investors. Mr Stott, like the investors, relied on the honesty of Dr Young.

The fraud alleged to have been perpetrated by Dr Young was simple, but effective. The false picture which he gave in his monthly valuations, and which as a result was passed on to the investors in Mayos quarterly reports, persuaded existing investors to leave their money in the Troy scheme, and persuaded new investors to put their money into the scheme.

The co-accused who also pleaded not guilty and was also convicted, Mr. Williams, was a chartered accountant and a partner in Touche Ross. From 1992 onwards he produced certificates for Troy purporting to show successful results of Dr Youngs trading since 1990. The certificates were untrue.

In November 1993 Dr Young fell out with Troy and was dismissed as trader for the scheme. Dr Young continued to assert that his trading had been profitable. Some investors, still not aware of the full extent of Dr Youngs conduct, placed money, either new money or money to be transferred from the scheme, in the hands of Dr Young directly, without the intervention of Troy, for the purpose of forex trading.

As regards remuneration of Dr Young under the scheme, investors apparently knew that they were being charged by Troy a commission of 10% of the profits reported by Dr Young. Investors were not told that Dr Young was secretly with his wife taking a further 15% of the reported net profits, of which he passed 5% to others. Investors were also not told that Cantrade and Dr Young shared the profit taken by Cantrade from every forex trade placed by Dr Young with Cantrade. This profit was one which Dr Young and Cantrade made, whether the forex dealings were successful or not. From these commissions and profits Dr Young and his wife appear to have received about £2.5 million.

As regards the four counts on which Dr. Young was convicted, they were described by this Court in its judgment on 9 July 1998 as follows:-

"Count 1A concerned an investor, Mr Steven Cerny, who had invested in the scheme, and who had thereby lost a substantial amount. Not knowing of his losses Mr Cerny, in November 1993, placed some US$1.2 million directly with Dr Young, being induced to do so by Dr Youngs dishonest statements. Count 1A related to this inducement in November 1993. In fact thereafter Dr Young traded with some success on behalf of Mr Cerny and increased the amount of this investment. But after account is taken of the gains made in the direct investment and the losses previously made in the scheme Mr Cerny remained out of pocket in the amount of about US$350,000.

Count 2C concerned Mr Arthur Lee who was induced in December 1993 to arrange to transfer US$1.2 million from the scheme to Dr Youngs direct control. In fact funds in that amount no longer existed in the scheme because of the losses already made. Mr Lee had in fact lost about US$400,000.

Count 3A concerned Mr Francis Bradley who was, in November 1993, persuaded to participate in certain new arrangements (mainly concerning increases in the declared commissions) which were then applied to the investment scheme still being traded by Dr Young. In fact by that time the whole of Mr Bradley’s investment in the scheme, US$100,000, had been lost and nothing remained to which the new arrangements could be applied.

Count 5A concerned Colonel Robert Wallace in a matter similar to Mr Bradley."

"FRAUDULENT INDUCEMENT TO INVEST MONEY.

Any person who, by any statement, promise or forecast which he knows to be misleading, false or deceptive, or by any dishonest concealment of material facts, or by the reckless making (dishonestly or otherwise) of any statement, promise or forecast which is misleading, false or deceptive, induces or attempts to induce another person

(a)(i)to lend to him or to any other person money on terms involving payment of interest or repayment at a premium; or

(ii)to enter into or offer to enter into any agreement for that purpose; or

(b)to enter into or offer to enter into

(i)any agreement for, or with a view to, acquiring, disposing of, subscribing or underwriting securities; or

(ii)any agreement the purpose or pretended purpose of which is to secure a profit to any of the parties from the yield of securities or by reference to fluctuations in the value of securities; or

(c)to take part or offer to take part in any arrangements with respect to property other than securities, being arrangements the purpose or effect, or pretended purpose or effect, of which is to enable persons taking part in the arrangements (whether by becoming owners of the property or any part of the property or otherwise) to participate in or receive profits or income alleged to arise or to be likely to arise from the acquisition, holding, management or disposal of such property, or sums to be paid or alleged to be likely to be paid out of such profits or income; or

(d)to enter into or offer to enter into an agreement the purpose or pretended purpose of which is to secure a profit to any of the parties by reference to fluctuations in the value of any property other than securities;

shall be liable to a fine or to imprisonment for a term not exceeding seven years or to both such fine and such imprisonment:

Provided that the provisions of sub-paragraph (a) of this Article shall not apply to any inducement or attempted inducement made to any person whose ordinary business includes the business of banking, or who carries on a business of such other class or description as may be prescribed."

We have set out Article 12 in full because when interpreting paragraph (c) it is necessary to do so in the context of the whole of Article 12.

Sir Godfray Le Quesne, at pages 6-7 of the summing-up, set out what were the ingredients of an offence under Article 12(c) which the prosecution had to prove, in these words.

In our judgment that was a correct statement of the six relevant ingredients. For the purposes of the fourth, fifth and sixth ingredients, "arrangements" of particular kinds had to be proved.

Sir Godfray described the "system" by which the investors moneys were dealt with by Troy, Mayo, Cantrade and Dr Young in this way at pages 7-9 of the summing-up:

"Let me turn to what, for the moment, I will call the system about which we have been hearing. There was a concern calling itself the Troy Trust Service, which offered to manage money entrusted to it by investors. The leading figures in the Troy Trust Service seemed to have been a Mr Marsh and a Miss Gabrielli, neither of whom has appeared before us.

Troy had an arrangement with a company in Geneva called Mayo, which was run by Mr Stott who we did see and hear. Mayo had a company called, I will call it for short, TTSI. TTSI had accounts, as far as we are concerned, at two banks: ABN Amro in Amsterdam and the Bank Cantrade here.

If an investor wanted to put money into the hands of Troy to be managed, Troy told him to send the money to TTSIs account in Amsterdam at ABN Amro. Most of it was then transferred, with little delay, to TTSI’s account at the Bank Cantrade here. That was held on a deposit account called a collateral account. The money of all the investors was pooled and held together in one collateral account. That is subject to a qualification I will mention in a moment.

TTSI also owned, at the Bank Cantrade here, six or seven other accounts, each of them denominated in a different currency. These were called trading accounts and the bank allowed to TTSI a facility for trading on these accounts in foreign exchange. The facility was limited in amount but it was limited to an amount greater than the amount of the deposit. In fact it was limited to an amount produced by multiplying the deposit by a factor which varied, from time to time, between 2 and 10.

I said I should mention one qualification in a moment, that is that in fact TTSI maintained both a general account and what was called an F account. The minimum investment for the general account was 100,000 dollars and for the F account a million dollars. Each of the two had its collateral account and its trading accounts. There were also other minor differences between the way the two were conducted, but not of any significance for our purpose.

At one time Troy managed the money entrusted to it by investing not simply in foreign exchange but also in funds and bonds, but we are concerned, or at least principally concerned, with the period from 1990 to 1994. From 1990 onwards, Troy limited itself to foreign exchange trading only.

Dr. Young, the first defendant, was the chief foreign exchange trader for Troy. Indeed, in the period with which we are concerned, he was the only foreign exchange dealer for Troy and TTSI authorised him to operate the trading accounts. The foreign exchange trading, which took place as I have described, took place on the instructions of Dr Young. The investors were told that they might expect very satisfactory profits.

There is no dispute that this is the system which was being operated."

Before this Court it was not suggested that Sir Godfray had in any way incorrectly summarised the "system" or that there had at any relevant stage been any dispute about it.

The part of the summing-up of which complaint is made follows in these words at pages 9-10:

What is said by Mr Begg is that whether the "system" amounted to "arrangements" within Article 12(c) was an issue of mixed law and fact, and insofar as one of fact was one which had to be left to the Jurats as the judges of fact to decide. This principle, he maintained, was one which must be observed even where any reasonable Jurats properly directed on the law should and would reach a verdict of guilty, relying on two English cases - DPP v Stonehouse [1978] AC 55 HL(E) and R v Thompson [1984] 1 WLR 962 CA.

It must be noted that at the close of the prosecution case, the defence argued that the system, which was not disputed, did not, as a matter of law, amount to "arrangements" within Article 12(c), an argument which had been deferred from an earlier time, and which was founded on an English case, Hughes v Trapnell [1963] 1 QB 737 Div. Ct The argument appears at Day 12 of the Transcript. Sir Godfrays ruling is at Day 13 pages 1-16. His ruling was that the system disclosed by the Crown’s evidence did amount, in law, to arrangements falling within Article 12(c), and he rejected the argument there was no case to answer in this regard. This Court considers that Sir Godfray correctly so ruled. There is no appeal from that ruling.

It was in the context of that ruling that Sir Godfray made the direction to the Jurats at pages 9-10 of the summing-up which has already been quoted.

If there had been any continuing dispute on the facts as to the system operated by Dr Young and his associates, then no doubt Sir Godfray, having directed the Jurats as to the law, would have left to the Jurats the determination of the factual issues as to the system. But there was no such factual dispute. Accordingly the facts not being in dispute and the ruling on the law having already been made, correctly, by Sir Godfray, it was appropriate and indeed necessary for Sir Godfray to direct the Jurats that the system constituted "arrangements" within Article 12(c). This Court does not understand what else Sir Godfray could properly have done. For Sir Godfray to direct the Jurats as to the law, and then leave them to decide whether the system constituted, in fact, "arrangements" within Article 12(c) would have been likely to confuse, and not to assist, the Jurats. They would have been likely to seek further assistance as to exactly what was the factual issue they had to determine, given that the nature of the system was not in dispute. Sir Godfray would then have had no useful alternative to giving the direction which he did give. In our judgment there was no misdirection in this regard.

If on the other hand we were wrong on this, the direction was in our judgment at worst a technical slip such as Lord Salmon described in DPP v Stonehouse [1978] AC at pp.79B-80F. In Stonehouse there was a minority view of Lord Diplock and Viscount Dilhorne that there was not even a technical slip: per Lord Diplock at pp.68A-71C. The point was dealt with more fully by Lord Edmund-Davies at pp.87C/D-88F. There is a distinction between the present case and Stonehouse, because here the factual nature of the system was not in dispute, and the only issue was whether in law the system amounted to "arrangements", whereas in Stonehouse it was for the jury to decide whether the undisputed acts of the accused, alleged to amount to attempts to commit the substantive offence, were sufficiently proximate to the complete offence and showed an intention of the accused to commit the complete offence (per Lord Diplock at p.68A-B), issues which involved separate questions of fact as well as law.

Similarly in R v Thompson [1984] 1 WLR 962 CA there were several questions of fact for the jury to decide (p.968D-E), and the judge went too far in directing the jury that on the undisputed facts the offences of obtaining property by deception had been established. Thompson is in our judgment distinguishable from the present case.

In both Stonehouse and Thompson the "proviso" was applied, the Courts holding that the technical misdirection had given rise to no "substantial miscarriage of justice". A fortiori in the present case there was no "substantial miscarriage of justice" within Article 25(1) of the Court of Appeal (Jersey) Law 1961. But in our judgment in the present case there was in this regard not even a "miscarriage of justice".

Mr Begg took a second point which had not been foreshadowed in the grounds of appeal or his skeleton argument, that there must be "arrangements with respect to property other than securities", for the purposes of Article 12(c), that the purpose or effect of such arrangements must be to enable persons taking part in the arrangements "(whether by becoming owners of the property or any part of the property or otherwise)" to participate in profits or income from the "management …… of such property". We have underlined the word "property" in each of the three places at which it appears in Article 12(c). As Mr Begg submitted, this word must refer to the same property in each of the three places. Mr Beggs new point was that in the present case there was no such "property" to which Article 12(c) in its entirety could relate. He sought to show this by a document in which he set out various alternatives, none of which, he submitted, fitted Article 12(c).

In our judgment the position was clear. Investors were induced to part with money which was deposited with Cantrade. The purpose of these deposits was to enable Cantrade and the other parties to operate the arrangements under which Dr Young would trade in the forex markets an equivalent sum or that sum multiplied (or "geared") by a factor from 2 to 10. The property in question was the currency which Dr Young traded: the arrangements were with respect to this currency, the management was of such currency, and though the investors did not necessarily become owners of the currency, the words "or otherwise" sufficed to cover the position. At the heart of the Article 12(c) fraud in the present case was the system by which investors deposited money, enabling Dr. Young to trade in currency in this way. As was put to Mr Begg in argument, it made no difference whether the "property" was currency or wheat or metals or any other form of property.

In our judgment this second point was also misconceived, and accordingly the first ground of appeal fails.

The second ground of appeal is that Sir Godfray "misdirected the Jurats with regard to the ingredients of the offence under Article 12, which it was incumbent upon the prosecution to prove. He failed to direct them that, inter alia, the prosecution had to prove that the Appellant intended, by the false statement alleged, to induce the person in question to take part in the activity described in Article 12".

We have already set out the six ingredients of Article 12(c) which were given in the summing-up to the Jurats, and we have already expressed our conclusion that in the summing-up Sir Godfray correctly stated those ingredients.

Mr Begg for Dr Young contended that there is a seventh ingredient, that the accused intended, by the false statement, to induce the person referred to in each count to take part in the arrangements within Article 12(c).

Mr Begg relies to a substantial extent on the summing-up of the then Bailiff and the decision of the Court of Appeal in AG v Kirch and Lapidus (24 September 1987) Jersey Unreported. The relevant charge under Article 12 against Mr Lapidus was that "by a statement which he knew to be false he attempted to induce persons to enter severally into agreements for disposing of securities ...", the false statement being that there was no relevant agreement other than those already disclosed. In truth there was such an agreement to pay an additional £350,000 to Mr Lapidus, which was not disclosed. The Bailiff and the Court of Appeal were dealing with a charge of an attempt to induce, which necessarily involved an element of intention. So under section 1 of the English Criminal Attempts Act 1981, a person is guilty of attempting to commit an offence to which that section applies if, with intent to commit the offence, he does an act which is more than merely preparatory to the commission of the offence. Attempt has in English law always been a crime of specific intent and the 1981 Act made no change in English common law in this respect.

As regards the substantive offence under Article 12(c) in our judgment there is not an additional ingredient of the offence consisting of an intention to induce as well as an actual inducement. Such an additional ingredient will not be implied into a statutory offence where the mental elements of the offence are expressly and clearly stated in the statutory provision: see Archbold (1999) para. 17-8. In the case of Article 12(c) the six ingredients stated by Sir Godfray are expressly and clearly set out in this provision, and there is no basis for implying any further ingredient of intention to induce. It is not certain whether the Bailiff or the Court of Appeal in AG -v- Kirch and Lapidus considered that such an additional ingredient was necessary to the substantive offence, but if they did, that was obiter and in our judgment not correct.

Whether intention was such an additional ingredient was argued on Day 21 (see page 36 line 22 to page 37 line 10) repeating submissions which had already been made at the close of the prosecution case (Day 13 pages 25-26). At Day 21 page 51 Sir Godfray ruled in this way:

We agree with this ruling which correctly reflects the wording of Article 12(c).

Mr Begg submitted that the consequences for an accused would be severe if the prosecution were not required to prove intention as part of the substantive offence under Article 12 (c). He submitted that if intention were held not to be an essential ingredient of the offence, then an accused would be liable, for example, in circumstances in which he made a false statement to A (perhaps to impress A), and A then repeated the statement to B without either the accuseds knowledge or permission, and B then acted on the statement by entering into the arrangements. The accused would be strictly liable for the consequences of all republications of his original statement regardless of his intent.

In our judgment this submission is misconceived. In the circumstances of this example the accused would not be liable. If false statements are made by someone other than the accused, the accused could not be convicted of an offence under Article 12(c) unless it was proved that the accused knew that a false statement made by him would be passed on by the recipient of his statement to other persons for the purpose of inducing those persons to enter into relevant arrangements.

This matter was dealt with in the summing-up by Sir Godfray at pages 13-15 in this way:

"The first question to be considered is what statements did Dr Young make? To put it in a slightly more comprehensive way, and a slightly more accurate way: What statements must Dr Young, in law, be considered to have made? First, obviously, things which he said or wrote himself. I shall remind you in a moment of evidence of things which Dr Young said at Nassau in 1991, in Bermuda in 1993 and in various conversations over the period with which we are concerned.

Secondly, it is, in law, possible certainly, in appropriate circumstances, for Dr Young to be considered to have made statements which were actually made in the sense of spoken by other people. If a man appoints another to speak for him; that is what is called agency, and the man is responsible for what the agent says, does, as if he had said it himself.

In this case, we have no formal agency, but the law goes a little further than that. If A gives information to B, knowing that B will pass it on to C and not giving B any caution or warning against doing so, A may be considered to be giving the information to C.

This will be relevant to the much disputed matter of the quarterly reports which were given by Mayo to each individual investor. You will have to consider: Did Mr Stott, who prepared those reports, reproduce information given to him by Dr Young so closely and did Dr Young know that he would reproduce it so closely and communicate it to the investors that Dr Young should be considered himself to have given to the investors the information they derived from Mr Stotts reports? That is a question upon which you will have to decide.

It is also possible, in law, for a man to be considered to have made a statement which was made by somebody else in writing. A very similar principle applies: That if A gives information to B, knowing that B will pass it onto others in written form, without giving B any caution or warning about doing so, then A may be considered himself to have given that information to the others to whom B passed it.

This is relevant to a particular incident to which we shall come, in which it is alleged by the Crown particular information was given by Dr Young to Troy, with the knowledge that Troy would publish it in their periodical reports."

Sir Godfray then dealt with the particular statements relied on by the prosecution, carefully making it clear to the Jurats, on each statement, that they could not find Dr Young guilty of an offence under Article 12(c) unless the prosecution had proved to the requisite standard of proof that Dr Young either made the statement himself or knew that Mayo or Troy, for example, would be passing the statement on to other persons for the same purpose of inducing those persons to take part or to offer to take part in the relevant arrangements. The passage in his summing-up on Day 23 runs from page 15 line 4 to about page 33, and in this long passage Sir Godfray dealt fully with the question whether statements made by persons other than Dr Young were statements based on statements made by Dr Young to them and which Dr Young knew the other persons would make for the relevant purpose. Thus at pages 19-22 of the summing-up Sir Godfray dealt with Mr Williams statement at the Bermuda conference that Touche Ross audited regularly the results of Dr Youngs trading. After considering the evidence in some detail Sir Godfray at page 22 lines 4-7 directed the Jurats:

Sir Godfray also made clear to the Jurats at page 26 in relation to the Troy promotional literature that Dr Young could not be considered to have made all the statements contained in that literature and went on to say:

The notion that the Article 12(c) offence was treated by Sir Godfray as being an offence of strict liability is therefore not correct.

The wording of Article 12 and in particular of paragraph (c) does not give rise to a further ingredient of intention, beyond those six ingredients which Sir Godfray spelled out in the passage we have already cited.

Reference was made to Article 22 of the Banking Business (Jersey) Law 1991 (the 1991 Law). It was suggested by Mr Begg that this was intended to replace Article 12 of the 1967 Law. This appeared to resurrect a ground of appeal now abandoned, to the effect that this Article effectively repealed Article 12 of the 1967 Law. In our judgment both Articles stand as part of the Jersey Law, and no question of replacement or repeal arises. Furthermore, no guidance to the interpretation of the 1967 Law can be derived from a subsequent Law, except naturally insofar as the later Law amends or repeals the earlier.

In relation to this ground of appeal Mr Begg submitted that, in one major respect, the absence of a direction on intention in this case was especially important. We quote from paragraph (f) of his skeleton argument:

The propositions set out in this paragraph (f) were to some extent run by the defence at the trial, and were plainly rejected by the Jurats. The relevant passage in Sir Godfrays summing-up is at pages 35-41, where he directed the Jurats on the extraordinary case which Dr Young was putting forward.

The starting point is that the painstaking analysis by Mr Engineer, the accounting expert called by the prosecution, showed that any statement made by Dr Young that his foreign exchange trading for Troy was or had been profitable, or had led to an increase of investors funds, was untrue (summing-up, page 35). The Jurats on the evidence before them, including the evidence of Dr Young, were bound so to conclude.

But as Sir Godfray then explained, there remained the question, whether Dr Young knew that what he was saying was untrue.

The first way in which Dr Young tried to contend that he did not know this was by saying that he had given to the words "profit" and "profitable" a special meaning of his own. The passage from Dr Youngs evidence, which Sir Godfray quoted at pages 36-37 of the summing-up, was as follows:

"Question:On your hypothesis, there can be losses in fact but profits in theory; is that right?

Answer:I would not say profit in theory. I would say there can be losses in fact yet good trading decisions. There are trading decisions which, in some overall sense, are good. Plainly there cannot arise losses without trading decisions that were unsuccessful.

Question:So there can be losses in fact but based on good trading decisions?

Answer:Based on trading, a set of trading decisions, which were, in an overall sense, as a set of decisions, good decisions.

Question:Yes, they may have been good in every sense except that they did not make money?

Answer:On the particular account in question, yes, that is correct.

Question:I see. So that if one did not make money, if the trading decisions were good, on your hypothesis, one could fairly describe oneself as successful?

Answer:I suppose so, yes.

Question:Could one, on your hypothesis, describe oneself as profitable?

Answer:In some abstract sense, yes".

To suggest that by making losses one could "in some abstract sense" be "profitable" was one of the more ludicrous propositions put forward by Dr Young. Not surprisingly it was not accepted by the Jurats. The point was put to the Jurats carefully by Sir Godfray in this way (pages 36-37 of the summing-up):

The second way in which Dr Young tried to put the argument was described by Sir Godfray at pages 38-41 of the summing-up. Again it is convenient to quote what Sir Godfray said:

"I come to the other distinction, that is to say between cash balances and exposure. Dr Youngs evidence was that the monthly reports he sent to Mr Stott were not meant to be reports of the cash value of the accounts, they were meant to be a valuation of what Dr Young called exposure to fluctuations in foreign exchange rates.

It is agreed that what had to be reported was not simply the figure appearing at the month end as the balance of the account - that figure would reflect only closed positions, closed and cleared positions - it was always intended and understood that some allowance would be made at the month end for open positions. Dr Youngs evidence was that that was part of what he meant by saying that he was giving a valuation of exposure.

But, as the example which he showed us made clear, a much more important component of what was added, in order to give a valuation of exposure, was the valuation of options. That was much more important because the options were treated in these valuations in what appears, at least to me, to have been a remarkable way. The value put upon the options was not merely the premium which would have been obtainable for the options, it was that, but it was also the total sum which the option would in due course entitle Dr Young to buy. In other words, the valuation included a sum in one currency which he would be entitled to buy but took no account of the sum in a different currency which he would have to pay.

Mr Engineer used some strong-ish language in describing this method of valuing options."

Pausing at that point, what Mr Engineer, the accounting expert, said about Dr Young’s alleged method of valuation appears from Mr Engineers evidence in chief at Day 10 pages 25-28. In the light of Mr Beggs submissions, it is appropriate to make quite a long quotation from that evidence:

"Q:Your third column from the left on the table, Mr Engineer, is headed: "Option premiums", expressed in US Dollars. Could you say what an option is?

A:Yes, an option is just a choice. It bestows the right on the holder, and it is a right, not an obligation, to buy or sell a specific in this case currency at a specified price at a specified date in the future.

Q:Option premiums; what is an option premium?

A:It is the worth of the option at the date you buy it. It is the cost, if you like.

Q:Purchase price of that option?

A:Correct.

Q:In your column "option premiums", do you show the list of the premiums paid for the relevant option?

A:Yes.

Q:In that column, as one proceeds through the table, when losses are shown, what does that mean, what does that signify?

A:That means Dr Young has paid a premium and the option has expired, worthless.

Q:How is an option valued?

A:It is valued dependent on, broadly speaking, three factors; the unexpired time to the expiry date, the volatility in the price and the underlying, in this case, interest rate and spot currency.

……………

MR. WHELAN: Perhaps we could take an example. If we move to page 14, which is the continuation of the same table, do you have the month of June, 1992?

A:Yes, I do.

Q:In the option premiums column is shown a negative sum of 65,559?

A:That is correct.

Q:Could you say what that signifies?

A:That would be the premium paid to purchase some options. Generally the premium on currency options would be somewhere in the region of 1 percent or so.

Q:Can you say, from the work that you have done, whether there were any options as at the end of September,1993?

A:No, there were not.

THE COMMISSIONER: This means, in June, 1992, that the amount which this option produced when it is closed was less than the premium will have been paid for it?

A:The option, in effect, would have expired at the strike date, at the exercise date, worthless, and, therefore, you would simply have lost your premium.

THE COMMISSIONER: So 685,000 was the premium paid?

A:Yes.

MR. WHELAN: I will ask you, but you will not be able to give me a specific answer, what was the gross value of the currency represented by a premium of this particular level?

A:As I say, Sir, probably, I would guess, slightly in the region of, I do not know, 70 million dollars, something like that. Yes. The premium, roughly, would be about 1 percent, I guess.

Q:There has been evidence that Dr Young indicated to Myles Stott of Mayo that the gross value of options could be taken into account as part of the valuation. Will you let me have your reaction to that proposition?

A:It is difficult to understand what would be meant by the gross value. The value of the option, ie, the worth of it, is simply as displayed here. If you mean the 70 million, it would be insane to value that as 70 million."

In the judgment of this Court to describe Dr Youngs claim that options could be valued by reference to "gross value" as "insane" was not much of an over-statement by Mr Engineer. The Jurats would be bound to reject as fanciful such a far-fetched claim.

"Before I come to that, I will remind you that what had been agreed between Anagram and Mayo at the outset was that Anagram would provide Mayo with monthly statements, including currency balances and the account valuation. Mr Stott, you may think, might, therefore, have been justified in assuming that that was what Dr Young was intending to give him by his monthly reports.

It is in fact admitted by Dr Young that the word "exposure" was never mentioned either in any of the valuations themselves or in any other document before September 1993, when the bubble was about to burst.

You may think that the inclusion of the statement that these were valuations of exposure derives its importance, from D. Young’s point of view, from putting the value on options so palpably ridiculous that it is impossible to believe that Dr Young ever intended it.

It is also to be borne in mind that, while Dr Young said that his monthly reports were intended to be valuation of exposure rather than of cash balances, no attempt was made in evidence to show you how, if they were valuations of exposure, conducted on Dr. Young’s principles, they were reconcilable with the reports which Mr Stott was passing on to the investors or the bank statements Still it is a matter of evidence and it is a matter for you.

If you think that there is any possibility that Dr Young, indeed, held this view about valuations of exposure and meant, when he submitted his monthly reports to Mr Stott, to give such valuations of exposure, then it will follow that when, by his valuations, he said the value of investments was increasing, he did not know that the statement which he intended to make was untrue.

You can find that those statements were untrue only if you are sure that those statements represented, and were meant to represent, valuations, in the sense of valuations of accounts in accordance with the original agreement which Anagram and Mayo had made."

Thus, as we have already said, Dr Youngs claim was carefully put to the Jurats, and was not accepted. The suggestion in the skeleton argument that this claimed method of valuation is of importance to the question of intention, if that were an ingredient of the offence, is not well-founded.

The third ground of appeal is that by reason of the prejudicial material, published in the media concerning the appellant and this matter, it was not possible, on the balance of probabilities, for there to be a fair trial and/or the Attorney General failed to enforce or utilise the law of contempt so as to safeguard the fairness of the criminal proceedings.

As put in the skeleton argument, this ground of appeal was based solely on media reports. However, this Court was supplied before the hearing with over forty interlocutory judgments in civil proceedings connected with the matters the subject of the criminal proceedings, dated between December 1993 and December 1998, and Mr. Begg at the hearing sought to extend this ground of appeal so as to include alleged prejudice due to the civil proceedings.

We consider first the media reports. The authorities on which Mr Begg relies are decisions of English Courts in relation to trial by jury. Usually the question arises in England either on an application to stay the trial on the ground that a fair trial and verdict would not be possible, or on an application by the Attorney General to commit for contempt. Since rather different considerations apply in England in relation to contempt (the position being largely covered by statute), the relevant English authorities for present purposes are those relating to applications to stay the trial.

(1)it would have been open to Dr Young to apply to stay this trial if he and his Advocate had considered that any undue and adverse pre-trial publicity had occurred, and no such application was made;

(2)this trial was not before a jury, but before Jurats who are permanent judges of the Royal Court, highly experienced, and well-used to concentrating on relevant matters and excluding from their deliberations all irrelevant matters;

(3)the Jurats are in particular well used to following the directions of the qualified Judge with whom they sit, and in this case Sir Godfray gave a firm direction to the Jurats (summing-up, page 2) to put out of their minds anything they might have read in the press and to consider only what they had heard in the trial, the documents put in evidence, and nothing else;

(4)given the extent and nature of the financial services available in and from Jersey, it was inevitable that a high-profile alleged fraud such as this would attract much publicity in the ordinary course of media reporting, and it was inevitable that all the Jurats would have known something about the case before the trial began, and they would therefore pay the more attention to the direction given by Sir Godfray: (3) above;

(5)the Royal Court does not have power to restrict the publication of reports of proceedings in Court, except in cases concerning children;

(6)in the absence of any complaint by Dr Young or any of his co-accused (and no such complaint was made) it is unlikely that the Attorney General would have moved for contempt unless there was a particularly serious piece of media publicity.

The test to be applied is similar to that applying to an application to stay: whether the effect of the publicity, whether pre-trial or during the trial, is such as to render the verdict so unsafe as to amount to a miscarriage of justice.

We have examined each of these extracts with some care. In relation to those earlier in date than when the criminal proceedings were brought in 1996, no question of contempt could have arisen anyway, but we have read them with all the other extracts to see whether there was anything which could have affected the trial or the verdicts. The "Jersey Evening Post" might well have been read by the Jurats on each occasion. It seems less likely that Reuters Business Briefing would have been part of each Jurat’s daily scanning of his television or computer screen, though we were referred to one extract from the "Observer" newspaper which they might have seen. In our judgment there is nothing in any of the extracts we have read, separately or together, which could properly be said to amount to undue publicity which could or did affect the trial or the verdicts in any way. In our judgment the media publicity

In the view of this Court the reporting by the "Jersey Evening Post" and the media reports included in Reuters Business Briefing were except on a very small number of occasions accurate, and anyway reasonably restrained. If the Attorney General had moved for contempt against either organisation, the Attorney Generals application would have failed in limine. Put shortly, there is nothing in the media reporting to support the third ground of appeal.

In his oral submissions Mr Begg added an extended attack on the extent to which, he alleged, the Jurats were likely to have been affected by the media publicity, and by the civil actions which had been commenced in 1993, and which, though they had not yet come to trial, had involved a large number of interlocutory hearings and judgments.

Mr Begg initially raised, and subsequently withdrew completely, a suggested attack on the independence of the Royal Court, whether because of the unique position of the Bailiff or otherwise. But he alleged that there was a risk of the absence of impartiality because the pre-trial publicity had put the Jurats in a position in which they were likely to wish to maintain the reputation of the financial services provided in and from Jersey, and so had come under pressure to convict Dr Young. So, he alleged, it was not possible to have a fair trial.

This attack was not based on any evidence. It was put solely on the basis of speculation that the effect of the publicity could have put pressure on the Jurats. There was no evidence of any such pressure. As already indicated, Sir Godfray Le Quesne gave a strong direction to the Jurats to ignore any previous publicity, and to decide their verdict solely on the basis of his directions as to the law and of the evidence adduced before them. As permanent judges the Jurats are well experienced in dealing with cases in this way. Further the Judge retired with the Jurats and therefore was well placed to ensure that in their deliberations all pre-trial publicity was ignored. The suggestion, implicit in the allegation, that a Judge of the experience, calibre and standing of Sir Godfray, would have remained silent while the Jurats gave effect to the alleged pressure resulting from the media publicity was unfounded and inappropriate.

In relation to the civil proceedings Mr Beggs oral submissions roamed into wider pastures. He suggested that Jurats Rumfitt and Tibbo were or might have been affected in their judgment by having sat as Jurats on some of the civil interlocutory proceedings, and by having discussed the civil proceedings when they met their fellow Jurats, alternatively the public perception might or would be that their judgment was or might have been affected in this way. There was no evidence of this on which Mr Begg could rely. All that he could put forward was mere speculation, and no more. Insofar as he suggested that Jurats Rumfitt’s and Tibbo’s judgment was affected in this way, that seemed to amount to an allegation of impropriety in these Judges without a shred of evidence to support the allegation, which accordingly this Court rejects.

There are two other aspects of these allegations, the possibility and the perception that the two Jurats judgments might have been affected. On closer examination it became apparent that there was nothing to support these allegations. Jurat Rumfitt had sat on only four occasions in the civil proceedings, the first three as long ago as 1994 and in matters not directly involving consideration of allegations against Dr Young or his attempts to rebut them, and the fourth occasion in 1997 when only questions of peripheral relevance were involved. Jurat Tibbo had sat only on one occasion in 1998 when only questions relating to whether the Bailiff should récuse himself were considered. Having considered all the material now before this Court we are satisfied that no question of the Jurats judgment being affected by the civil proceedings did or could arise. (In any event, if it had been, that would have been immediately apparent to Sir Godfray, and he would have immediately acted to ensure that the civil proceedings like the media publicity were dismissed from the Jurats consideration in line with his summing up direction). As Mr Whelan pointed out, the fact that in this case the Jurats were not affected in the manner alleged can be seen from their acquittal of Dr Young on one of the six charges.

The next point raised by Mr Begg was that in England the Magistrates Court Act 1980 restricts the reporting of committal proceedings, while in Jersey there is no such restriction. He contended that the absence of such a restriction by a Jersey statute or Jersey common law amounted to a breach of the European Convention on Human Rights, Article 6. This was in our judgment a misconceived contention. In every part of the territories within the States which have adhered to the Convention different societies in different states deal with the balance between (1) the freedom of expression for the media and others in reporting criminal proceedings, and (2) the need for fair trials not rendered unfair by untrue or inaccurate reporting (both of which are guaranteed by the Convention) in different ways.

There is a clear margin of appreciation in the ways in which different states ensure this balance. Jersey has elected not to limit the reporting of committal proceedings, subject always to the law of contempt, no doubt in part because many trials are before a Judge sitting with Jurats and not a jury. Jurats as permanent judges of fact, chosen and elected for their experience, distinction, and judicial qualities, are well placed, with the assistance of the Judge, to provide a dispassionate tribunal. Furthermore, it is always open to a defendant to apply before or at the start of a criminal trial in Jersey for a permanent or temporary stay or for other steps to be taken to remedy the effect of pre-trial publicity. Dr Young and his experienced Advocate clearly decided not to apply for such a stay, correctly because on the material placed before this Court no such stay would have been granted.

Mr Begg finally under this third ground of appeal raised an entirely new point, without any prior warning to the Court or to the prosecution, and without seeking the necessary leave of the Court. This Court deprecates such an attempt to raise a new point in this way. The Court required Mr Begg to amend his grounds of appeal overnight. His amended grounds of appeal stated the new point in this way:

The civil proceedings brought against Anagram and Dr. and Mrs. Young (as defendants) and others of their companies and Cantrade (as parties cited) by Mayo, Troy and TTSI were commenced on 24 December 1993 by Order of Justice, and ex parte Anton Piller and Mareva Orders were made by the Royal Court against the defendants and the companies cited. The basis of the claim was that large amounts of money were missing from the trading and collateral accounts with Cantrade and that the defendants were unable to account for a sum in excess of US$24.7 million. The orders required Dr and Mrs Young, and the other defendants and their companies, to submit an affidavit of their assets.

No complaint is made about the compulsory affidavit of assets. This was expressly confirmed by Mr Begg. Mr Begg did, however, contend that if Dr Young wished to apply to discharge the ex parte orders, he needed to serve an affidavit, and if this affidavit became available to the prosecution that would give the prosecution an unfair advantage and would be contrary to his rights of a fair trial and of silence.

This Court was shown in support of Mr Beggs contention only one affidavit of Dr Young sworn, it appears, on 25 March 1994. This affidavit was sworn and served on the plaintiffs voluntarily, and not under compulsion whether of an order or otherwise. We were shown no other affidavits of Dr Young, and none of Mrs Young or of the other defendants or parties cited.

Initially Mr Begg alleged that the Advocates acting for Mayo might have disclosed the affidavit to the prosecution. But it became clear that actually the prosecution obtained a copy of this affidavit and many of the documents pursuant to Article 1 of the Investigation of Fraud (Jersey) Law 1991 ("the Article 1 powers"). This is a usual and sensible process, given that in the case of most frauds, particularly serious and complex frauds, it is almost always necessary to rely in evidence on the alleged fraudster’s contemporaneous records.

Advocate Whelan for the prosecution correctly submitted that the prosecution had obtained no advantage, fair or unfair, from this or any other affidavits of Dr Young. The information contained in them was substantially the same as Dr Young had supplied in correspondence to Mr Stott in December 1993, and became known to the prosecution from sources other than Dr Young, and not by the use of any compulsive powers against Dr Young. The explanation of Dr Youngs conduct, which he gave in correspondence with Mr Stott in 1993, was substantially the same as the subsequent explanations in his affidavit and at trial. We have already referred to relevant parts of those explanations which were designed to mislead and correctly rejected by the Jurats. No question of any breach of any of Dr Youngs rights of silence and absence of self-incrimination arose. The affidavits were not used in the criminal trial, nor were the statements made by Dr Young when questioned under the Article 1 powers. Documents such as the correspondence between Dr Young and Mr Stott were adduced in evidence, but all of these documents came into existence independently of any investigation or any use of compulsive powers. Mr Begg did not contend that the Article 1 powers, or their use, were in any way contrary to the rights under the Convention. Unlike the case of Saunders -v- United Kingdom (1996) 23 E H R R 313 no use was made in the criminal trial of any of the information obtained from Dr Young under the Article 1 powers. Further, Dr Young was placed at no disadvantage by setting out in his affidavit explanations which he had already given in extensive correspondence with Mr Stott in 1993.

This additional ground was, as we have indicated, raised for the first time during Mr Beggs submissions, and in a manner contrary to the procedural directions of this Court. It turned out to be unfounded both in law and in fact.

The fourth ground of appeal is that, after the Jurats had retired to consider their verdict, and before they had delivered it, a material irregularity occurred whereby they had contact with the prosecution.

This ground arises from the return of the Jurats and the Commissioner to the Court, while they were considering their verdicts, so that they could hear again what the co-accused, Mr Williams, said at the Troy Forum in Bermuda in 1993. This was an important part of the prosecutions case against Mr Williams, since he had said in answer to a question that Touche Ross audited regularly the results of Dr Youngs trading. This is a statement to which we have already referred in this judgment, and as we have indicated, in his summing-up to the Jurats Sir Godfray had directed the Jurats that in law there was no evidence which would justify them in finding that Dr Young adopted that statement as his own. So in returning to the Court for this purpose the Jurats were concerned only with the case against Mr Williams.

The transcribing arrangements for the trial were by the "Live Note" system which provides a computerised instant transcript available simultaneously on screen, and able to be considered later either as a sound recording or by bringing the text up on a computer screen or through the transcript on paper.

This Court has seen an affidavit of William Redgrave, an English barrister and the junior member of the prosecution team, statements of the two "Live Note" operators, and affidavits of Dr Young and Advocate David Le Quesne who represented Dr Young. The account they give is accepted by Mr Begg and the prosecution as being correct, though Mr Begg asked us to speculate that different parts of the recordings might also have been heard, an invitation which we decline to accept, because it was no more than mere speculation, not founded on any evidence.

The two operators were sitting in Court waiting for the proceedings to resume. Sir Godfray came into the Court and asked the operator to play back the recording of what Mr Williams had said at the Troy Forum for the Jurats. They were not able to achieve this, so one went to the prosecution office to ask for help. Mr Redgrave returned to Court and played back for the Jurats and Sir Godfray the Troy Forum recording of Mr Williams statement which was on a specially prepared compact disc and which had been heard earlier in the course of the trial. The recording was played back both through loudspeakers and through cordless headphones. When the Jurats and Sir Godfray had heard the recording of Mr Williams statement, they thanked Mr Redgrave and again retired to consider their verdicts.

The recording was played back in open Court. No one was present from the defence. Mr John Goldring QC who was also assisting the prosecution came back into Court and heard the recording being played back. Members of the public were in the Court, as well as the press. No one spoke to or had any contact with the Jurats while they were in Court except Sir Godfray, and Mr Redgrave for the purposes of ensuring that the correct part of the recording was played back.

Mr Begg argued that this was a serious and material irregularity, in particular, because:

Mr Begg argued that this irregularity was so serious that it undermined the propriety of the convictions. For this he relied on the English Court of Appeal decision in R -v- Riaz; R -v- Burke (1991) 94 Cr.App.R. 339. The main question arising in those cases was whether the jury after retirement was entitled to hear a tape recording of a police interview, to which question the Court answered that the jury were so entitled. Clearly in the present case the Jurats were entitled to re-hear the recording of what Mr Williams had said. What is more relevant for our purposes is that the English Court of Appeal held that where the jury wish to re-hear a recording, the better practice is for the judge in his discretion to order the reassembling of the court so that the jury can hear what they wish to hear in open court. The reasons for this were stated in this way:

See also the English decisions in R -v- Emerson (1991) 92 Cr.App.R. 284, R -v- Aitken (1992) 94 Cr.App.R. 85, and R -v- Hagan (1997) 1 Cr.App.R. 464.

These considerations have much less force where the verdicts are to be those of the Jurats, not a jury, who retire with the Judge, and the Judge is able to exercise control over what is heard by the Jurats. Nevertheless, this Court considers that it is better practice for the trial court to be reconvened so that the re-play of the recording is heard by all, and any submissions (if any) in relation to the recording can be made.

Mr Begg also relied on a number of English cases concerning contact being made with the jury during their deliberations by persons who should not have had contact with them, including R -v- Davis (1960) 44 Cr.App.R. 235, R -v- Lamb (1974) 59 Cr.App.R. 196, R -v- Rose et al [1982] 1 WLR 614, and R -v- Lydon (1987) 85 Cr.App.R. 221. He relied on these cases as showing that any such contact, particularly contact between a member of the prosecution team and the Jurats in the absence of the defence, amounted to a serious irregularity. The present case is, however, clearly distinguishable. The undisputed evidence shows that the contact was only for the purposes of enabling the Jurats to hear again Mr Williams’ statement, and was under the direct control of the Judge. Nevertheless, as I have said, this Court considers that it would have been better practice for the whole Court to be reconvened so that any such contact, however limited, could be in the presence of the defence.

Mr Begg submitted that this amounted to a breach of natural justice, and that the correct test for this purpose is not whether the person affected was prejudiced by the defect in procedure, but whether there was a material risk that that person would be affected, citing the decision of the Royal Court in In re Pearce, a decision concerning the dismissal from office of a Centenier, decided in 1990. The essential question in our judgment is whether the decision of the Jurats might have been different if the better procedure had been followed, and the recording had been heard after the whole court had been reconvened. It is clear from the circumstances we have described that the failure to follow that procedure had no relevance to the case against Dr Young, and it cannot be said that the verdicts against him might have been different.

In our judgment this was, at most, an immaterial irregularity of no relevance to the case against Dr Young. Accordingly this ground of appeal fails.

This ground of appeal was that the individual and/or cumulative effect of the other four grounds was such as to render the convictions of Dr Young a miscarriage of justice. We have rejected each of the first four grounds of appeal, and we are satisfied that there is nothing in them whether separately or cumulatively to justify setting aside Dr Youngs convictions.

In this case there has been no miscarriage of justice. On the contrary, on the evidence against Dr Young and his own evidence, it is clear that he was correctly convicted on the four counts. His appeal is dismissed.

In the present case Dr Young was afforded facilities in prison, in part as a result of an Order of the Royal Court, which went far beyond the facilities normally accorded to a convicted person who is appealing to this Court. In part this was due to Advocate Beggs difficulties as a sole practitioner in devoting sufficient time to the preparation of Dr Youngs appeal. We make no criticism of the Royal Court, or of the authorities who have spent substantial public money in making these facilities available. But we wish to make it clear for the future that:

AG -v- Associated Newspapers Limited [1998] EMLR 711 (Entertainment and Media Law Reports)

R -v- Kevin Maxwell & Ors. (6 March 1995) Unreported Judgment of the Crown Court of England

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