This week’s Digest considers two judgments of the Court of Appeal (Criminal Division). In Roberts the Court discussed the question of whether an applicant previously found unfit to plead could seek to appeal in person, while in Ali the Court assessed to what extent the sentencing guidelines for fraud were applicable to defendants convicted of fraudulent trading.
R v Roberts [2019] EWCA Crim 1270
The judgment of Davis LJ, dated 17 July 2019, is available here.
In this case the Court considered whether an applicant, previously found unfit to plead by virtue of being unable to sufficiently understand the course of proceedings, could seek to appeal by acting in person. The Court held that such an applicant was not competent to appeal in person, but could only appeal through a representative appointed by the court, whose professional role it would be to consider whether an appeal might validly lie. A number of procedural points followed: such a person was not competent to waive privilege, could not appeal on the standard appeal form NG, and could not be granted a legal aid certificate. A person could always demonstrate that they had recovered mental capacity, if appropriate, through the provision of fresh psychiatric evidence.
Duncan Atkinson QC acted as Amicus Curiae.
In 2014 the applicant had spoken to a number of young girls in an inappropriately familiar manner, waited outside one of their houses, stored photos of them, contacted them repeatedly via social media and letter, and invited them to meals. Three psychiatric reports separately concluded that the applicant suffered from paranoid schizophrenic delusions, assessing him as not able to meaningfully instruct counsel or take part in his defence. Applying the criteria from R v Pritchard (1836) 7 C&P 303, in February 2016 the applicant was found unfit to be tried under section 4 of the Criminal Procedure (Insanity) Act 1964 (“the 1964 Act”). A jury subsequently found that he had done the act in respect of two offences of meeting a child following sexual grooming contrary to section 15 of the Sexual Offences Act 2003.
He was sentenced to a hospital order under section 37 of the Mental Health Act 1984. Nine months out of time the applicant, acting in person despite being unfit to plead, purported to apply for leave to appeal against the jury’s finding and against his sentence, for bail, to adduce further evidence, and for a representation order. Counsel was appointed for him to put his case in his best interests and an Amicus Curiae appointed to advance submissions on the procedural complexities.
The Court rejected the applications for leave to appeal, as the trial judge could not be faulted for admitting previous evidence of the applicant’s earlier behaviour towards young girls. It then made a number of important procedural points. An accused adjudged unfit to be tried under section 4 of the 1964 Act was not competent to appeal in person against that ruling, or against any other aspect of proceedings. This was a necessary corollary of a section 4 ruling, even when, as in this case, the accused ostensibly had an awareness of the case’s details and procedural requirements. An accused could only appeal through a person appointed to represent him. Once a finding of unfitness had been made, and the jury subsequently determined that the accused did the act charged, that representative must present the defence and consider as a matter of professional obligation whether an appeal might properly lie. If the representative decides there is no arguable ground of appeal, then there could be no valid appeal.
If the Criminal Appeal Office receives an application from such an applicant in person, it should check with the appointed representative of the Crown Court that no arguable grounds were identified, and then refer the papers to the Single Judge to reject or, as the case may be, accept at their discretion. In the former situation, no appeal would lie to the Full Court. In the latter, the Single Judge could order a new counsel to be appointed to re-consider whether a valid appeal might lie. If an applicant claims to have recovered mental capacity, psychiatric evidence must confirm so.
In the instant case the applicant acting in person was asked if he was prepared to waive privilege in view of his criticisms of his own trial counsel. Strictly, this was an incorrect procedure. The court held that this was a question for a representative or fresh counsel to decide in each case. The Court also suggested that it might be appropriate to review the contents of the form of appeal to be used in section 4 cases. Finally, costs for such proceedings should be costs out of central funds. The Court suggested that the Criminal Procedure Rules Committee might wish to consider whether to introduce any new rules to cover the position outlined in this case.
R v Ali and ors [2019] EWCA Crim 1263
The judgment, available here, was handed down by Singh LJ on 11 July 2019.
The three appellants, Mr Ali, Mr Syed, and Mr Mashuk, were each convicted of one count of fraudulent trading contrary to section 993 of the Companies Act 2006. They were sentenced to 28 months’ imprisonment each. They appealed against their sentences. The Court of Appeal dismissed their appeals. While there existed no sentencing guidelines for fraudulent trading specifically, the sentencing guidelines for fraud were still applicable and their application by the sentencing judge to the present cases could not be faulted.
The appellants managed several companies which fraudulently failed to protect tenancy deposits, took rent from tenants and failed to pay it to landlords, and failed to refund deposits at the end of tenancies. They also failed to return holding deposits. It was the prosecution’s case that the number of companies involved, and the obscuring of the precise identity of the actual company being dealt with, was a deliberate attempt to create confusion and an attempt to avoid detection. The value of the fraudulent activity across all three appellants was approximately £100,000, the majority of which (£71,000) was attributable to Mr Syed.
None of the appellants had any relevant previous convictions. The sentencing judge observed that the sentencing guideline for fraud did not specifically apply to the offences of fraudulent trading. However, that guideline did list factors relevant to culpability and harm applicable to the present case.
On appeal, all three relied on the argument that the sentencing guidelines for fraud, bribery and money laundering had minimal applicability to sentences for fraudulent trading. Mr Ali’s key ground of appeal was that the sentence was too high when compared with the relevant sentencing principles. Mr Mashuk’s core ground of appeal was substantially similar, while it was also said for Mr Syed that the sentences should have been suspended. These submissions rested on the case of R v Mackay [2012] EWCA Crim 2205, which listed the factors relevant to sentence as including the amount of the fraud; manner in which it was carried out; the period over which it was carried out; the position of the defendant in the company; any abuse of trust involved; any personal benefit to the defendant; and any effect on public confidence. The defendant was sentenced to eighteen months’ imprisonment.
Singh LJ in the instant case noted that these factors are similar to those set out in the sentencing guidelines for fraud. Further, the facts of Mackay were substantially different to the present appeals. In that case, what had started as a genuine business had got into financial trouble, and the defendant had behaved fraudulently for five months in the hope that it would come right in the end. The present case consisted of deliberate, reckless trading carried out over a sustained period of time in the full knowledge that the appellants could not discharge their liabilities. The appeals against sentence were dismissed.
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