Neutral Citation Number:
[2014] EWCA Crim 717
Case No: 201206316 C3 201206317 C3 201206319 C3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Harrow Crown Court
His Honour Judge Greenwood
T20127045
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
15 April 2014
Before :
LORD JUSTICE FULFORD
MR JUSTICE HICKINBOTTOM
and
MRS JUSTICE SIMLER DBE
- - - - - - - - - - - - - - - - - - - - -
Between :
Armajit Singh-Mann, Kamlesh Panchal and Jagjeet Singh Chahal
- and -
Regina
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Mr Arlidge QC
(instructed by
Saunders Law Limited
) for
Armajit Singh-Mann, Mr Etherington QC(instructed by Saunders Law Limited) for Kamlesh Panchal and Mr Hines (instructed by Brett Wilson LLP) for Jagjeet Singh Chahal
Mr Haycroft
(instructed by
CPS Specialist Fraud Group
) for the Respondent
Hearing date: 28 January 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Fulford :
Introduction
1.
On 10th October 2012 in the Crown Court at Harrow before H.H.J. Greenwood and a jury the appellants were convicted of one count of conspiracy to defraud.
2.
On 29th October 2012 the judge sentenced the appellants as follows: Singh-Mann (“Mann”) and Panchal who are aged 60 and 50 respectively were sent to prison for 7 years and they were disqualified under
s.2
Company Directors Disqualification Act 1986
for a period of 8 years. They were each ordered to pay prosecution costs in the sum of £6,500. Chahal who is aged 41 was sentenced to 3 ½ years’ imprisonment and he also was disqualified under
s.2
Company Directors Disqualification Act 1986
for a period of 8 years.
3.
Before this court they each appeal against their convictions by leave of the single judge.
4.
Mann applies for an extension of time (5 days) in which to renew his application for leave to appeal against sentence and Panchal renews his application for leave to appeal sentence.
5.
As regards Mann’s application for an extension of time to renew his application for leave to appeal against sentence, on 9 April 2013 the single judge refused leave to appeal. On 11 April 2013 the Court of Appeal Office sent the applicant notification of the refusal. On 30 April 2013 the applicant returned the relevant form (“SJ”) signed and dated 29 April 2013, and this was accompanied by a letter from his solicitors bearing the same date in which it was suggested that the
appellant did not receive the renewal form before 15
April 2013. The renewal form was seemingly
completed and signed by the applicant’s legal representative. We accept that the appellant may have received the relevant documentation late, and in consequence extend time.
The issue on the appeal
6.
The sole issue on the appeals against conviction is whether the judge properly summed up the case of each appellant. Principally, it is suggested the summing up failed to include an adequate rehearsal of the evidence and arguments relied on by the appellants in support of their respective defences, even though they each did not give or call evidence.
The Facts
Ablethird Ltd
7.
At various times the appellants were the company directors or company secretaries of a number of different companies. Each was involved with a particular company called Ablethird Ltd which, at the time of trial, was in administration. Ablethird was a property investment company, based in Watford, which was incorporated in March 1988. It described its business activities as the development and selling of real estate. The company group had a number of subsidiaries which were primarily involved in adult gaming centres trading under the names of Agora Gaming and Leisure World Ltd. To use the expression of Mr Hines on behalf of Chahal “[i]n late 2007 Ablethird embarked on an ambitious, ill-timed and ill-fated scheme of expansion”. As a result a considerable amount of money was raised by way of loans that were fraudulently obtained.
8.
Mann and his son Harjinder were the only directors and shareholders of Ablethird. Mann’s daughter
was the company secretary. Although Panchal was never formally a director of Ablethird, he was
described as ‘Finance Director’ on his business card as well as on a company
organogram seized by the police when they searched the company offices. Chahal is Mann’s nephew and worked as the office manager.
9.
In the spring of 2007 Ablethird took over a company called Deith Gaming Ltd. The latter company’s specialisation and core business was bookmaking. It was hoped that the company would complement Ablethird in the amusement arcade business. Matthew Deith, the Managing Director and owner of Deith Gaming Ltd, had experience in operating betting shops. He worked for Ablethird from the spring of 2007 until the demise of the company.
10.
Deith gave evidence for the prosecution. He reported to Mann, whom he described as being very “hands-on” in that he visited the sites and came into the office frequently. Mann was involved in any dealings with estate agents. Deith said that Panchal worked closely with Mann as regards the company’s finances and properties. Chahal was the head of accounts and dealt with payments by the company and the company’s leases. Any loan applications were all dealt with by Chahal. The three appellants, according to Deith, formed the company management team. Deith testified that his primary involvement was with the gaming licences. The appellants had an existing relationship with the banks before he joined the company, and they continued to deal with them after Deith’s arrival. However, it is to be noted in August 2012 (before the trial in September) the Crown disclosed a considerable amount of unused material containing email traffic that arguably evidenced that Deith had been central to the management of the company’s property and financial affairs (contrary to his assertions). He was cross-examined extensively before the jury on this material.
11.
It was alleged that Deith had facilitated the introductions between the banks and Ablethird in relation to some of the transactions set out in detail below. He accepted that he was described on his Ablethird business card as a director but he said that he was a divisional director in title only, to assist in his dealings with local authorities when attempting to obtain gambling licences. He did not agree that others absorbed some of the work that had once been undertaken by Mann, and he said that, although there was a funding manager, Panchal and Mann were still involved with the company’s finances, and in particular Panchal was very active within the company in this regard. Deith said that Panchal and Chahal dealt with the funding side of the business.
12.
Deith agreed that, in accordance with his statement to the police, Mann was out of the office for most of the day and he saw him only on an occasional basis. However, Deith said that Mann was fully aware throughout the relevant period of all matters relating to Boylesports. Deith’s evidence was that Mann decided which properties he wished to purchase and Deith assisted by collating the relevant information.
13.
Robert Gillard, a building surveyor for Ablethird between 2006 and 2009, gave evidence that he presumed Mann was the overall boss, although he and Panchal worked together. Chahal was always in the office and acted as the intermediary between the senior management and everyone else. Gillard said that Deith came to work for the company as a manager but he was told what to do by other members of the management team. Mann and Panchal were out of the office most of the time and therefore about ninety per cent of the information Gillard received was from Chahal. Gillard’s role was to secure planning consent, an issue of predominant interest to the appellants, and thereafter he instructed the builders.
14.
In 2007 Alexander Anderson, a financial consultant, met with Mann and Panchal to discuss raising money for Ablethird. Panchal was Anderson’s main point of contact and did most of the talking at the meetings. Deith had no recollection of being involved in restructuring the finances at Ablethird.
15.
Ablethird applied for loans on the basis that the company, acting as a landlord, had entered into tenancy agreements with a number of named tenants. These were false representations because the tenancy agreements did not exist. The reason for these false statements was that the value of the relevant commercial property was greater if tenanted than if untenanted. The detail of these arrangements is described in greater detail hereafter.
Boylesports Ltd
16.
Boylesports Ltd was a
bona fide
betting company based in Northern Ireland. Matthew Deith gave evidence that Deloittes introduced him to Boylesports in 2007, and he introduced Mann and Panchal to Steve McLoughlin of Boylesports. On his account, there were discussions about the two companies forming a joint venture to operate bookmakers at Ablethird properties under the Boylesports brand that lasted for several months. Deith said he was a contact for Boylesports and he dealt with them on behalf of the Ablethird. There were meetings at which Mann and Panchal were present, along with Deith. Chahal was possibly also present at one of these meetings. Deith indicated that the momentum eventually slowed, and in mid to late 2008 Boylesports pulled out. Deith informed Mann and Panchal that the deal was off. Although there was evidence that Deith played a significant role on behalf of the company in these negotiations, Deith said that as far as he was aware Boylesports had not signed any of the leases (these are considered in detail hereafter), and in any event it was his understanding that the plan was for a new joint company to be established between Boylesports and Ablethird which would take on the leases.
17.
Deith gave evidence that he was not involved in the re-financing and the management of, or obtaining redemption figures for, any of the properties. He denied that he was either involved in the relevant financial arrangements or that he was aware of money having being borrowed on the basis of false Boylesports leases. He said that the administration team, of which Chahal was the head, handled lettings at Ablethird.
18.
Deith said that latterly he concentrated on licensing and he left the company in September 2009, on the day he was arrested in connection with the investigation. Deith’s account was that he conveyed messages between the banks, on the one hand, and Mann and Panchal on the other. He said that he handed over many of the documents to Mann without reading them, given he reported to Mann and Panchal. He agreed that Chahal was not his boss but he gave evidence that Chahal nevertheless asked him to perform particular tasks.
19.
Robert Gillard gave evidence that he once heard Panchal speaking to Deith in 2008 or 2009 about Boylesports. As he recalled the conversation, he heard Panchal say to Deith that a property had been leased to Boylesports. He testified that Deith had not acquired any properties on behalf of Ablethird and that Deith had only called him regarding planning permission once or twice. Gillard indicated that he was not involved in the financial arrangements and he had not heard about the negotiations with Boylesports. It was put to Gillard that Chahal’s role had altered and he stated that Chahal had moved from an open plan office into an office “with the others”.
20.
Shane McLoughlin, the CEO of Boylesports, testified that whilst he was in negotiations with Ablethird he dealt primarily with Deith. He first met Deith and an Indian man who was clearly his boss at the Birmingham NEC in October 2007 (this, it was said, was Mann). Although Deith did most of the talking, he deferred to the other man. Deith made it clear that he needed to report to the directors before he would be in a position to enter any agreements. There were further meetings with Deith in London, when they were shown properties, and also in Dublin. Plans were drawn up and the meetings and correspondence with Deith continued until mid-December when Boylesports decided to abandon the project. Deith tried to resurrect the deal about six months later and McLoughlin met again with Deith and the same Indian representative of the company but Boylesports again decided against proceeding. In the course of these later discussions with Boylesports, Deith described himself as a director of Ablethird and he drew up a document suggesting the way ahead for the joint venture which he signed representing himself as the CEO of the Ablethird Group. However, Deith was neither a director nor CEO of Ablethird. Even under the draft plan, Boylesports would not have taken up any leases and in the event no lease agreement was finalised. McLoughlin said that the leases that he was shown purportedly involving his company were entirely bogus. He said that Deith gave the impression of desperation at the final meeting. Deith denied the allegation that was put to him that he was involved with the leases which carried the false signatures.
Yorkshire Bank
21.
At the end of 2007 an application for a loan was made to Yorkshire Bank on the basis that there was to be a tenancy agreement with Boylesports Ltd at 48 Grand Parade, London N4. On 29 November 2007 Mann and his son signed the relevant bank account mandate. On 19 June 2008 the solicitor for Ablethird, Satpaul Dard of Shoosmiths Solicitors, drafted a lease between Ablethird and Boylesports and sent it to Chahal. On 23 June 2008 Mann, on behalf of Ablethird, accepted the conditions of the loan, including a charge over 48 Grand Parade, when he signed the relevant letter that was sent by the bank. On 28 June 2008 a loan of £980,000 was granted by Yorkshire Bank to Ablethird. Mann and his son were the sole signatories on the account. The loan was provided on the promise that the Boylesports lease would be executed and forwarded to the bank on completion. Ablethird failed to provide the Boylesports lease to the Yorkshire Bank and approximately a year later Chahal emailed the bank to state that Boylesports had surrendered the lease and that a new lease had been granted to a company called Frankice Ltd.
22.
Deborah Cullinane, Dard’s secretary, explained the procedure for creating a lease from a precedent form. She had heard of Boylesports, as this company was a tenant for whom Dard had used a precedent lease. Most of her contact at Ablethird was with Chahal who would sometimes request a copy of a lease or other documentation. She said she had little contact with Mann, who saw Dard infrequently, or with Panchal, who spoke directly with Dard. She sometimes sent Chahal a copy of unexecuted leases at his request. She agreed that she had dated the bogus leases on 18 April 2008 (the date on the leases).
23.
Ashley Stewart, a trainee solicitor with Shoosmiths, said that Dard had daily contact with either Panchal or Chahal. He would also speak to Mann but far less often, and Mann was very much in the background as regards legal issues. Both she and Dard had some contact with Deith. Although not referred to by the judge in the summing up, the witness also indicated that Dard often prepared documents for Mann’s signature and he placed a post-it note on the document where his signature was required.
24.
In December 2009 Yorkshire Bank discovered that Ablethird had gone into administration and another company, Valais Ltd, had used 48 Grand Parade as security for loans it had made to Ablethird. In the event, the Yorkshire Bank’s loan was unsecured. Letters relating to Valais were subsequently found at the home address of Mann, together with a copy of the valuation of the property.
25.
Torsten Laughton, a solicitor acting for Valais Ltd, said that both Mann and Panchal (who played an equal role) were at the meeting when an offer was made for the loan that had been provided to Ablethird by Valais, which was secured against the property at 48 Grand Parade. He had also met Chahal but not at those meetings.
26.
Jan Bright, the surveyor who had provided the valuation on 48 Grand Parade for the Yorkshire Bank, said in cross-examination that she was told that the property was going to be let and she had seen all three appellants at one time or another during her dealings with Ablethird. Her copy of the valuation that she had prepared was marked for the attention of Matthew Deith at Ablethird. Michael Hodge, Bright’s supervisor, said that he took calls from Panchal asking whether they were able to do a valuation for Yorkshire Bank. He was told they intended to grant a lease to Boylesports. In the seven or eight years he had known Ablethird he had met Panchal as well as others from the company, although generally it was Panchal who telephoned. He had also spoken to Deith. However, he normally tried to speak with Panchal as he had the answers and his English was good. He did not recall speaking to Mann.
27.
The Boylesports Head of Finance confirmed that the company had never entered into a lease agreement with Ablethird. The loss to the Yorkshire Bank was the value of the loan, £980,000.
28.
There were indications within the material disclosed to the appellants that Deith had had a clear opportunity to see the fake Boylesports leases, contrary to his assertion that he had only became aware of them after the irregularity had been discovered.
Nationwide
29.
A former Senior Lending Manager for Nationwide, Grant Tough, gave evidence. Panchal came to see him on a regular basis on behalf of Ablethird whenever they secured a new property. He said he did not have a great deal of contact with Mann. From 2005 he had a certain amount of contact with Chahal in respect of some of the paperwork. Panchal informed him in late 2007 that the company was in negotiations with Boylesports regarding a joint venture which involved leases on certain properties. Panchal told him that he and Deith had met with Boylesports.
30.
In 2008 Tough left Nationwide in order to work for Ablethird. He was involved in a re-financing deal with Norwich Union. Panchal told him in June 2008 that there were leases in place with Boylesports. A finance agreement was secured with Norwich Union on this basis. A property valuation report was prepared and this was sent to all of the appellants, and possibly also to Deith. About a week after the deal was completed Tough learned from the broker that the Boylesports leases had purportedly been surrendered and new leases with Mann’s company, Agora Bet, had been put in their place. Tough said he knew nothing until this point in time about the surrender of the leases. He asked Panchal what was going on and Panchal told him not to worry as he was dealing with it.
31.
When Norwich Union threatened legal action, he was called to a meeting with Mann and Panchal at which Mann did all the talking. Mann asked Tough to explain the position and in due course he told Tough to leave the office. Tough was given no explanation about the surrender of the leases. Mann later asked him to meet with the broker to see if he could influence the bank’s decision but the meeting was not successful. In due course, Tough reported this back to Mann and Panchal.
32.
Tough said that Mann and Panchal were the individuals who made the decisions and Chahal had a limited role. Chahal told him at one point that Dard had sent him a blank lease to be completed, which had been used to insert the tenancy details.
33.
Tough shared a room with Deith but they did different work. He said Deith had his own property portfolio. He did not recall Deith talking to any banks on behalf of Ablethird and he did not sign documents. Tough gave evidence that Deith cared about the perilous financial position of the company but he felt that others were burying their heads in the sand. Mann spent a lot of time away from the office. Panchal presented himself as director of the company and took every opportunity to inform others that it was “his” company. Tough said that a “them and us” scenario developed in the office and there were often conversations in Indian that excluded many of the staff. Chahal did not take part in the negotiations but he was there to support Mann and Panchal, and he provided the relevant documentation. Tough explained that Chahal and Deith were involved in the day-to-day management and Chahal was in charge of the property portfolio. The latter was not a decision maker. In Tough’s view more experienced personnel were needed: for instance, Chahal was not someone he would want to introduce to a lender when looking to borrow £10 million. He said that Deith hardly spoke about Boylesports.
Abbey National Building Society/Santander
34.
In early 2008 Ablethird approached the Abbey National Building Society as regards six properties with a view to refinancing existing borrowing and in order to raise working capital. Mann signed the relevant application, along with the mortgage acceptance form on 12 February 2008. The valuations for two of the properties, namely 122 High Street, Cheltenham and 92-94 Borough High Street, London, were provided on the basis that Boylesports was to be the tenant of the former property and MDM Leisure the tenant of the latter. Previously in November 2007 Chahal had sent an email to Panchal and to Andrew Lockhart, the company’s sub-contracted chartered surveyor, stating that MDM was a tenant of 92-92 Borough High Street. In the same month Lockhart provided Chahal with a valuation of 122 High Street based on rental income from Boylesports. Chahal then sent a copy of the ‘Boylesports lease’ to Dard, Ablethird’s solicitor.
35.
Dard represented to Abbey National’s solicitor, Ray Oshry, that both properties were subject to leases and supposed copies of these documents were sent to the bank. These were false and senior officials at Boylesports and MDM Leisure in due course indicated that the signatures on the documents were either those of non-existent employees or were the forged signatures of real employees. Dard sent a copy of the MDM lease to all three appellants.
36.
In March 2008 a further valuation of the Cheltenham property was prepared on the basis that the Boylesports lease had been surrendered and that the property was now the subject of a lease in favour of Costa Coffee. In an email dated 12 March 2008, Lockhart stated that Panchal had told him that the property had been leased to Boylesports but was to be surrendered in favour of Costa Coffee. On the same day Chahal wrote to Oshry informing him that the Costa lease would be completed later that week. A different solicitor acting for Ablethird, Mr. Bains, drew up a draft lease. He emailed Mann and Chahal on 14 March 2008 to inform them that the lease had been completed the same day. Although discussions had taken place between Ablethird, represented by Matthew Deith, and Costa Coffee, they never reached an agreement.
37.
Deith said in evidence that Mann had asked him to find a tenant for the Cheltenham property. He spoke to Costa Coffee a number of times but they decided against the venture and he informed Mann of this result. Panchal was also aware of the position.
38.
On 18 March 2008 the Abbey National Building Society made a loan of £10.47 million to Ablethird, relying on the representations that the two properties were subject to the leases described above. By October 2009 the bank, now called Santander, had concerns about the loan and requested meetings with Ablethird during which attempts were made to reassure the bank as to the lease on the Borough High Street property. Carol Mullins, a senior manager at Santander, Mann and Panchal attended these meetings. Once Ablethird went into administration, the loss to the bank was about £3,636,000. The receiver appointed by Santander, Mr. Tobin, met with Mann and Panchal in March 2010.
39.
Miles Drew, the Abbey National / Santander Manager who acted during the negotiations for the loan said that Panchal was his main point of contact. He had a good deal of telephone communication with him and he met him both before and after the loan. He also met Mann once the loan was in place. He received information from Panchal as regards the possibility of granting a lease to Pret-a-Manger at the Cheltenham property (as set out above, the intended lessee was later to change to Costa Coffee). He said it was almost certainly Panchal to whom he spoke regarding MDM and 92 Borough High Street. Panchal spoke perfect English and was very familiar with the language of finance. He also met with Mann who clearly understood what was happening.
40.
Ray Oshry, the solicitor who acted for Abbey National, received several phone calls from Panchal who was trying to progress the transaction and he also had a conference call with him and Drew. The solicitor, Dard, told him that Costa Coffee had replaced Boylesports as the tenant.
41.
Andrew Lockhart said that either Mann or Panchal had informed him of the connection between Ablethird and Boylesports and a possible tenancy deal. He met them both on a number of occasions and there was more than one telephone conversation regarding Borough High Street. Chahal advised him by email of the supposed MDM lease. Chahal, therefore, provided him with information and was the contact point. He discussed the Cheltenham property with Panchal who told him that Costa Coffee had delayed taking the lease.
42.
He spoke to Deith on occasions but did not keep him informed to the same extent as the appellants. He received information from Deith but the three appellants were his main points of contact. He said that instructions came from Panchal and Mann, whilst Chahal provided the detail of any information.
43.
Mr Tobin, the chartered surveyor who acted as receiver for Santander, was involved with the Borough High Street property. There was a meeting at Tobin’s office, attended by Panchal and Mann, to discuss proposals for repaying Santander. He believed, but was not entirely sure, that it was Panchal who did the talking. It was said that they had prospective tenants once the building works were completed; Panchal intended to make up the shortfall in the payments in the meantime. It was said that MDM would have a rent free period whilst the building works were completed. Tobin informed Panchal that there was a problem because inaccurate information had been given regarding the suggested Costa lease on the Cheltenham property. Panchal insisted that the MDM lease on the Borough property was genuine and that the tenant was not telling the truth.
44.
Carol Mullins’ evidence was that at one of the meetings with Panchal in October 2009, the latter said there was a lease with MDM for the Borough property. Panchal indicated they were not paying rent but were instead paying for the development work and rent would commence once this was complete. She subsequently met both Panchal and Mann but the former did the talking. She never received a copy of the MDM lease.
Norwich Union/Close Brothers Bank
45.
In May 2008 Ablethird made an application for a new loan to Norwich Union in order to refinance an existing loan with Close Brothers bank. Mann and Panchal met with a Frank Pennall of Close Brothers regarding this arrangement and the relevant email correspondence was with Chahal.
46.
Pennall
gave evidence about his involvement in arranging a re-financing deal with Ablethird. He dealt with Mann and Panchal when any decisions were taken, but progress in the arrangements was dependent on Mann. Chahal was effectively the office manager, with whom he spoke on the telephone from time to time. He had been informed by Mann and Panchal of the negotiations with Boylesports as to a joint venture and proposed leases. In cross-examination he said that given the passage of time he could not be sure who provided him with the details of the Boylesports deal. He understood that the link to Boylesports was
via
Deith who played an important role, in his view, as an employee of Ablethird. It was his understanding that there had been an agreement in place with Boylesports and the premises were being fitted out and were close to trading. Deith said he had attended a meeting with the Close Brothers Bank at Mann’s request but he had not taken the lead at that meeting.
47.
Pennall understood that Grant Tough had been brought in to liaise with the bankers alongside Panchal. In his view, Tough and Deith had not replaced Panchal. Panchal was a director in all but title and he mainly dealt with Close Brothers in respect of financial matters, although Mann would also become involved.
48.
A loan for £9,325,000 was eventually secured against twelve properties of which eight were allegedly subject to tenancy agreements. Tough concluded this arrangement and passed on information to the valuer that the property at 122 /126 Queensway, Bletchley, was subject to a tenancy agreement with the British Heart Foundation (“BHF”) and that a further seven properties across the south of England were subject to tenancy agreements with Boylesports Ltd.
49.
The offer of a loan was made on the basis that all the suggested leases were genuine, and the relevant ‘acceptance of offer’ letter was signed by Mann. As set out above, although Boylesports had been in negotiations with Ablethird, nothing emerged from them and the signatures on the forged leases were from non-existent directors. In respect of the Bletchley property, BHF had once held a lease on the property, but this had expired. The lease used for the Norwich Union loan was false, in that the names of former employees of BHF were used, namely those on the earlier lease agreement. £9,325,000 was paid over by Norwich Union to Ablethird on 13 November 2008.
50.
Dard acted for Ablethird on the Norwich Union deal. He was provided with the false leases although these were never passed to Norwich Union. Shoosmiths solicitors sent a copy of the ‘Boylesports leases’ relating to properties in Rushden and Chatham to Chahal. Dard kept all the appellants informed as to the progress of these arrangements. Dard was informed that Boylesports had surrendered the lease, and around 17 November 2008 he was instructed to create new leases on the seven properties in favour of Agorabet Ltd. Shoosmiths corresponded by email with Chahal on this issue.
51.
Norwich Union was concerned when it was informed about the suggested surrender. A number of meetings were arranged during which Ablethird sought to reassure Norwich Union as to the validity of the leases. A meeting on 4 December 2008 was attended by Panchal on behalf of Ablethird and Ms Miller and Mr Paul Collier of Norwich Union. Collier said that Panchal informed him about the purported surrender of the leases by Boylesports. He understood that Panchal was the group finance director and he offered to restore the Boylesports leases. He was told that Deith and Tough looked after the day-to-day property side of the company, and Panchal indicated that other banks were not concerned about tenants changing without prior notification to the lender.
52.
Antonia Miller of Norwich Union in cross-examination confirmed, in accordance with her contemporaneous note, that Panchal had said to her that the Boylesports lease could be put back in place. She had a very clear recollection of this being said, as it was an unusual suggestion.
53.
All three appellants attended a subsequent meeting on 13 January 2009 with Sally Williamson, a solicitor from Norwich Union. Panchal was the main speaker and it was clear from his demeanour that he was in charge. Chahal came in at one point when they spoke about the rent. Panchal gave all the information about the occupancy of the properties. At one point he had implied that the surrender of the lease was the result of a commercial decision by Ablethird but later he said that Boylesports were no longer interested.
54.
The loss to Norwich Union (now Aviva) as a result of the loan agreement was in the region of £3 million. Once Ablethird went into administration, the administrators found various documents at the company offices which included further false leases, although there was no evidence that these had ever actually been used to obtain finance.
Other prosecution evidence
55.
It was suggested the relevant documents on the Ablethird computers were available to the entire company
via
a server. Certain important documents were discovered at Mann and Panchal’s addresses and others were found on Chahal’s desk.
56.
In interview
Mann stated that he was involved in the day to day running of the company’s shops. On the issue of the process by which decisions were made, he said that there were three or four people within the company who had different responsibilities. Thereafter, he made no comment to the questions put to him.
57.
Panchal and Chahal both did not answer any questions during their interviews.
The Respective Cases
The Prosecution Case
58.
The prosecution case, therefore, was that each appellant was a party to a dishonest agreement to seek refinancing for Ablethird by falsely representing to the various lenders that the premises offered as security were subject to leases with particular named tenants. Mann was said to be the company owner and Managing Director. He was a signatory to significant documents and he was involved in the decisions made by the company. Thus, it was alleged he was a central figure in the crime. Panchal, it was said, orchestrated the fraudulent arrangements, he played a major role in dealing with important figures and he held himself out as a company director. Chahal was the office manager and it was alleged he dealt with all the relevant documentation. Therefore, it was contended he was fully aware of what was going on during the currency of the fraud.
59.
It was the prosecution case that there was a close connection between the appellants, including on the issue of the tenancies, and that it was inconceivable that they would have been unaware of which companies held the leases at the various properties. The three appellants were said to be the inner circle of the Ablethird management.
60.
The issues, as identified by the prosecution, were whether the appellant under consideration knew that the applications were false and whether he played a part in making the relevant applications.
The Defence Cases
61.
None of the appellants
gave evidence and they did not call any evidence. The defence case of the appellants, as summed up by the judge, was that on the evidence the jury could not be sure of their guilt. In describing the defences of the appellants in the context of the closing speeches, the judge simply said:
“What they have submitted to you in effect, is that on the evidence before you, you cannot be sure of the guilt of their respective clients. That is the effect of their submissions, because the defendants have put the prosecution to proof of their case.”
62.
The appellants relied on evidence called by the prosecution, including answers given in cross-examination, to suggest they did not have knowledge of, or involvement in, this fraudulent activity. We have considered the main elements of the arguments that were presented for each accused below.
The Conviction Appeals
Mann’s Appeal
63.
In support of the appeal against conviction on the part of Mann, it is contended that the judge failed to sum up the case to the jury fairly or adequately. Indeed, it is argued that the summing up was a model of what a summing up ought not to be, in that the judge stressed the strengths of the prosecution case and failed to remind the jury of the outline of the defence case or the particular evidence relied on by the defendants. Additionally, it is said that the judge made certain strong comments against Mann. It is suggested that the summing up lacked any coherent structure in that the judge failed to summarise the evidence in relation to the various separate issues in the case. He failed properly to organise his summary of the evidence in relation to the issues and he delivered the summing up at a speed that made it difficult to follow.
64.
Mr Arlidge Q.C. for Mann expressed concern at the manner in which the judge opened his summing-up in respect of the appellant and the emphasis he placed upon his role in the company. Mr Arlidge contended that the judge made remarks which tended to indicate that because the appellant was behind the company he must be guilty. Additionally, he submitted during the summing up that the judge should indicate to the jury that the mere fact that the appellant owned the company and had signed particular documents did not necessarily mean he was guilty, and that certain other pieces of evidence should be brought to the attention of the jury in this regard. The judge replied that he was merely ensuring that the jury understood the prosecution case. During this exchange prosecuting counsel suggested to the judge “
No doubt you are going to deal with the defence case
”, to which the Judge replied, “
Well, I am going to deal with the evidence
”.
65.
Furthermore, later in the summing up the judge declined to vary the content of the summing up following counsel’s submissions. A request was made on behalf of Mann for the judge to include in his summing-up certain particular pieces of evidence relied upon by Mann, namely the Sittingbourne evidence, along with evidence that Dard placed post-it notes on documents where Mann’s signature was required:
Mr Arlidge:
“There have been a number of details of evidence, which I relied on in relation to Mr Mann, which your Honour has not reminded the jury of and I just pick out two. One is the evidence about the property at Sittingbourne, now relied upon to make the suggestion that Mr Deith was making a similar excuse about surrender of leases in that regard as was said to have happened by the Crown in relation to some of the Boylesports leases. The other one is that Ashley Stewart mentioned that Mr Dard, when he left the office with documents, very often had a post-it where a signature was required.”
66.
The Judge declined to expand his summing-up to cover these matters and he indicated that he had been deliberately selective.
67.
Turning to the detail as regards the property in Sittingbourne, the evidence was that Deith owned a company called Deith Securities, about which he was questioned. He tended to arrive early in the office to deal with its affairs. Deith Securities, with the aid of Bank of Ireland, purchased a property in Sittingbourne, purportedly leased to Ablethird. Deith informed the bank that the lessee intended to surrender the lease shortly after the loan had been completed. When the bank queried this (on 23 March 2008) he gave an explanation which was untrue. He sent an email to the bank that Ablethird was expanding its business in the southeast and needed new office accommodation. He suggested that if they obtained planning permission for residential accommodation on the upper floors of the building they would surrender that part of the lease and secure separate office accommodation. If they failed to secure planning permission, the upper floors would remain for office use. This was false. Ablethird already had a gaming centre in Sittingbourne and large office premises in Watford. Thus, it is said that Deith was using a deception similar to that practised in the present fraud and Mr Arlidge asked the jury to consider whether it might have been Deith who was behind the fraud. As indicated, the learned judge was invited to remind the jury of this, but refused to do so, saying he had been deliberately selective.
68.
Addressing the way in which documents came to be signed, it was Mann's case that he signed various documents which were placed before him for signature without reading them. Although Mann did not give evidence, Mr Arlidge contends there were particular pieces of evidence that supported this suggested scenario. For instance, he spent most of the day out of the office, often coming in only during the evening. The offer letters were lengthy and technical in nature, and contained details of properties that were subject to genuine leases as well as the properties for which false leases had been created. The solicitor, Dard, who dealt with these documents was not called to give evidence, but his secretary, Deborah Cullinane, said that she had very little contact with Mann, who came to Dard's office infrequently. Dard’s trainee, Ashley Stewart, testified that Mann was very much in the background when it came to giving legal instructions and that Dard often prepared documents for signature with coloured pieces of paper (“post-its”) indicating the places where his signature was required. As we have already rehearsed, the judge did not accede to the defence request to include this material as part of the summing up. Mr Arlidge accepts that the jury were entitled to rely on the appellant's signatures, but it is submitted the judge ought to have drawn together and summarised all these points so that the jury could at least consider the possibility that the appellant signed the documents without digesting the details.
69.
Additionally it is observed that Deith was asked by defence counsel if he was party to leases which bore false signatures. He denied he was. The judge remarked to the jury “
I make the obvious comment that is the only evidence is on that point. An advocate making that suggestion cannot give evidence, he was not there. The only evidence that you have is from Mr Deith on this point
.” Mr Arlidge contends that this effectively meant that the jury had to accept the witness's answer, when in reality there was other relevant evidence which bore on the point that undermined Deith’s response. The defence case was that Deith had lied about his part in these transactions. He had misrepresented his role in the company, and we have described above how Deith called himself as a director of Ablethird and that he had drawn up future plans for the proposed joint venture in which he described himself as CEO of the Ablethird Group (Deith was neither a director nor CEO of Ablethird). It was argued that there was evidence before the jury to support the suggestion that he was principally behind the joint venture and that he dealt with funding. It is contended that when the judge dealt with the evidence of Deith he failed to provide “any flavour of the defence attack on him”.
70.
Finally, in this context it is noted that two solicitors, Dard and Raina Bains, who were involved in these arrangements, were not called to give evidence. It was alleged on behalf of Mann that Raina Bains, who acted for Ablethird in the transaction with Abbey National regarding 122 High Street Cheltenham, acted dishonestly when emailing Chahal that the lease by Costa Coffee had been completed, because this was untrue. The Crown originally intended to call Dard from Shoosmiths and opened his evidence. However, after their arrest the three defendants met Dard and in the course of their conversation (which was recorded) Dard stated he had destroyed some of the forged leases to prevent them coming into the hands of the police. During the prosecution case, a copy of the tape was provided to the Crown and prosecuting counsel decided not to call Dard. The jury were not told about the tape or its contents.
71.
It is argued that there was a reasonable inference that both solicitors were involved in a dishonest conspiracy. There was, however, little evidence of contact between Mann and either solicitor about the leases. It was submitted, therefore, that it did not follow that Mann had been involved in their suggested criminality. The judge did not deal with this aspect of the case during his summary of the evidence.
72.
Finally, there are a number of miscellaneous discrete complaints about the summing up. Early on, the judge commented on Mr Arlidge’s suggestion that the case was a “whodunit”. He went on to suggest that the jury should consider who was behind Ablethird when the fraud was committed and he indicated that they might want to follow the money: who, in reality, received it. The judge took the jury through the prosecution's events schedule. Shortly afterwards he said in relation to Yorkshire Bank that the prosecution case was that the appellant was implicated because he had signed the bank mandate and the acceptance of the offer: ‘
if you want to know who is behind Ablethird look at who signed
.' Later he pointed out that the appellant had
signed the application and the mortgage offer. Thereafter, he summarised the prosecution’s case that
the appellant signed the documents on behalf of Ablethird and in that sense was the man behind
Ablethird. He was managing director, taking part in decisions, and was a central figure in the fraud. It is argued that the judge, having invited the jury to consider who was behind the fraud, concluded the summing up without reminding the jury of those parts of the evidence upon which the defence relied in this regard and without summarising how Mann’s case was put.
73.
In conclusion, it is submitted that a critical ingredient of a fair trial is the judge’s obligation to summarise the evidence fairly and to indicate, at least in general terms, how the case of each defendant has been argued. It is submitted that however strong the Crown case appeared to the judge, the evidence and the issues must be summarised fairly and comprehensibly for the jury’s benefit.
Panchal’s appeal
74.
In a nutshell, Panchal’s case was that, although he was not a director of the company, he was close to Mann. He had been the "financial brain" of the company but had given way to the newcomer, Matthew Deith, who joined the organisation as a result of the buy-out of his allied business. Panchal said that he did not get on well with Deith. Panchal’s case was that Deith assumed his role, up until the point when Panchal tried to stave off the collapse of Ablethird by meeting with the lenders. It is acknowledged that the lies Panchal told at this late stage constituted important evidence against him, along with his apparent knowledge of the leases. He argued, however, that the evidence concerning Deith graphically revealed the possibility that others had been responsible for the fraud. Panchal’s case, in essence, was that he only became aware of what had been happening
ex post facto
and he told lies solely to try to prevent the company from collapse.
75.
Panchal placed 105 documentary exhibits from the unused material before the jury. Mr Etherington Q.C., on behalf of this appellant, accepts that the judge’s rehearsal of the evidence relied on to support Panchal’s case was adequate, but he submits he failed properly to explain the nature of the appellant’s case, and the summing up, in consequence, lacked proper balance. It is suggested that the failure to deal with the defence case operated as a significant adverse comment to the jury, in that it tended to position the arguments of the prosecution above those of the defence.
Chahal’s appeal
76.
For Chahal it is argued the judge in the summing-up failed to remind the jury adequately of the appellant’s defence and the evidence relevant to it. He neglected to remind the jury of the main submissions made by the defence in respect of the evidence called by the prosecution. By contrast, he reminded the jury of the prosecution’s contentions and, as such, it is argued the summing-up lacked balance and was unfair.
77.
Mr Hines, on behalf of Chahal, highlights that there were numerous arguments that he deployed, based on the evidence, which received no or scant mention by the judge during the summing up. Centrally, during the trial it had been submitted on Chahal’s behalf that there was no evidence that he knew a) that the Boylesports leases were bogus or b) that the Boylesports deal had failed. It was suggested there was no direct evidence to this effect and that the prosecution case was based solely on the suggested inference that he must have been aware of what had been happening. The defence case was that as office manager he would not necessarily have been aware of all the relevant facts and although he was included as one of the recipients of a great many of the emails which contained the relevant documents such as the valuations, there was no evidence that he was a party to the conspiracy to defraud. It is noted that Chahal continued to include references to Boylesports on the tenancy schedules which were circulated widely within the company without challenge or comment.
78.
It is said that Chahal had no direct contact with any representative of Boylesports and he had no involvement in, or insight into, the progress of the proposed new venture and that he, along with other members of staff, was unaware that the Boylesports deal had been abandoned.
79.
Put generally, it was the applicant’s case that he was not a directing mind or decision maker within Ablethird. It was said that he played no part in applying for, or arranging, funding. Further, it was contended there was no evidence that he attended any meetings where funding was discussed. Instead, it was that argued that he was only involved with administrative issues.
80.
It is highlighted that one of the recurring themes that emerged in the evidence was that there had been repeated criticism of Chahal's capabilities as an office manager. There had been complaints of his 'lack of organisation' and, as a result, others were recruited to address the problem. There was confirmation from several sources that Chahal’s role changed. It is said the judge failed to refer to this aspect of the case in the summing up. The evidence of Tough was that he and Deith, who together handled the largest application for £10m from Norwich Union/Aviva, tried to keep Chahal away from the deal.
81.
A contention of this appellant at trial was that there was an absence of evidence that he had ever been in possession of any of the original false leases. To the extent that he had dealings with these documents, they were incomplete and in draft, and they did not bear the forged signatures. It was argued this is was consistent with the possibility that the Boylesports joint venture was still under contemplation. Additionally, there was evidence that the signed bogus leases were sent to Chahal by the company solicitors.
82.
The prosecution evidence was that during 2008 the relevant premises were being fitted out and licensed by Deith as amusement arcades rather than betting shops (as contemplated in the bogus Boylesports leases). It was suggested by the prosecution that this was something about which Chahal would have been aware and thus he would have known that the Boylesports leases were bogus. However, the defence highlighted that because of his work, the applicant was office bound; further, there was no evidence that he ever visited any of the premises or that he was aware of what was happening 'on the ground'.
83.
One of the main points made by the prosecution was that the appellant would know that Boylesports was not in occupation at the various premises because collection of rent was one of his responsibilities and none had been received from Boylesports. On his behalf it was pointed out that the leases contained rent-free periods to relieve the tenant from the obligation to pay rent during the period when the premises were being equipped (this applied to all the premises). Furthermore there was evidence from a professional insolvency practitioner, Mr Tobin, that rent-free periods were very common in commercial leases during the indictment period. It is the subject of complaint that the significance of these rent-free periods was not mentioned in the summing up.
Discussion
The Law
84.
The obligation on the judge as regards summarising the evidence and the arguments is clear on the authorities. The judge’s responsibility in this regard was spelt out in
R v Lawrence
[1982] AC 510
, at 519 when Lord Hailsham observed:
“A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge's note book. A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.”
85.
Clearly in a case in which there are no facts that are said to amount to a defence, there is little for the judge to do as regards summarising the arguments or evidence relied on by the defence, save to remind the jury that the accused maintains that the prosecution’s case is insufficiently strong to justify a conviction.
R v Briley
[1991] Crim LR 444 was such a case. A building society employee was charged with stealing £124,000 from the branch where she worked. She did not challenge that her signature was on the records associated with the issue of a passbook used for one of the offences. She did not give or call evidence. The judge referred to the fact that it was at least theoretically possible for another member of staff falsely to have attributed the issue of a passbook to the appellant, that she could have been duped by someone presenting a false passbook and that it was submitted another member of staff may have committed the offence.
86.
Against that background this court observed:
“The defence here […] came like this: "I am not guilty. Whatever the compelling concatenation of circumstances upon which the Crown relies as pointing to my guilt, they are not sufficiently strong to compel you, the jury, to convict me". There was no factual account said to afford a defence here. There were submissions that she would not have been so foolish if she had been so involved to leave her position so obviously exposed and susceptible to detection. It was also submitted to the jury, as I have said, that others could have committed the offence which equal facility. But that was the totality of the matter that was presented for the jury's consideration.
Properly so called therefore there was, in our judgment, no defence of which the judge could or should have reminded the jury. It is often sensible for the trial judge to remind the jury of counsel's submissions but it is not mandatory for him so to do. […]”
87.
Additionally, as we have observed, in
Briley
the judge reminded the jury of the potential inferences that could be based on the prosecution evidence which tended to indicate that the defendant had been duped or that someone else may have been responsible for the crime.
88.
In
R v Hillier & Farrar
(1993) 97 Cr App R 349
the defendant in question did not give evidence and the correct approach was identified as follows:
“What the jury needed to be reminded of in his defence was relevant matter contained in his pre-trial statements and interviews with the police—copies of those documents were in their hands—and possibly such assistance, if any, as counsel had been able to extract from the Crown's witnesses in cross-examination.
[…]
We must make this clear yet again, namely that it is no part of a judge's duty to build up a defence for someone who has not chosen to give the jury the benefit of his version of material circumstances and events. The judge's obligation is limited to reminding the jury, in summary form, of what the defendant is said to have stated as to those matters at some time or another pre-trial and what assistance, if any, the Crown's witnesses have provided.”
89.
Rose LJ in
R v Soames-Waring
Court of Appeal 16 June 1998 approved the approach taken by this court in
R v Curtin
Court of Appeal 24 May 1996 when it was stated that:
“When the defendant has neither answered questions in interview nor given evidence, it will often be very difficult for the judge to say much in relation to the defence, though it will usually be appropriate in such a case for him to remind the jury of significant points made in defence counsel's speech.”
90.
On the basis of those authorities, it is clear that when a defendant has said little or nothing in interview and has elected not to give or call evidence, ordinarily the limit of the judge’s duty is simply to remind the jury of “
such assistance, if any, as
(defence)
counsel had been able to extract from the Crown's witnesses in cross-examination”
and any “
significant points made in defence counsel's speech”.
In this context, it is to be stressed that in order to present a defence to the charges the defendant is not compelled to give or to call evidence; instead, he is entitled to rely on evidence presented by the prosecution or by his co-accused when advancing arguments for the jury’s consideration as to whether the prosecution has established his guilt. The rehearsal of this material by the judge does not necessarily have to be extensive or detailed – indeed, frequently it will be sufficient merely to identify the central submissions and the evidence that underpins them – but the judge must generally ensure that the jury receives a coherent rehearsal of the main arguments that are being advanced by the accused.
91.
The timing and the form of this summary will depend on the circumstances of the case – most particularly, whether the relevant evidence needs to be gathered together in one section of the summing up or whether it is preferable to refer to it incrementally as the judge summarises the evidence in the case as a whole – but in either case the judge ought to explain the key submissions of the accused in support of his defence at a convenient juncture during the summing up.
92.
A further factor that underscores the need to provide an adequate summary of the defence is the “adverse inference” directions that are given in cases when the accused fails to mention facts when questioned or charged that he later relies on in his defence (
section 34
Criminal Justice and Public Order Act 1994
), or if he fails to give evidence at trial (
section 35
Criminal Justice and Public Order Act 1994
). Given the jury are instructed that they must investigate whether the accused could reasonably have been expected to mention the fact or facts and whether it is proper to draw an inference from his failure to do so under
section 34
, or whether it is proper to draw inferences from his failure to give evidence under
section 35
, it is critical that they make these decisions on the basis of a clear understanding of the case he is presenting. His defence, together with the arguments and evidence that support it, is potentially a relevant consideration for the purposes of these decisions, although we stress the extent of the relevance will depend on the circumstances of the particular case. At the very least, it helps place these considerations in their true context.
The Present Case
93.
Turning to the present case, the issue for each defendant was set out clearly by the prosecution in opening (and repeated in Crown counsel’s closing speech):
“The Defendants admit that the applications for the three loans were in fact made by Ablethird, and included in the applications were false tenancy agreements. Each of the defendants denies, however, that they were involved in any dishonesty in the transactions. So when you look at the evidence it may help to ask yourselves whether each Defendant knew what was happening and if he played a part. ”
94.
It is clear from the rehearsal of the evidence set out above that the material on which each appellant relied was directed principally at undermining the suggestion that they knew about, and participated in, these fraudulent transactions.
95.
We have broken down the complaints which are made about the summing up into, first, the discrete issues raised by each appellant as regards particular pieces of evidence that it is said the judge failed to summarise during the summing up. Second, we have addressed the overarching issue common to all three appellants that the summing up is vitiated by the failure on the part of the judge to remind the jury of the main elements of the submissions that were advanced by their counsel in their closing speeches, which reflected particular pieces of evidence that the jury had heard in the case.
Mann: the discrete points
“
Whodunit”
96.
As set out above, the judge made a series of comments based on the fact that Ablethird was named as the landlord on the bogus leases. The judge referred to Mr Arlidge’s submission that the case was a “whodunit” and he suggested that in addressing criminal liability, it was legitimate to ask the questions,
inter alia
, “
who was it who used Ablethird Limited as a vehicle for fraud
?”, “
who lies behind Ablethird Limited in a fraud
?” and “
who in reality receives the money
?”. These were undoubtedly legitimate questions for the judge to pose for the jury’s consideration, and were clearly and properly identified as some of the issues that the jury would wish to incorporate into their discussions. We note also, as Mr Haycroft for the prosecution has pointed out, that Mr Arlidge’s submission about the case being a “whodunit” tended to obscure the real issue in the case, in the sense that this was not an offence for which there was necessarily a sole perpetrator. Instead, the jury needed to ask as regards each defendant in turn whether he knew what was happening and whether he took part in any of the admittedly dishonest transactions. Therefore, it was legitimate to invite the jury to consider who was behind the company, because this was directly relevant to whether the defendant under consideration would have known what was happening and, depending on the answer, this may have assisted in deciding whether they were involved.
97.
The judge described the case against Mann as including the fact that he “
signed documents on behalf of Ablethird Limited and in that way was the man behind Ablethird Limited. They say he was involved in making decisions. They say he was the managing director. They say he was the sole owner of Ablethird Limited
.” As regards Panchal it was alleged that he “
orchestrated the deals
[…]
he played a major role in the dealings with important figures and he held himself out as a director of Ablethird Limited or he would tell people that he was the financial director of Ablethird Limited
.” Finally, for Chahal, the summary of the prosecution’s case, this was described by the judge as he “
was the officer manager
[…]
he dealt with all the necessary documents and therefore, they say, he was fully aware of what was going on during the period that Ablethird Limited was used for the fraud
.” It was entirely legitimate for the judge to remind the jury that this was the prosecution’s case as against each accused.
Sittingbourne
98.
There was some evidence that Deith had been involved in a fraud in relation to his own company, Deith Securities, that was similar in nature to that perpetrated allegedly by these appellants. We consider that it would have been preferable for the judge to have referred to this evidence during the summing up, together with counsel’s submissions on the issue. However, even if the jury had accepted that the “Sittingbourne” material tended to indicate that Deith had been involved in the present fraud that would not have assisted Mann because it was untenable to suggest that any of the appellants was less likely to have been involved because Deith provided assistance to this criminal enterprise. It was essentially fanciful to argue that Deith was behind the fraud, without the knowledge and involvement of those who stood to profit from the criminality. Furthermore, there was no evidence that Deith had been a party to the plan to rely on the false leases in order to secure finance. It is of note in this regard that Panchal in his Grounds of Appeal suggested “
the Applicant did not (nor could he) accuse Deith of guilty complicity
[…] [15]”. Therefore, as the judge correctly observed, there was no evidence to contradict Deith’s assertion that he had not been involved in the false leases.
99.
For similar reasons, even if the two solicitors were potentially implicated in this offending, that would not have assisted this appellant.
Mann signing documents and his absence
100.
We turn next to the argument that was advanced to the effect that Mann may not have appreciated the significance of the documents that he was signing. It was suggested that this was demonstrated,
inter alia
, by the fact that he was handed documents that needed to be signed with “post-its” indicating the page where he was expected to add his signature. The context of this particular complaint is that the judge emphasised that the prosecution’s case was that Mann was “implicated” because he had signed various key documents, such as relevant banking and mortgage documents.
101.
It is correct to observe that the judge did not refer to the evidence and the defence submission concerning the “post-it” notes, although when the judge was summarising Deith’s evidence, the jury were reminded of the suggestion that “
people would give
(Mann)
documents and ask him to sign
” them, and that he had seen Mann sign pieces of paper like company memoranda. Otherwise, there was no evidence as to what happened when this appellant signed documents. In our judgment, if the judge had reminded the jury of this slender piece of evidence, it would not have served in a substantive way to reveal whether Mann simply signed the fraudulent documents at the place indicated or whether he read them.
102.
Moreover, the judge reminded the jury as to how various witnesses reacted to the suggestion that Mann was not involved in the detail of the arrangements for the company. For instance, Deith rejected the suggestion that Mann’s role was taken over by newcomers to the company. As against this, the judge rehearsed Deith’s evidence that Mann was out of the office for the majority of the day and that Deith was unaware of what he did on a day-by-day basis. Deith confirmed that Mann was very busy, and that he could only see him briefly in the evenings. There was evidence that Mann ran markets at a number of different locations, and he was involved in a considerable business. Similarly, Lockhart said that Mann did not come into the office very often and that he visited amusement arcades and auction houses. The judge underlined Tough’s evidence that Mann spent a “lot of time” out of the office.
103.
We do not consider that these discrete points raised by Mann render the verdict in his case unsafe.
Panchal: the discrete points
104.
By way of detail, Mr Etherington Q.C. complains that the judge did not sufficiently describe certain important aspects of Panchal’s case.
Panchal was replaced by others
105.
It is argued that the judge ignored the defence submission that Panchal had given way to Deith when the latter joined the company. However, this was only ever a suggestion and it was not accepted by any witness. For instance, the judge reminded the jury that Frank Pennall’s uncontradicted evidence was that Panchal’s role had not been taken over by Tough or Deith. The summary of the evidence set out at the beginning of this judgment reveals the extent to which there was material before the jury that indicated this witness was involved in the relevant affairs of the company.
The lies Panchal told were “ex post facto”
106.
It is suggested also that the judge failed to deal with Panchal’s argument that the lies he told after the loans were arranged were not evidence that he had been involved in the fraud, but instead were merely designed to save the company. The difficulty with this submission is that it was not based on any evidence that was called, given it was something that was essentially within Panchal’s knowledge and he chose not to testify. This remained, therefore, conjecture on the part of his counsel. Additionally, there was evidence before the jury that Panchal told lies before loans were made, and Oshry (the solicitor for Abbey National) indicated that Panchal was involved in directing the application for the relevant loan.
107.
The judge reminded the jury that Mr Etherington had submitted that things said at a later stage should be addressed in the context of the time when the statements were made (the judge referred to the period after arrest), although he pointed out that the prosecution’s case was that later events may provide an understanding the significance of events that happened at earlier stages in these transactions.
108.
Save for these matters (which we consider do not render the verdict against Panchal unsafe), Mr Etherington does not criticise the summing up, save in one respect. He has candidly accepted that “
there was nothing objectionable in
(the judge’s)
review of the prosecution case nor in the comments he made during the evidence. What was unfair
[…]
was his failure to review the defence arguments at all. The judge’s view – that it was his duty simply to review the evidence in the case of the defendants – ignores the fact that the defence can make submissions to the jury upon that evidence
.”
109.
That is a serious, indeed understandable, criticism, to which we return later in this judgment.
Chahal: the discrete points
Chahal’s changing role
110.
It is suggested that the judge failed sufficiently to emphasise the absence of Chahal from many of the important meetings or events, that he was an inadequate office manager and that this role changed with time.
111.
However, as the judge went through the evidence of the various witnesses he routinely set out who attended the various meetings and which of the appellants met with the various prosecution witnesses. Although he did not add the additional fact that Chahal was often not present, the way this was presented to the jury served in a stark manner to emphasise the fact that Chahal had not been present on many of the occasions when relevant events occurred. By way of three examples, when summarising the evidence of Mr Lawton, the solicitor, who was concerned with a loan of £1.5 million to Ablethird Limited, the judge pointed out that Chahal (whom Mr Lawton had met) was not present at the meetings when the offer and the security were discussed. Similarly, Jan Bright, a chartered surveyor, who undertook a valuation on 48 Grand Parade, indicated that she saw Chahal at a property whilst she encountered the other two appellants at the offices. Grant Tough gave evidence that he dealt mainly with Panchal and only occasionally with Chahal.
112.
Moreover, the judge reminded the jury that Lockhart said that Chahal was “in the office all the time”, and that he was the intermediary between senior management and everyone else.
Chahal’s competence
113.
As regards Chahal’s competence, the judge summarised Tough's evidence as follows:
“[h]e [Chahal] is not someone I would put in front of the lender when you are looking to borrow £10m”.
Similarly, as regards the Norwich Union '
[t]he day to day property side was looked after by Deith and Tough.
' Whilst it is correct that the judge failed to remind the jury that Pennall’s notes referred to Chahal’s lack of organisation the judge was not obliged to refer to each and every piece of evidence given during the case.
Rent-free periods
114.
The judge set out Mr Tobin's evidence that there were rent-free periods. As Mr Haycroft has submitted, it was the agreed evidence that Chahal dealt with the tenant schedules and rentals. As such he would be in possession of all relevant documentation regarding who was and was not paying rent, rates and utilities. Similarly, he would have known the reason why rent was not being paid (
e.g.
rent free periods for refurbishment) and who was paying for any fitting out. Notwithstanding this involvement on his part, there were no documents put before the jury that identified or justified any rent-free periods.
The tenancy schedules
115.
There was reference during the summing up to the existence and use of the tenancy schedules, both of which were pieces of evidence relied on by Mr Hines on behalf of Chahal.
Chahal’s involvement in the negotiations
116.
As Mr Haycroft has submitted, although the Crown expressly submitted to the jury in closing that there was no
evidence that Chahal knew about the nature or extent of the Boylesports negotiations, this was, in reality, a red herring as the issue was whether he knew that the false leases used to
obtain finance were in fact false. The Crown's case was that virtually every relevant
document regarding the procurement and execution of the loans went through Chahal (including copies of the false leases). As a result,
whether he saw the original completed leases and other related points were not live issues in the case. Similarly, it was never
suggested Chahal dealt with lenders for the purposes of obtaining funding; instead it was alleged he was the office manager.
117.
Although the judge could have referred more extensively to certain parts of the evidence on which Chahal relied, we do not consider that these discrete complaints demonstrate that the verdict against Chahal is unsafe.
The Three Appellants: the failure by the judge to summarise the defence submissions
118.
As we have just rehearsed, the judge referred sufficiently to the evidence relied on by the appellants as he summarised the evidence for the jury. To that extent he had fulfilled this part of his obligation, although we note that the approach he adopted to summing up the facts was to take the jury, firstly, to the admissions, secondly to the events schedule and finally he simply went through his notebook, reminding the jury of the evidence of each witness in the order they were called or read. If they gave evidence live, he rehearsed their evidence in chief followed by any cross-examination. The authors of the Crown Court Bench Book observe that “
[a]lmost never will it be helpful or appropriate simply to summarise each witness in turn”
[page 4], and this court in
R v Amado-Taylor
[2000] 2 Cr App R p. 189 at 191 indicated that
“[e]vidence is not to be given sequentially – it comes out witness by witness and needs to be marshalled and arranged issue by issue. This is the judge’s responsibility – it involves work out of court […]
”. We regret to observe that the judge made no attempt to organise the facts for the jury’s benefit on an issue-by-issue basis, save to the extent that serendipitously the order in which the admissions and events schedule had been compiled, or the sequence in which the witnesses were presented by the prosecution, meant that different areas of the case were grouped together. Kennedy LJ in
R v Green
criticised this witness-by-witness ordering of the evidence in the summing up and set out the approach that ought to be taken in cases such as the present:
“27. Furthermore in presenting the evidence it is often helpful […] to present it […] in chapters, arranged in chronological order, each chapter drawing together all of the evidence in relation to a particular aspect of the history before moving on. ”
119.
We readily accept that this approach requires a not-inconsiderable amount of preparatory work on the part of the judge, but in our view this case called for more than a “notebook” summing up, and the issues – together with the evidence that related to them – should have been marshalled under discrete headings that reflected,
inter alia
, the loans/refinancing arrangements and the roles played by the three appellants and the other leading players.
120.
Turning, against that background, to the joint complaint by all three appellants, namely that the judge failed to provide the jury with a summary of their individual cases, as we have already observed he did not at any juncture set out the submissions of counsel in their closing speeches and the principal evidence on which they relied in support of those submissions, thereby providing the jury with a coherent overview of their defences. In our view, the extent and detail of the material in this case required the judge to draw together the main areas or pieces of evidence relied on by each accused as part of a focussed summary of the central arguments advanced by counsel of their behalf. This could have been achieved by a relatively short description of the main contentions they each developed, and the core material to which they referred. We wish to stress that this would not have required a lengthy explanation; indeed, no more than a dozen or so sentences for each appellant would probably have sufficed to reflect the essence of the cases they were presenting.
121.
In light of the failure by the judge to undertake this exercise, the critical question on this appeal is whether in the result these verdicts are unsafe. The central issue in this trial was extremely straightforward, in that the case turned on whether the appellants knew about the fraudulent steps that were being taken to secure the loans and whether they agreed to participate in this dishonest undertaking. As the judge explained:
“What the prosecution must prove in this case therefore is firstly that there was an agreement to defraud, in other words the existence of such an agreement. Secondly, that the defendant whose case you are considering joined that agreement and, when the defendant joined that agreement he intended that the agreement should be carried out. ”
122.
All of the arguments and the evidence in the case were essentially directed at that issue. The jury could not have failed to understand that the cross-examination by defence counsel and the evidence they highlighted were intended to demonstrate that the appellants were unaware of the fraud and that they did not agree to participate in it.
After some anxious reflection, we are confident that although the defence submissions in this regard were not summarised by the judge, the jury would have clearly appreciated the arguments and the issues that they needed to bear in mind, along with their significance, when deciding if the prosecution had proved its case. In consequence, we are not persuaded that the verdicts are vitiated because of this notable deficiency in the summing up. This was an extremely strong case against each appellant, and given the straightforward nature of the underlying issue, we are confident that these verdicts are safe. The appeals against conviction are dismissed.
Sentence
123.
In passing sentence, the judge observed that the total loss to the three banks was in the region of £8.8 million, a very substantial figure. The judge emphasised that Mann was the managing director and sole owner of the relevant company, he signed the critical documents and he was involved in making decisions. Therefore the judge decided he was a central figure in the fraud perpetrated in the company’s name. Panchal orchestrated the deals; he played a major role in his dealings with the key figures in this undertaking; and he held himself out as a director, describing himself as the Financial Director.
124.
The judge identified a starting point of seven years, given this was a banking fraud involving a substantial amount of money. The relevant negotiations were fraudulent from the outset and the offending extended over a significant period of time.
125.
The court bore in mind that the fraud was not committed by professionals or in breach of trust, and he accepted there was an intention to repay or honour the obligations. The judge indicated the sentences were the shortest that matched the seriousness of the offending and he took into account the relevant mitigating factors for each appellant.
126.
Panchal had one previous conviction dating from 1992 for six offences of Procuring Execution of a Valuable Security by Deception for which he received a total sentence of 2 years imprisonment.
127.
For Mann it is submitted the sentence was wrong in principle as it is suggested the judge made no reduction either for the appellant’s previous good character (a fact which distinguished him from Panchal) or for the effect of the complete loss of his business.
128.
For Panchal it is argued the judge wrongly placed the offence in the first category of the Sentencing Guideline for Fraud. It is suggested a lesser category would have been appropriate, to reflect the appellant’s long employment record with the company and it is said he gave insufficient weight to the fact that it was proposed to substitute the fraudulent leases for genuine ones and to repay the loan. It is submitted the judge paid inadequate attention to the fact that the fraudulent leases only applied to certain properties and that the properties in themselves comprised a significant security. It is suggested that the company failed principally for reasons unconnected with the fraud and it is said the judge should have reflected to a greater extent the absence of any personal gain by the appellant. Overall it is argued that he was disproportionately influenced by the size of the sums lost. Finally, it is contended that the sentence should be reduced because of the uncertainty faced by the appellant whilst his appeal against sentence has been resolved (he was convicted on 10 October 2012).
129.
As regards the period of disqualification, on behalf of Panchal it is said the judge erred in imposing a disqualification order of 8 years because he accorded no weight to the fact that the appellant was not a director at any material time; it is contended he relied too heavily on the fact that the appellant falsely represented after the fraud that he was a company director; and he failed to assess fairly the evidence relating to extent to which the appellant acted as director. Finally it is argued he erred in considering that the fact of the conviction itself justified the disqualification (or length thereof) irrespective of whether the appellant had been a director of Ablethird.
130.
In our judgment, the judge was wholly entitled to identify the top bracket within the banking and insurance fraud guideline, given this offence was fraudulent from the outset (
viz.
from when the first approach was made for funding), it was carried out over a significant period of time and it involved multiple frauds. Given the scale of the criminality and the amount of money lost, the judge correctly sentenced at the top of the bracket. The judge bore in mind the good character of Mann and the mitigation available to both accused, but this was serious offending which merited a sentence of this length. This offending inevitably attracted a lengthy sentence and we do not consider that there is any reason for reducing the term imposed because it has taken 18 months to resolve the appeals against conviction and sentence.
131.
A period of disqualification of 8 years comes within the bracket of 6 – 10 years that is generally reserved for serious cases which do not merit the top bracket of over 10 years (see
R v Millard
15 Cr App R (S) 445). As we have just stressed, this was extremely serious offending with a number of different losers. The lack of evidence of direct personal gain and the ambiguity over the exact extent to which Panchal acted as a director – given the important role he played in the company – are of little weight when balanced against the seriousness of this offence, and these factors are overshadowed by the extent of the overall loss and the dishonesty involved. This period was not manifestly excessive or wrong in principle.
132.
In all the circumstances the renewed applications to appeal against sentence are refused.