The Queen v Christine Hyperlink Includepicture Mergeformatinet
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pitchers |
| Judgment Date | 08 December 2005 |
| Neutral Citation | [2005] EWHC 2828 (QB) |
| Date | 08 December 2005 |
| Court | Queen's Bench Division |
| Docket Number | Case No: T20040074 (CHESTER CROWN COURT) |
[2005] EWHC 2828 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand. London. WC2A 2LL
MR JUSTICE PITCHERS
Case No: T20040074 (CHESTER CROWN COURT)
Mr Stephen Climie & Rupert Mayo (instructed by the Serious Fraud Office) for the Applicant
Mr Edmund Lawson QC & Mark Bryant Heron (instructed by) Herbert Smith Solicitors for Iain Douglas Charles Cater
Mr Timothy Langdale QC & Ian Winter (instructed by)BCL Burton Copeland Solicitors for Dieno George
Mr Jonathan Caplan QC & William McCormick (instructed by) Eversheds LLP for Paul Anthony Sanders
Mr Charles Salmon QC & Christopher Coltart (instructed by) Cooper Kenyon Burrows Solicitors for Christine Ann Davenport
Mr Peter Wright QC & Elizabeth Nicholls (instructed by) JMW Solicitors for Brian James John Ruane
Mr David Lane QC & Duncan McDiarmide (instructed by) Maidments Solicitors for Colin Frances Wilson
Hearing date: 25 November 2005
HTML VERSION OF JUDGMENT ____________________
This is an application by the prosecution, the Serious Fraud Office ('SFO'), for consent to prefer a Voluntary Bill against the Defendants (to whom, for brevity, I shall refer hereafter simply by their last names) following the dismissal of charges against them by His Honour Judge Stephen Clarke at Chester Crown Court on 14 December 2004 (Cater, George and Sanders), 16 June 2005 ( Davenport and Ruane in part) and 28 July ( Davenport and Ruane as to the remaining counts, and Wilson).
History of the case
The allegations against these Defendants arose out of the conduct of the business of SSL International plc ('SSL') during 1999 and 2000. All the Defendants save Wilson were very senior members, at director level, of that company.
For reasons that will become apparent, it is unnecessary for me to set out save in the most general terms the nature of the prosecution case against the Defendants. In very short summary what is said against them is this. SSL, it is alleged, with the knowledge of the Defendants, had inflated the sales figures for the accounting periods in question by including sales which had not taken place. This had the effect of enabling the company to meet its sales targets and inflated the profits. The defence case in equally summary form is that, to the extent that each Defendant knew what was going on, what was happening was the operation of the legal practice of 'trade loading' that is agreeing with customers, usually at the end of an accounting period, to supply them with goods in advance of their needs usually at a discount. The prosecution acknowledge the existence and legality of 'trade loading' but argue that SSL went further than was legal in the period covered by the indictment.
In April 2001, accountants KPMG and solicitors DLA carried out an investigation at the behest of the board of SSL. As a result of that investigation, the SFO were informed in June 2001. Their investigation including interviews with all Defendants concluded with charges in October 2003. On 5 November 2004, the case was transferred to Chester Crown Court under the provisions of section 4 of the Criminal Justice Act 1987.
The indictment contained a number of different counts but at its heart were allegations of offences contrary to section 19(1) of the Theft Act 1968:
False statements by company directors, etc
(1) Where an officer of a body corporate or unincorporated association (or person purporting to act as such), with intent to deceive members or creditors of the body corporate or association about its affairs, publishes or concurs in publishing a written statement or account which to his knowledge is or may be misleading, false or deceptive in a material particular, he shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years.
(2) For purposes of this section a person who has entered into a security for the benefit of a body corporate or association is to be treated as a creditor of it.
(3) Where the affairs of a body corporate or association are managed by its members, this section shall apply to any statement which a member publishes or concurs in publishing in connection with his functions of management as if he were an officer of the body corporate or association.
In December 2004 and June 2005, His Honour Judge Stephen Clarke held hearings of four and five days respectively and dismissed the charges as set out in paragraph 1 above. He gave his reasons for those decisions in two detailed reserved judgments. The argument before the judge centred on the issue of whether the evidence was sufficient for a jury properly to convict in relation to the falsity of the sales figures appearing in the accounts. Because they succeeded on that issue, it was unnecessary for the judge to consider the state of the evidence in relation to the other matters the prosecution had to prove, in particular the knowledge of each Defendant of any proved falsity.
On 2 September 2005, the SFO made this application for consent to prefer a Voluntary Bill of Indictment. They supported it with a number of new witness statements by far the most important of which is a report from a forensic accountant, Mr Medland. The grounds of the application are that (Application 4.1(a)) 'there was and is sufficient evidence contained in the papers to prove that the accounts were false and that the learned judge fell into error in determining that this was not so.' The subsidiary grounds are based on the Medland Report which the Crown argue makes good a criticism made by the judge that there was no expert evidence and supports their case as to falsity.
In accordance with modern practice, the Defendants were notified of the application and each made written submissions. Those submissions, to an extent, mirrored the submissions that had succeeded before the judge. However, each Defendant advanced the argument that this application was in principle misconceived with or without the new evidence and that the court should not permit the Crown to rely on the new evidence in support of their application.
It was clear to all that a full hearing, including reading time for the judge, would take at least two weeks. However, if the defence succeeded on the question of principle, the bulk of the argument would be rendered unnecessary. Therefore, potentially to avoid delay and save time and money, it was agreed that I would hear argument on this issue as a preliminary point. I have done so after hearing oral argument from counsel on both sides. Although the Crown sought to argue that different considerations apply as between Defendants even at this preliminary stage, in my judgment, on the point of principle, the Defendants stand or fall together.
This course has meant that it has not been necessary for me to examine the detailed facts of the case nor to hear arguments upon them. I have therefore formed no view as to the underlying merits and hence express no views upon them. I have considered the evidence and the arguments only to the extent that it has been necessary to do so to apply the matters of general principle to this case.
The statutory framework.
The effect of dismissal of transferred charges is set out in subsection 6(5) of the Criminal Justice Act 1987:
“Dismissal of the charge, or of all the charges, against the applicant shall have the same effect as a refusal by examining magistrates to commit for trial, except that no further proceedings may be brought on a dismissed charge except by means of the preferment of a voluntary bill of indictment”
The statute does not provide any right of appeal against the allowing or the refusal of an application to dismiss transferred charges. In a number of cases, the Divisional Court has been prepared to entertain a judicial review of the decision to dismiss or not to dismiss. See, for example, R v Central Criminal Court, ex parte Director of Public Prosecutions [1993] 1 WLR 949, R v The Crown Court at Snaresbrook, ex parte the Director of the Serious Fraud Office (1998) LSG 35 and R (on the application of the Inland Revenue Commissioners) v Crown Court at Kingston [2001] 4 All ER 721.
In a more recent case, R (Snelgrove) v Woolwich Crown Court [2005] 1 Cr App R 18, the Divisional Court held that the decision of the Crown Court on an application to dismiss following the 'sending' of a case to the Crown Court under s51 of the Crime and Disorder Act 1998 was 'a matter relating to trial on indictment' and hence judicial review was not available because of s29(3) of the Supreme Court Act 1981. It is hard to see any difference in principle...
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