Randhawa & Anor, R. v [2008] EWCA Crim 2599

Case No 2007/03696/C2

[2008] EWCA Crim 2599

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday 22 October 2008

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE LEVESON

MR JUSTICE DAVID CLARKE

and

HIS HONOUR JUDGE MORRIS QC

(Sitting as a Judge of the Court of Appeal, Criminal Division)

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- v -

Between

CHARNJIT SINGH RANDHAWA

JUSVIR KAUR RANDHAWA

__________________

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Mr R De Mello appeared on behalf of both Applicants

Mr N Cole appeared for Crown

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J U D G M E N T

[1]On 26 January 2007, at the Crown Court in Worcester, before His Honour Judge McEvoy QC and a jury, the applicants, Charnjit Singh Randhawa and Jusvir Kaur Randhawa, were convicted of taking part or being concerned in the promotion, formation or management of a company whilst being undischarged bankrupts (counts 1 and 2), and of contravening an order disqualifying them from being company directors (counts 3 and 4), contrary to sections 11(1A)(a) and 13 of the Company Directors Disqualification Act 1986 respectively. On 23 April 2007 Charnjit Randhawa was sentenced to a total term of 15 months' imprisonment and was disqualified from being a company director for twelve years with effect from 14 May 2007. Jusvir Kaur Randhawa was sentenced to a term of nine months' imprisonment suspended for a period of two years, with a supervision requirement for that period. She was similarly disqualified from being a company director for the same term.

[2]Both applicants applied for an extension of time (four months for conviction and one and a half months for sentence) in which to apply for leave to appeal against conviction and sentence. Their applications have been referred to the full court by the Registrar.

[3]In circumstances to which we shall refer, the applications for leave to appeal against conviction have been abandoned. We granted leave to appeal against sentence and proceeded to determine the matter.

[4]The facts may be summarised briefly. The appellants (as we now call them) are married. They reside in Worcester. Prior to August 2003 they had both been involved in running a number of companies and trading enterprises, which included 3RDGN Limited, Simply Dilish Limited, and GB Lucky Bag Company Limited.

[5]On 29 July 2003 both appellants gave disqualification undertakings for a period of ten years from 21 August 2003 pursuant to section 1A of the Company Disqualification Act 1986. These undertakings were given as a result of their conduct in relation to GB Lucky Bag Company Limited, which entered into voluntary liquidation in April 2000 with an estimated deficiency of £853,826. It was alleged that the appellants, as directors of GB Lucky Bag Company Limited, had caused or permitted false or misleading accounts to be prepared, exaggerated sales figures, provided false invoices and transferred stock, fixtures and fittings, together with intellectual property rights, to the detriment of their creditors.

[6]On 5 July 2004 the appellants were adjudged bankrupt.

[7]The prosecution case in these proceedings was that after they had been disqualified by virtue of their undertakings, and after their bankruptcy, they were involved in the promotion, formation or management of two companies, namely Diverse Surface Solutions Limited and No Slip (Cheltenham & Gloucester) Limited.

[8]Put shortly, Diverse Surface Solutions Limited started life as a "shelf company" named Burbidge Limited. On 23 December 2003 Charnjit Randhawa was appointed as a director of the company. On 5 August 2004 the company changed its name, by special resolution, to Diverse Solutions Limited. The business activity of that company was the production of bottles of cleaning liquid for the kitchen or bathroom. The appellants together and separately approached at least six businesses with a view to obtaining assistance with their company Diverse Solutions Limited.

[9]No Slip (Cheltenham & Gloucester) Limited was a franchise of a company called Tile Slip UK Limited that had patented a product which claimed to prevent people from slipping on tiled floors. It was said that the appellants appointed an elderly woman named Jeeto Kaur as a nominal director, but in fact managed this business themselves.

[10]Although not material to the appeal against sentence, it is important to explain how the prosecution proceeded. Informations were originally laid at the Worcester Magistrates' Court in January 2006. In May 2006, at the Worcester Crown Court, at a plea and case management hearing the appellants were arraigned and entered pleas of not guilty. In June 2006 the representation order was transferred to new solicitors. Time was granted for the preparation of a defence case statement. In July 2006 the defence were not ready. In September 2006 the case came before His Honour Judge Peace Higgins and the trial date was fixed for 22 January 2007. During this period the prosecution served a notice of application to put in bad character, the details of which are not material. It is sufficient to say that this led to an application before His Honour Judge McCreath on 6 November 2006 for specific disclosure in respect of 100 lever arch files which related to the circumstances in which the appellants had originally been disqualified. The application was dismissed. The observation was made that the defence case statements still had not been served.

[11]Meanwhile, the representation order granted to Charnjit Randhawa had been further amended.

[12]On 10 January 2007 an application was made before His Honour Judge Matthews again to transfer the representation order. The judge ruled that there was no justification for the application and that the last named solicitors should continue to act.

[13]On 18 January 2007 the case was again listed in order to ensure that everything was ready for trial. Mr Mehey, counsel for Charnjit Randhawa, repeated his application for an adjournment. He repeated the submissions that he had made to His Honour Judge McCreath and His Honour Judge Matthews in relation to the 100 files. He submitted that the appellants could not have a fair trial. The application was refused.

[14]On 26 January 2007 Mr Mehey submitted to His Honour Judge McEvoy that, in the light of the ruling refusing the adjournment, he was professionally embarrassed and would have to withdraw from the case. He was not content to act without sufficient instructions or without time to peruse the material contained in the 100 lever arch files in order to establish their relevance to rebut the bad character application. He submitted that to act otherwise would be professionally negligent. Mr Salhan, counsel on behalf of Jusvir Kaur Randhawa, said that he had not been aware that Mr Mehey on behalf of Charnjit Randhawa, and Jusvir Kaur Randhawa, had by then commenced proceedings for judicial review seeking an adjournment and disclosure of the relevant material. The judge ruled that the time had come when he had to balance the interests of the public and those of the appellants to see whether the trial should continue, given the circumstances that had arisen. He came to the firm conclusion that it was in the interests of justice that the trial should proceed without further delay and that as a consequence both appellants would have to defend themselves.

[15]The trial therefore proceeded. It does not appear that any defence case was presented. The appellants were convicted.

[16]The basis upon which the material was sought, according to Mr Mehey, was in order to advance a defence of duress to the original agreed disqualification. That defence was ruled by a number of the judges before whom this case came to be heard as "unavailable", not least because it was a disqualification ordered by the court which was valid until set aside. Furthermore, it is worth underlying that, whatever arguments might have been mounted in relation to the conduct of the appellants while disqualified, no defence was revealed to the two counts which alleged being concerned in the promotion, formation or management of a company whilst being undischarged bankrupts.

[17]It is clear that the appellants felt considerably aggrieved by the prosecution. They made their position clear to the probation officer who prepared pre-sentence reports upon them. The author of the report on Charnjit Randhawa recorded that the appellant did not consider that he had committed any offences and did not acknowledge his guilt to any. Not surprisingly, the report concluded that he was likely to commit further offences. The author of the report on Jusvir Kaur Randhawa recorded that she had little understanding of why it was an offence to be concerned in the management or formation of a company while being an undischarged bankrupt, and did not accept that she had committed any offence.

[18]In those circumstances the judge took the view that both appellants posed a significant risk to the public. He also took the view that the circumstances in which the appellants came to have been deprived of legal representation were brought about entirely by themselves. During the course of his sentencing remarks he observed that Charnjit Randhawa had failed to engage with the prosecution, had failed to submit a defence case statement, and had acted in a way such that he concluded that he had tried to prevent the case from proceeding by deliberately employing delaying tactics. He concluded that the 100 lever arch files for the civil case were not relevant. If he was wrong about that, the avenue open to the appellant was to appeal to the Court of Appeal.

[19]The judge took the view that Jusvir Kaur Randhawa was in a different position. She had co-operated with her advocate from an early stage of the proceedings. However, she had given new instructions which had caused her advocate to withdraw. She had therefore joined with her husband to frustrate the trial proceedings. It is in these circumstances that the sentences were passed.

[20]In their applications for leave to appeal against conviction, a number of very serious allegations were made against counsel acting for Charnjit Randhawa and against the advocate acting for Jusvir Kaur Randhawa. The allegations necessarily involved a waiver of privilege. We have now seen a considerable body of evidence both from the appellants and from their legal advisors. On examination, however, Mr de Mello has accepted that the undertakings given to the Companies Court remain valid until set aside and that as a result there was never a defence to any of the counts on this indictment. As a consequence, irrespective of the allegations made by the appellants about their legal advisors, he acknowledged that the safety of these convictions was not in doubt on the basis that the appellants now acknowledge that they were guilty of each of the offences with which they had been charged. That entirely sensible approach accords with our assessment of the position. As a result it has not been necessary to investigate the issues and conflicts between the appellants and their legal advisors, although we cannot leave the case without expressing our profound anxiety about some of the allegations and counter-allegations that have been made. These allegations justify, if not demand, further investigation elsewhere.

[21]Nevertheless, the applications for leave to appeal against conviction having been abandoned, we must approach the appeals against sentence on the basis of the circumstances as we now find them. We make it clear that when he passed sentence the learned judge was perfectly entitled, as Mr de Mello concedes, to take the view that he did in the light of the information that was before him as to the conduct of the defence case. Further, he was entitled, as again Mr de Mellow concedes, to take the view that the appellants represented a real danger to the public. Neither had admitted their responsibility for the offences for reasons which were utterly misconceived.

[22]Mr de Mello now approaches the appeals against sentence in reliance on the realism shown by both appellants. He does not seek to appeal against the sentences of imprisonment which in the case of Charnjit Randhawa has been served. Rather, Mr de Mello limits the appeal against sentence to the periods of disqualification imposed by the judge.

[23]When considering disqualification, the judge fixed upon twelve years. He expressed himself in these terms:

"I do that because -- particularly in view of your attitude which is reflected in the pre-sentence report. So in your case, Charnjit Singh Randhawa, that you for a period of twelve years shall not be a director of a company, act as a receiver of a company's property or in any way, whether directly or indirectly, be concerned to take part in the promotion, formation and management of a company unless in each case you have the leave of the court."

The judge repeated the same direction in relation to Jusvir Kaur Randhawa.

[24]As the learned judge knew, the undertakings ran for a period of ten years from 2003. This disqualification, which ran from 2007, would therefore extend the period of disqualification in each case by a period of something in the order of six years.

[25]Mr de Mello argues that the periods of disqualification are too long, not least because the appellants now recognise the gravity of the position and the importance of their obligation to comply with their undertakings to the Companies Court, unless and until those undertakings are set aside, and otherwise fully to comply with the company legislation. He points to the fact that of the £173,000, which was lost as a result of the companies involved in this indictment, there were very substantial sureties in place from guarantors who must have been considered sufficiently good for the money to justify this court now taking a view that the appellants have learned their lesson. Mr de Mello tells us that the guarantees have been called in. That has not been confirmed, but their existence is sufficient for the purpose of the point that he makes.

[26]It is obviously important that the disqualifications imposed for these serious breaches of the law reflect the gravity of the criminality. Equally, however, in our judgment it is appropriate to recognise the appellants' acceptance of the position, the sensible abandonment of the applications to appeal against conviction, and the way in which the appellants now present themselves to this court.

[27]It would be wrong to impose a disqualification which did not extend beyond the present undertakings. In the circumstances we are prepared to make limited reductions to the orders made without in any sense criticising the decisions of the learned judge in relation to either.

[28]We propose to allow the appeals to the extent of reducing the disqualification in relation to Charnjit Singh Randhawa to a period of ten years and that in relation to Jusvir Kaur Randhawa to a period of eight years. To that extent the appeals against sentence are allowed. ________________________________