Rogers & Ors, R v [2014] EWCA Crim 1680

Case No 201303723 C3201303725 C3201303869 C3201304369 C3[2014] EWCA Crim 1680
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Ipswich Crown Court
HHJ Overbury
T20127147
T20127149
T20127186
T20127214
T20137019
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/08/2014
Before
LORD JUSTICE TREACYMRS JUSTICE LANGHIS HONOUR JUDGE BEVAN QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
ReginaCrownBradley David RogersDefendantColin Martin SamuelsDefendantGeraldine FrenchDefendantMark Julian BellDefendant
M Skelley & M Dance (instructed by Registrar of Criminal Appeals) for RogersA Williamson & Miss B Jung (instructed by Registrar of Criminal Appeals) for SamuelsMiss P Mosesson (instructed by Registrar of Criminal Appeals) for BellN Lobbenberg QC & Miss D Mootien (instructed by Suffolk Trading Standards) for CrownHearing Hearing date: 15th July 2014
Judgment
[1]On 19th June 2013 in the Crown Court at Ipswich the appellant, Bradley Rogers, and the applicants, Samuels, French and Bell were convicted of certain offences after a trial lasting over two months. On 12th July 2013 they were sentenced as follows: Rogers, who had been acquitted of Counts 1 and 2, two conspiracies to defraud, was sentenced on Count 14 to 2 years and 10 months imprisonment for converting criminal property contrary to Section 327(1)(c) of the Proceeds of Crime Act 2002 (“POCA”). Bell, Samuels and French were each convicted of Counts 1 and 2, conspiracy to defraud. Bell was sentenced to 6 years 6 months imprisonment. Samuels to 5 years 6 months imprisonment; and French to 6 years 5 months imprisonment.[2]Bell, Samuels and French renew applications for leave to appeal against sentence after refusal by the Single Judge. French also renews an application for leave to appeal against conviction after refusal by the Single Judge.[3]There was a co-accused, Muldoon, who pleaded guilty to Counts 1 and 2 and was sentenced to 7 years and five months.[4]The allegations involved two advance fee frauds operated by Muldoon as the principal from call centres based in Spain or Turkey, employing British nationals who dealt with calls in respect of debt elimination or escort services. Consumers in the UK who called the centres, having seen websites or advertisements in the national press, were persuaded by staff to pay advance fees on false promises made to them of dates or debt elimination. The staff received commission through a cash card provided by a legitimate UK company. The money was paid into UK accounts of bogus UK companies and used to pay expenses. The profit was transferred to Spain.[5]As to the escort services fraud, many witnesses were told that they would be paid a fee by the person they dated and that there was lucrative earning potential. They were either asked to pay a fee in advance or were told that there was a date available for them, but they would have to pay a registration fee. Once payment had been made, the date would be cancelled and no further dates were forthcoming. The phone numbers used in the advertisements or websites had the prefixes 0871 or 0845 so the individuals being defrauded had no idea that they were speaking to a call centre based in Spain or Turkey.[6]The debt elimination fraud involved consumers being cold-called from lists bought from data providers by Muldoon and Bell. The customers were promised that their debts could be written off and bank charges reclaimed in return for a fee. Once again the calls appeared to come from UK, whereas in reality the call centres were based in Spain. The websites gave the false impression that the business operated in the UK and that it was authorised by the Ministry of Justice.[7]Consumers sent fees generated by the frauds to UK bank accounts which were controlled by a series of UK companies with multiple bank accounts. Overall, about £5.7 million was obtained. Those accounts were controlled from Spain by the use of passwords. The defendants were linked to a number of the companies which had been set up to receive payments from the two frauds.[8]Turning to the role of individuals. Muldoon was the principal behind both frauds. Rogers, who was acquitted of the conspiracy counts, but convicted of money laundering, was Muldoon’s lieutenant in Spain. He is the holder of a UK passport. He received a large amount of money transferred into accounts controlled by him in Spain. Some £715,000.00 was received in small tranches so as to avoid any anti-money laundering provisions. He allowed Muldoon to control one of his accounts from which substantial monies were withdrawn.[9]Bell was Muldoon’s man in the UK, but he was active in Spain, and was consulted by Muldoon. Amongst other things he recruited individuals to act as directors in the bogus companies and used his legitimate business to provide telephone numbers and lines for the two call centres. He was also involved with the Ministry of Justice when investigations commenced with a view to misleading them.[10]Samuels received funds and distributed money from 2009 onwards. He was also involved in recruitment, used his company bank account to process money, and corresponded with the Ministry of Justice concerning the debt elimination fraud.[11]French worked as an administrator for Muldoon. She was an accountant. Although based in Spain, she returned to the UK on occasion to carry out tasks for Muldoon in relation to the fraud. She had knowledge of all the bank accounts in the UK and Spain, including login details and passwords. She moved money on Muldoon’s instructions and passed on his instructions to others in the conspiracy. She had set up accounts and companies to be used in the fraud and was named as a director for those companies, giving a false address.[12]She was involved in the deceit of AllPay Limited into providing a payment processing service for use in the fraud. She signed documentation relating to enquiries by the Ministry of Justice, which gave the impression that debt advice work was being carried out in the UK. She kept money transfers below any anti-money laundering levels. Some £274,000.00 was paid on her Capital One card.[13]At trial the issue for the jury in relation to the conspiracy counts was whether or not the individuals were involved in the fraud or believed that they were involved in a legitimate business. In relation to the money laundering counts, the issue was whether the defendant knew or suspected that he was dealing with criminal property. The conspiracy and money laundering counts were put and left to the jury in the alternative.[14]We deal first with Rogers’ grounds of appeal against conviction.[15]At the close of the Crown’s case a submission of no case to answer was made in relation to Count 10. This was charged as money laundering contrary to Section 327(1) of the Proceeds of Crime Act 2002. The particulars of offence alleged that Rogers:
“Between 23rd day of October 2007 and 1st day of September 2010 removed the sum of £715,000.00 being criminal property obtained by fraud from England and Wales by arranging for the said sum to be transferred from the jurisdiction and delivered to his personal bank accounts in Spain.”
[16]Reference to Section 327(1) shows that this was an offence contrary to Section 327(1)(e):
“A person commits an offence if he – … (e) removes criminal property from England and Wales or from Scotland or from Northern Ireland”
[17]At the close of the Crown’s case the submission of no case was made on the basis that there was no evidence that Rogers was in any way involved in removing the money from the jurisdiction. Evidence had emerged in the course of cross-examination of the Crown’s financial investigator that whilst vast sums of money were transferred from the UK bank accounts to Spanish ones, including a Caja Mar account in the name of Rogers, anyone with the login details of the bank account could have completed the transfers. Rogers acknowledged that the account was his and that he held the login and password details. He accepted that he had permitted Muldoon to use the account and had provided him with the relevant passwords. The pattern of usage of the account reflected the change when the account became a vehicle for money laundering.[18]The judge accepted the submission that the evidence did not show that the removal of the money involved Rogers; it was effected by those with control of the various UK company bank accounts, who did not include Rogers in their number. Thus, the judge ruled that Count 10 could not succeed.[19]The Crown, however, had anticipated this possibility and some three weeks before the submission was made had indicated an intention to apply to amend the indictment in the event that a submission on Count 10 was successful.[20]The judge permitted an amendment to be made. It took the form of a new count, Count 14, being added to the indictment. The statement of offence was the same as before, but the particulars now alleged that Rogers:
“Between 23rd day of October 2007 and 1st day of September 2010 converted the sum of £715,000.00 being criminal property obtained by fraud from England and Wales by permitting the receipt of money into his personal bank accounts in Spain and allowing the subsequent withdrawal of the money.”
[21]Reference to Section 327 shows that this amended count was brought under Section 327(1)(c):
“A person commits an offence if he – … (c) converts criminal property.”
[22]Rogers now appeals against conviction on three grounds. i) The judge was in error in permitting amendment of the indictment after a successful submission at the close of the prosecution case. ii) He erred in ruling that the Crown Court had jurisdiction to deal with the amended count in circumstances where all the activities alleged within the account were undertaken in Spain by a non-resident of the UK in relation to a Spanish bank account. iii) He erred in ruling that the acts alleged in the amended count were not subsumed by the conspiracies in Counts 1 and 2.[23]Dealing with the first ground, it is submitted that an amendment should only have been allowed if it was necessary and if it could be made without injustice. No specific injustice or prejudice to the appellant has been identified beyond that which would flow from the court lacking jurisdiction to entertain the amended count.[24]Section 5(1) of the Indictments Act 1915 provides:
“Where before trial or at any stage of the trial it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case the required amendments cannot be made without injustice.”
[25]The essential test is whether injustice would be caused to the accused by an amendment. Clearly, the longer an amendment is delayed, the greater the possibility of an accused showing that he has been injuriously affected.[26]Subject to the issue which arises in ground two on jurisdiction, we can find no injustice arising from the amendment in this case. The facts which the appellant had to meet were in no way changed by the reframing of the allegation. The evidence showing that laundered monies entered his bank account and then left it remained the same. He acknowledged the accuracy of that evidence. His case was that Muldoon had accessed the money which went through the account. His role in the matter and his defence that he had no criminal involvement remained the same. Subject to ground two, we are satisfied that there was no injustice in permitting the amendment, which was in accordance with the overriding objective of the criminal procedure rules of acquitting the innocent and convicting the guilty, and dealing with both prosecution and defence fairly.[27]It is convenient next to turn to ground three in relation to which it is submitted that the acts alleged in the amended count were subsumed by the conspiracies in Counts 1 and 2. Counts 1 and 2, as already stated, involved conspiracies to defraud by dishonestly(1) obtaining funds from customers, and(2) making arrangements whereby funds provided by customers for the provision of services were diverted to the conspirators. Those overarching elements of the fraud were then supplemented in each count by a series of “principal overt acts” reflecting the mechanics of the fraud.[28]The submission is made that because the counts refer to the making of arrangements whereby funds obtained by fraud were diverted to the conspirators, the alleged conversion of money by Rogers was subsumed into those counts and the Crown should have elected as to whether to pursue conspiracies or substantive counts. It was not fair to permit the jury to consider a separate substantive count which alleged the same criminality.[29]In our judgment, this ground is not well founded. The conspiracy to defraud counts represent a different crime from conspiracy to launder money. The detailed structure of the conspiracy counts, as set out in the indictment, cover a considerably wider range of activity than that alleged in the amended count against Rogers. The fact that there was one element common to both the conspiracy and the substantive count does not make good the appellant’s argument. The two types of count were always presented as alternatives, with the substantive count clearly representing a significantly diminished area of criminal responsibility as the sentence passed shows. Moreover, the mental element required for a conspiracy to defraud is significantly more difficult for the Crown to prove than that required for a Section 327 offence, which requires that the offender knows or suspects that the property is a person’s benefit from criminal conduct.[30]For these reasons we do not consider that ground three can succeed.[31]We then turn to ground two which raises a point of jurisdiction, the submission being that the judge was wrong to hold that there was jurisdiction in English courts to cover an allegation of criminal property obtained by fraud in this country by a person living and working in Spain who merely permitted money to be received into his Spanish bank account and then withdrawn from it.[32]It is asserted that whilst the conspiracies to defraud led to UK consumers paying money into UK company bank accounts, the consumers suffered loss at that point. The subsequent transfer of those funds might have amounted to an offence under Section 327(1)(e) had Rogers been involved in that; however, there was no evidence that he was and so the judge correctly accepted the submission of no case to answer on the allegation of money laundering in its original form.[33]The argument continues that the amended allegation of conversion of criminal property by permitting the receipt and withdrawal of money from the Spanish bank account did not involve any additional loss to any UK consumer. Nor did that allegation involve any activity taking place within this jurisdiction. Anything done by the appellant was therefore outside the jurisdiction of the English courts.[34]Mr Skelley, on behalf of Rogers, submitted that the primary basis of English criminal jurisdiction is territorial, it being the function of the English criminal courts to maintain the Queen’s peace within her realm. Accordingly, therefore our courts are not concerned with conduct abroad unless there is a statutory provision indicating to the contrary. The well established presumption in construing a statute creating an offence is that in the absence of clear words to the contrary, it is not intended to make conduct taking place outside the territorial jurisdiction of the Crown an offence triable in an English court. Reliance was placed on the speech of Lord Diplock in Air India v Wiggins [1980] 71 Cr App R 213 at page 217.[35]Mr Skelley submits that there is no specific statutory provision within the Proceeds of Crime Act which would give the court jurisdiction. He contrasts the position with, for example, the offences of dishonesty set out in Part 1 of the Criminal Justice Act 1993 as amended.[36]The Crown acknowledges those general rules or presumptions, but submits firstly that the provisions of POCA provide the necessary jurisdiction in circumstances such as these for money laundering offences. Secondly, it is submitted that modern law has moved away from testing whether an offence was committed within the jurisdiction by asking if the essence or gist of the offence took place within the jurisdiction, and denying jurisdiction in cases where the consequences of the criminal conduct occurred outside the jurisdiction.[37]The Crown argues that based on more modern views of jurisdiction, the absence of any geographical limitation in the definition of statutory offences means that the existence and extent of any such limitation is to be discovered by applying a presumption as to Parliament’s intention extraneous to the definition of the offence. The rules of international comity provide the source of such a presumption. These rules do not require more than that each sovereign state should refrain from punishing persons for their conduct within the territory of another state where the conduct has had no harmful consequences within the territory of the state that imposes the punishment.[38]We were referred to the speech of Lord Diplock in Treacy v Director of Public Prosecutions [1971] 55 Cr App R 113 at pages 140-141. This approach was reflected in the decision of the Privy Council in Liangsiriprasert v Government of United States of America [1991] 92 Cr App R 77 (see Lord Griffiths at pages 88-90).[39]In R v Smith (Wallace Duncan) [Smith No 4] [2004] 2 Cr App R 17 Lord Woolf CJ adopted the approach in Treacy and Liangsiriprasert as well as that taken by Rose LJ in R v Smith (Wallace Duncan) [1996] 2 Cr App R 1 [Smith No 1]. The court held that where a substantial measure of the activities constituting a crime takes place within the jurisdiction, then the courts of England and Wales have jurisdiction to try the crime, save only where it can seriously be argued on a reasonable view that these activities should, on the basis of international comity, be dealt with by another country; in particular it was held that it is not necessary that the “final act” or the “gist” of the offence should occur within the jurisdiction.[40]Thus, there are two bases upon which the Crown seeks to uphold the judge’s ruling on jurisdiction in this case. Firstly, by reference to the statute; secondly, by reference to authority.[41]It was undisputed in the light of Fazal [2010] 1 Cr App R 6 that had the monies gone in and out of the appellant’s bank account in the UK, that would have been capable of offending Section 327(1)(c). The conduct alleged would have amounted to converting criminal property where it was the proceeds of the deceptions practised on the customers.[42]The question in this case was whether, in the circumstances of an allegation under Section 327(1)(c), the siting of the appellant’s bank account in Spain made a difference. The appellant’s contention is that it did; the acts of conversion of criminal property by permitting receipt of the monies there and allowing their withdrawal only took place in Spain.[43]The following provisions of the Proceeds of Crime Act 2002 are relevant. “Section 327(1) A person commits an offence if he - (a) conceals criminal property; (b) disguises criminal property; (c) converts criminal property; (d) transfers criminal property; (e) removes criminal property from England and Wales or from Scotland or from Northern Ireland. … (2A) Nor does a person commit an offence under subsection (1) if – (a) he knows, or believes on reasonable grounds, that the relevant criminal conduct occurred in a particular country or territory outside the United Kingdom, and (b) the relevant criminal conduct – (i) was not, at the time it occurred, unlawful under the criminal law then applying in that country or territory, and (ii) is not of a description prescribed by an order made by the Secretary of State. Section 340 (1) This section applies for the purposes of this Part.(2) Criminal conduct is conduct which – (a) constitutes an offence in any part of the United Kingdom, or (b) would constitute an offence in any part of the United Kingdom if it occurred there.(3) Property is criminal property if – (a) it constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and (b) the alleged offender knows or suspects that it constitutes or represents such a benefit. … (9) Property is all property wherever situated and includes – (a) money; (b) all forms of property, real or personal, heritable or moveable; (c) things in action and other tangible or incorporeal property. … (11) Money laundering is an act which – (a) constitutes an offence under section 327, 328 or 329, (b) constitutes an attempt, conspiracy or incitement to commit an offence specified in paragraph (a), (c) constitutes aiding, abetting, counselling or procuring the commission of an offence specified in paragraph (a), or (d) would constitute an offence specified in paragraph (a), (b) or (c) if done in the United Kingdom.”

Section 340

[44]We note that whilst Section 327(1)(e) stipulates that criminal property must be removed from England, Wales, Scotland or Northern Ireland, no such geographical limitation is placed on the other methods of committing the offence, including Section 327(1)(c) “converts criminal property”.[45]Section 327(2A) provides a defence to a person who knows or believes that relevant criminal conduct occurred outside the UK in circumstances where such conduct was not unlawful in that country at the time it took place. The definition of criminal conduct is contained in Section 340(2). The provisions of Section 327(2A)(a) and Section 340(2)(b) give a strong indication that a defendant’s money laundering activity abroad is potentially within the jurisdiction of the English courts.[46]The definition of criminal property in Section 340(3), taken together with the provision in Section 340(9) that “Property is all property wherever situated…”, is a further indication of the extra-territorial reach intended by Parliament.[47]Moreover, the specific provision at Section 340(11)(d) that money laundering is an act which would constitute an offence (including one under Section 327) if done in the United Kingdom, appears to admit of no other construction than that Parliament intended, extra-territorial effect to this legislation.[48]Mr Skelley sought to meet these points by arguing that any extra-territorial effect related only to the criminal property element. However, it seems to us that this submission is unsustainable given that Section 327(2A), Section 340(2) and Section 340(11) clearly relate to the conduct element of the offence rather than the criminal property element. When the direct question was put to Mr Skelley as to what alternative construction could be put on Section 340(11)(d), he frankly acknowledged that he was unable to suggest one. However, he submitted that the language used fell short of indicating a clear intention by Parliament to confer exterritorial jurisdiction. This being a penal statute, he submitted that there was an element of uncertainty and made a contrast with the drafting style of the Criminal Justice Act 1993 as amended, which he said deals with jurisdiction in a more explicit way.[49]We do not dissent from that last proposition, but have come to the conclusion that there was jurisdiction to try this appellant based on the provisions we have referred to, and in particular those at Section 340(11)(d). Whilst the monies obtained by the fraud in the UK became criminal property once they reached a bank account in the UK controlled by the conspirators, those proceeds did not cease to be criminal property when they arrived in the appellant’s bank account in Spain. By permitting the use of that bank account for receipt and then withdrawal of those monies, the appellant was converting them. We reject the argument that once the victims had been defrauded of their money and it had gone into the conspirators’ UK bank account, there were no further consequences for the affected consumers.[50]In our judgment, the actions of the appellant continued the harmful consequences of the fraud to be experienced by those victims in the United Kingdom by providing a haven further beyond the reach of UK consumers for the criminally obtained monies.[51]Even if, contrary to the foregoing points, the statute does not provide jurisdiction in this case, we would hold that the alternative basis put forward by the Crown suffices.[52]The offence of money laundering is par excellence an offence which is no respecter of national boundaries. It would be surprising indeed if Parliament had not intended the Act to have extra-territorial effect (as we have found it did).[53]We return to Smith (No 4) at paragraph 55 where Lord Woolf CJ, referring to Smith (No 1), said this:
“The essence of the reasoning of Rose L.J.’s judgment however comes later and is to be found in the passage of his judgment to which we have already referred where he deals with the astonishing consequences that can flow from the Harden approach. It also appears from the following paragraphs at the end of the judgment (p.20) which deal with the issue of jurisdiction in these terms: “The reliance of international banking on ever developing and advancing communications technology has added new weapons to the armoury of fraudsters, especially those whose purpose it is to perpetrate fraud across national boundaries. If the issue of jurisdiction in cases of obtaining is to depend solely upon where the obtaining took place it is likely that the courts, and especially juries, will be confronted with complex and, at times, obscure factual issues which have no bearing on the merits of the case. This Court must recognise the need to adapt its approach to the question of jurisdiction in the light of such changes. In Liangsiriprasert v Government of the United States of America (1991) 92 Cr.App.R. 77, 89, [1991] 1 A.C. 225, 250A, Lord Griffiths, giving the opinion of the Privy Council in a conspiracy case, having referred to the judgment of the Chief Justice of Hong Kong, Roberts C.J. said ‘The passage in Treacy v Director of Public Prosecutions (1971) 55 Cr.App.R. 113, [1971] A.C. 537 to which Roberts C.J. refers is the celebrated discussion by Lord Diplock on the bounds of comity and the judgment of La Forest J. in Libman v. R. (1985) 21 C.C.C. (3d) 206 contains a most valuable analysis of the English authorities on the justiciability of crime in the English courts which ends with the following conclusion at p.221: “The English courts have decisively begun to move away from definitional obsessions and technical formulations aimed at finding a single situs of a crime by locating where the gist of the crime occurred or where it was completed. Rather, they now appear to seek by an examination of relevant policies to apply the English criminal law where a substantial measure of the activities constituting a crime take place in England, and restrict its application in such circumstances solely in cases where it can seriously be argued on a reasonable view that these activities should, on the basis of international comity, be dealt with by another country.””
[54]It seems to us that those observations are apposite to the present case. They demonstrate the modern approach to jurisdiction, involving an adjustment to the circumstances of international criminality.[55]The criminal acts which led to the property in this case becoming criminal property for the purposes of the Act plainly took place in and had an impact upon victims in the UK. The laundering of the proceeds by this appellant in Spain is directly linked to those acts in the UK by virtue of the fact that the property is criminal property. This is not a case where the conversion of criminal property relates to the mechanics of a fraud which took place in Spain and which impacted upon Spanish victims. In those circumstances our courts would not claim jurisdiction. But in this case when the significant part of the criminality underlying the case took place in England, including the continued deprivation of the victims of their monies, there is no reasonable basis for withholding jurisdiction, as is explained in Smith (No 4). This is not an offence in which the Spanish authorities would have an interest.[56]Accordingly, we hold that on this alternative basis, there was jurisdiction to try this appellant. For these reasons his appeal against conviction fails and is dismissed.[57]Next we turn to French’s renewed application for leave to appeal against conviction. Her case is before the court as a non-counsel application. We have considered the papers. She submits that: i) The judge misdirected the jury by inviting them in the summing-up to speculate on a matter upon which they had not heard evidence, namely the sequence of events in respect of the sending of certain emails. ii) The judge misdirected the jury in inviting them to draw a conclusion adverse to the applicant on the basis of matters which had not been clarified or explored in evidence. iii) These misdirections are highly likely to have affected the jury, particularly having regard to the timing of those matters at the end of the summing-up. iv) In all the circumstances the convictions are unsafe.[58]The area of criticism relates to the judge’s summing-up of the case concerning French, whom he dealt with last before sending the jury out. The particular matters raised concern the judge’s summing-up of matters in relation to AllPay. The judge referred to a series of emails sent to AllPay by the appellant which had been examined during the trial. In evidence she said that she felt ashamed of what had happened with AllPay, and as she put it, she considered it to be “one of the sharpest business dealings”.[59]She effectively acknowledged that she had lied to Mr Durkin of AllPay. She initially did not use the word “lie”. She spoke of avoiding telling the truth. But she also agreed that either Mr Durkin had made mistakes in his record of what took place at a meeting or that she had told many lies. In the end she acknowledged lying in her dealings with AllPay, but said that she had been bullied by Muldoon.[60]The judge put before the jury that the Crown and defence had gone into close detail in relation to the emails and their timings, and that French’s case was that she did not control the lies told to AllPay, and that every time she sent a response to them, she would have obtained Muldoon’s consent before it was sent. The judge then invited the jury’s attention to a series of emails sent on 10th February 2010 and made comments that one of them could lead to the conclusion that it had been sent to the recipient before she could have had contact with Muldoon about it.[61]It is this observation by the judge which is the subject of criticism. At the end of the summing up counsel took a point based a possible difference of computer timings between the UK and Spain where French was based. The judge declined to correct what he had said because he said that no evidence had been given about any difference between computer timings as between the UK and Spain and he was reminding the jury of the evidence as it had been placed before them. The matter was left there, but is now the subject of these grounds of appeal.[62]We do not consider that there was improper speculation by the judge. He was dealing with the evidence as it had been adduced before the jury. If there was a point to be made for the defence, it had not been taken in evidence. Nor is there evidence before us now to show that the material before the court was in fact in error or should have been regarded differently. Even if it was, in our judgment this was a detail in a single area of the case in which there was ample other evidence that the appellant had knowingly lent herself to furthering a dishonest scheme in relation to AllPay. Moreover, as the Single Judge observed, the overall evidence in the case was extremely strong and showed conduct which strongly pointed towards dishonest conduct and guilty knowledge in a variety of ways going beyond dealing with AllPay.[63]The matter complained of is not one which, in our judgment, could have made any material difference in the overall scheme of things. There is nothing to lead us to conclude that it is arguable that French’s conviction was unsafe, and her renewed application in this respect is refused.[64]We now turn to the renewed applications relating to sentence.[65]Mark Bell, Colin Samuels and Geraldine French renew their applications for permission to appeal against sentence, which were refused by the Single Judge.[66]All three of them were convicted, after trial, on the two counts of conspiracy to defraud - operating advance fee frauds in respect of escort services and debt elimination.[67]Mr Bell was sentenced to 6 years 6 months (or 78 months) imprisonment on each count, to run concurrently. Mr Samuels was sentenced to 5 years 6 months imprisonment (or 66 months) on each count, to run concurrently. Ms French was sentenced to 6 years 5 months (or 77 months) imprisonment on each count, to run concurrently. Mr Muldoon, who was the architect of the frauds, and benefited the most financially, pleaded guilty to the two conspiracy counts and was sentenced to 7 years 5 months (89 months) with a 10 percent discount reduction for his guilty plea. Without a discount the sentence would have been in the region of 8 years 3 months (99 months).[68]Each of the applicants submits that the sentence passed was manifestly excessive in the light of the sentences passed on their co-defendants.[69]On behalf of Mr Bell, it is submitted that his sentence did not fairly reflect the differences between his role as trusted adviser and that of Mr Muldoon, who was the prime mover. Mr Muldoon made significant financial gains, close to £2 million, whereas Mr Bell only received £57,000. He was, however, heavily involved in the conspiracy which provided such gains for Muldoon.[70]On behalf of Mr Samuels, it is submitted that his sentence was disproportionately excessive in comparison with the sentences passed on Mr Muldoon, Mr Bell and Ms French. His role was much more limited. Moreover, he was only involved in the escort fraud for 1 month (24 November 2009 to 23 December 2009), although he then went on to commit the fraud alleged in Count 2.[71]On behalf of Ms French, it is submitted that the Judge failed to distinguish her position, as an employee of Mr Muldoon, from that of Mr Bell, who was an independent business man in a voluntary partnership with Mr Muldoon, and who benefited more financially.[72]This was a sophisticated fraud, operating at a professional level, over a substantial period of time. The Crown estimated that over £5.6 million had been taken from thousands of consumers, some of whom were vulnerable.[73]Conspiracy to defraud has a maximum sentence of 10 years. At the relevant time, there were no sentencing guidelines.[74]In our judgment, the sentencing judge fairly and properly assessed the differing roles played by each of the co-defendants. He recognised that Mr Muldoon was the architect and prime mover, who made substantial financial gains. His sentence was lower than it would otherwise have been because of his guilty plea and the fact that he was in his late 60’s and in ill-health.[75]The judge found that Mr Bell, Mr Samuels and Ms French were Mr Muldoon’s “trusted accomplices” who played vital roles, without which the frauds would not have succeeded. The judge concluded that Mr Bell and Ms French had pivotal roles in the conspiracies. Bell was Mr Muldoon’s business partner, who used his companies to provide telephone lines and bank accounts. He set up the White Eagle payment card and the Turkish call centre and liaised with the Ministry of Justice. French was Mr Muldoon’s administrator who made the necessary arrangements for the dishonest transfers of funds. She set up companies and acted as a director.[76]The judge acknowledged that their roles differed, but he concluded that it would be artificial to distinguish between them in terms of culpability. They were both involved throughout; they had a broad range of responsibilities, including recruitment; and both were fully aware of the dishonest nature of the schemes. Both had benefited financially; French to a lesser extent than Muldoon. Both were of previous good character.[77]The judge took into account their personal mitigation. Ms French was 60 years of age with health problems. Mr Bell voluntarily surrendered to the jurisdiction and he had family responsibilities.[78]The judge found that Mr Samuels played a significant role. He provided his own company and accounts for use in the conspiracy. He recruited Mr Owen, another co-defendant, on a false basis and instructed him in what to do. He acted as a front in dealings with the Ministry of Justice. The Judge expressly recognised that he became involved at a later stage of the conspiracies in 2009, and we consider that was reflected in his lesser sentence.[79]The judge took account of Mr Samuels’ mitigation, to the effect that he had benefited to a limited extent from the fraud, and treated him as a man of good character.[80]In our judgment, the sentences passed were not manifestly excessive for a case involving large-scale and persistent frauds with a number of aggravating elements. Nor was there any unfair disparity. The judge had the benefit of presiding over the trial and was well able to assess the role which each co-defendant played, on the evidence before him. He gave a full and careful explanation for his conclusions. We do not consider that there is any basis upon which this court should interfere with the sentences passed.[81]Permission to appeal is refused.

Cited in 8 later judgments