Umerji, R v [2014] EWCA Crim 421

Case No 201103918 B5201103991 B5[2014] EWCA Crim 421
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Liverpool Crown Court
HHJ Swift
T20097226
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/03/2014
Before
LORD JUSTICE TREACYMR JUSTICE KINGMR JUSTICE TURNER
Between
ReginaCrownAbdullah AlladDefendantAdam UmerjiDefendant
James Pickup QC & Richard Simons (instructed by Messrs Garstangs Burrows Bussin) for Abdullah AlladWilliam Clegg QC & Miss Eleanor Sanderson (instructed by The Khan Partnership) for Adam UmerjiIan Unsworth QC & James Rae (instructed by Crown Prosecution Service) for RespondentHearing Hearing dates: 10th, 12th & 13th February 2014
Judgment

Introduction

[1]These are appeals against conviction, focusing largely on the issue of the absence of the two appellants from the trial in the Crown Court. There are, in addition, in the case of Allad, a number of other grounds which have been referred to the court by the Single Judge.[2]On 9th June 2011 in the Crown Court at Liverpool the appellants were convicted in their absence of(1) conspiracy to cheat the public revenue and(2) conspiracy to transfer criminal property. In each case a sentence of 12 years imprisonment was imposed on Count 1, with 5 years concurrent on Count 2. In addition, each man was disqualified for 10 years under Section 2 of the Company Directors Disqualification Act 1986.[3]There were three other co-conspirators on the indictment. Each of them pleaded guilty prior to trial. Sajid Patel, Umerji’s brother, was sentenced to 2 years imprisonment. Wai Fong Yeung was sentenced to 2½ years imprisonment; and Mohammed Mehtajee was sentenced to 4 years imprisonment.[4]It is not necessary to go into a great deal of detail about the offences. The fraud alleged was that type of VAT fraud known as a carousel fraud or an MTIC fraud. The allegation was that between 1st September 2005 and 30th June 2006 mobile phones were imported from the European Union, VAT free, to a UK VAT registered company. Those phones were then purportedly traded within the UK (where VAT should have been charged and paid on the different transactions) through a series of companies on paper only. The telephones were then exported back to the European Union whereupon dishonest claims for VAT refunds were made. The importer in each case disappeared without accounting for the VAT, thereby causing loss to the revenue in the sum of approximately £30 million.[5]The conspiracy itself was, inter alia, evidenced by virtue of the guilty pleas of the co-accused. Most of the evidence called at the trial was documentary. The Crown’s case was that there were 307 transaction chains involving the phones, in each of which there was a number of different missing traders. The Crown concentrated on four businesses as providing a sample of transactions to demonstrate the workings of the conspiracy.[6]Allad was a director of Eurosabre and resigned on 31st December 2005. Umerji took up a position as director on 1st January 2006, but was said to have been involved in the running of the company for some time previously. During the year ending April 2006 the company was said falsely to have documented a massive change in turnover, which increased to approximately £293 million. This company was involved in 222 of the 307 transactions concerned.[7]Master Trading was a company owned by Umerji’s brother, Sajid Patel. He and his wife were 50 per cent shareholders. This company was involved in 26 of the transactions, with a six month turnover to June 2006 of £14 million.[8]The co-accused, Yeung and Mehtajee, ran Armada UK, a business with which Allad had a connection. It also enjoyed remarkable growth and turnover during the relevant period, and was involved in 58 transactions.[9]Finally, Vertu Telecoms was a company in which Umerji and his brother had an interest. It was involved in a single transaction.[10]Those four companies were involved as exporters in the specified deal chains over a ten month period where a missing trader failed to account for VAT due. Umerji was arrested in September 2007. He made no comment in interview then or on later occasions. Allad was arrested and interviewed in October 2007 and again in 2008, but declined to comment on each occasion. Summonses were issued in early 2009 and the cases were sent to the Crown Court. The co-accused were joined later.[11]Umerji never attended court proceedings. Until late 2010 this was by arrangement with the court, Umerji spending time in Dubai. Allad had attended court proceedings until autumn 2010. On 10th December 2010 a warrant was issued for the arrest of Umerji as a result of his failure to attend court. Exactly one week later a warrant was issued in relation to Allad, who had failed to attend. A final trial date of 3rd May 2011 had been fixed in the early autumn of 2010, representing a postponement from an earlier intended date. That new trial date was undoubtedly known to both appellants. Neither appellant appeared before the court on the trial date, and the judge ruled that the trial should proceed in their absence.[12]Briefly put, the Crown’s case was that the appellants and co-accused were connected to the four companies at the heart of the fraud, being involved in 307 deal chains where there was a missing trader who failed to account for the VAT due. The appellants, as Eurosabre, were participating at the end of the chains of rigged transactions. They were only involved with chains where there were missing traders; they always sold out of the UK. They had no storage facilities and no distribution network. The phones simply went from missing traders to other businesses who were apparently selling them on, eventually arriving at Eurosabre, who never came into physical possession of the phones, and simply sold them straight out of the country again. The telephones were traded at great speed, often making the paper transaction circuit in this country within a matter of hours before being re-exported. On occasions it is clear that the same telephones were then re-imported and re-exported on additional occasions.[13]The Crown’s case relied upon the pattern of trading and circulation of funds to show that all parties were conspiring. The money used to fund the rigged market came from a company called Touchstone, and was then returned to Touchstone, together with the VAT that had been reclaimed. Banking documentation showed the movement of funds between companies. That showed that the internet provider (IP) addresses used by Eurosabre were used by Touchstone Investments and other companies based overseas.[14]All the companies used the banking facilities of the First Curacao International Bank (FCIB); many were using the same computer access point in the UK.[15]The Crown was able to trace monies deposited in Touchstone’s account at FCIB to the appellants via further companies registered in Dubai with accounts at FCIB. Those companies were run by Umerji and Allad. The Crown was thus able to show the withdrawal of funds generated by the fraud.[16]The issue for the jury was whether they were sure that the appellant whose case they were considering knowingly participated in the conspiracy.[17]As already stated neither appellant had commented in interview. The Crown had certified compliance or purported compliance with primary disclosure under Section 3 of the Criminal Procedure and Investigations Act 1996 (CPIA) in April 2010. By reason of Section 5(5) each appellant was obliged to give a defence statement to the court and the prosecutor. The judge had given ample notice of this, setting a date of 10th September 2010. Neither appellant ever filed any defence statement.[18]That failure did not prevent a series of applications being made to the court on behalf of Allad, raising questions of the admissibility of documents or evidence, the disclosure of evidence, and applications for a stay in the period between September 2010 and May 2011 when the trial was due to take place.[19]It is necessary next to say something about legal representation. Until September 2010 both men had the benefit of legal teams consisting of leading and junior counsel and solicitors. Up to September 2010 Umerji had the benefit of public funding. In that month his public funding was discharged so that he might continue to engage the counsel of his choice on a private basis. On 6th December 2010 that legal team notified the court that it was withdrawing from representing Umerji. The reasons for withdrawal are not entirely clear, but there is nothing to suggest that the withdrawal was due to any action or fault of Umerji. From that point onwards therefore Umerji was not represented before the court. That includes the period in May 2011 when the judge decided to proceed with the case in Umerji’s absence, although as will become apparent, a firm of solicitors, the Khan Partnership (Khan’s), made certain representations to the court on Umerji’s behalf, putting itself forward as amicus curiae.[20]Allad had the benefit of a full legal team up to the point at which the judge decided that the trial would proceed in the absence of the appellants. Once that decision had been made Allad’s legal team withdrew, thus leaving him unrepresented before the court as the trial proceeded in his absence. We would add that those representing Allad had had no contact with or instructions from him after 30th November 2010.

The Issuing of Warrants

[21]On 26th August 2009

the judge had circulated an email to the parties prior to the first Crown Court hearing stating:

“All defendants must appreciate, of course, that matters will progress in their absence if at any time they are not present in Court leaving aside any other sanction that may follow.”
[22]This was intended as a warning to the appellants of what would happen if they failed to appear when required at a future court hearing.[23]Arraignment was initially fixed for 15th November 2010. That date was put back to 23rd November as the original date coincided with Eid. The new date was then postponed as both appellants claimed that they were unfit to attend. Arraignment was then re-fixed for 10th December 2010 since the evidence before the court on 23rd November indicated that both men would then be fit to attend.[24]On 10th December neither appellant appeared for arraignment. In the light of further information concerning Mr Allad’s health, arraignment in his case was adjourned to 17th December. As to Mr Umerji, the court had by then received his solicitor’s letter of 6th December indicating their withdrawal from the case with the result that nobody attended court on 10th December to represent Mr Umerji’s interests.[25]In addition, the court had by then received a letter dated 8th December 2010 from Mr Umerji himself. In that letter Mr Umerji expressed shock at the withdrawal of his legal team and stated that his health was deteriorating as a direct result. He stated that as soon as his health was better he intended to take urgent steps to return to the UK in order to seek new legal representation. He asked for the court to adjourn his case until that occurred. That letter was sent as if from an address in Preston at which Mr Umerji was not living; he was in fact in Dubai.[26]On 10th December the judge considered medical evidence which had been provided. On Mr Umerji’s behalf there was a letter from a Dr Ismail of the American Hospital, Dubai, reporting an examination on 25th October 2010. It described an MRI scan of his lumbar spine showing a herniated disc. It said:
“I would advice [sic] to avoid any long distance travelling at least for the next four weeks.”
[27]That would have taken Mr Umerji up to the third week in November and explained the adjournment on 23rd November.[28]The MRI scan was provided to the Crown and by 10th December a report from Mr J Williamson, Consultant in spinal surgery at a Manchester hospital, was provided to the court. Mr Williamson confirmed the finding of the disc problem with resultant sciatica. A reasonably prompt resolution in symptoms could normally be expected from this type of slipped disc. The report concluded:
“With respect to the issue of Mr Umerji flying, there is no reason at present why he should not fly back to the UK save for the fact that he would be uncomfortable whilst doing so. Most people would advise against flying for the first week after an epidural injection, or for three or four weeks after spinal surgery.”
[29]That letter was dated 6th December 2010. It was placed before the judge alongside Dr Ismail’s letter. The judge concluded that there was no evidence to suggest that Mr Umerji’s condition was such that he could not attend on that day. According to Mr Williamson’s report he was fit to travel. There was no address in Dubai at which Mr Umerji could be contacted. Accordingly, the judge felt that there was no alternative but to issue a warrant.[30]On 17th December 2010 Mr Allad failed to appear. His counsel acknowledged that they had not heard from him since the end of November, and there was no explanation to put before the court. Although the court was aware that Mr Allad was in Dubai, no address for him was known to the court. The judge decided to issue a warrant.[31]Those warrants were never executed, and, as stated, neither man subsequently appeared before the court.

Events between issue of warrants and start of trial

[32]As far as Allad is concerned, a number of applications were made to the court during this period raising matters of the type we described earlier.[33]As to Umerji, he was of, course, unrepresented. Thus in his absence no applications were made to the court. There was in fact a complete period of silence from him until just before the date fixed for trial. On 3rd May the judge received a letter from Umerji, bearing no address, stating that he would not be attending court that day. It stated his wish to be present at his trial and to participate fully in the trial process and to defend the allegations made against him. It claimed that he was prevented from attending court or indeed leaving Dubai “by matters outside my control including legal requirements imposed on me by the Dubai courts”.[34]It provided documentation to show that civil proceedings had been commenced against him in Dubai on 15th February 2011, which had resulted in a travel ban preventing him from leaving Dubai. It stated, with supporting documentation, that Umerji had attempted to leave Dubai by air on 11th April 2011, but was detained by Dubai police. He had to surrender his passport.[35]We interpose to say that the Crown in due course verified the existence of the civil proceedings and the travel ban, and accepted the evidence showing the confiscation at the airport of a passport belonging to Umerji.[36]Umerji’s letter continued by saying that he had recently identified new solicitors in London, Khan’s, whom he wished to instruct to represent him at trial. He sought an adjournment of the trial of at least three months until such time as he could attend court and be properly represented.[37]The following day the judge received a letter from Khan’s indicating that they were contacted in Dubai by Mr Umerji on 27th April. They were prepared to act as amicus curiae so as to inform the court of his current position. They referred to the travel ban, the civil proceedings in Dubai, and the detention at Dubai airport. They attached some copy documentation in support. They sought an adjournment of the proceedings.[38]The Crown’s case was that the Dubai civil proceedings were a contrivance. It called evidence before the judge seeking to show this.[39]After hearing that evidence the judge ruled that the trial should proceed in the absence of both men. As to Umerji, the judge noted that Umerji was aware of the trial date and recited the history leading to the issue of the warrant in December 2010. He noted the absence of any information as to Umerji’s whereabouts, save that he was in Dubai. By May 2011 Umerji was not saying that he was unfit to travel, but that he was now prevented from doing so by travel restrictions consequent upon the Dubai civil proceedings. He noted certain unsatisfactory features relating to that, including the absence of any information about the nature of the proceedings, the timescale, or how long a travel ban might last. He also noted particular issues relating to the passport said to have been seized, which he said raised many questions.[40]However, in relation to the Crown’s suggestion that the Dubai proceedings were a contrived means of avoiding a return to face these proceedings, the judge stated that he did not find it necessary to find whether they were contrived or not. This was notwithstanding the fact that the Crown had laid before him evidence showing that others involved in fraud offences in this country had not returned for their trial, citing a travel ban in Dubai. There was evidence to show that one of those individuals was connected to Umerji.[41]Having come to that conclusion, the judge said, however, that it was clear that Umerji had been fit to travel in December 2010 at a time when he knew that he was obliged to attend court. On any view he had made a decision not to attend court prior to the issue of any proceedings in Dubai. Accordingly, whether those proceedings were genuine or not, Umerji’s actions and conduct demonstrated that he did not intend to return. The judge concluded that in the circumstances Umerji had waived his right to attend trial, and said that he had no evidence to suggest that an adjournment would resolve the matter in the sense that Umerji might voluntarily return at some unspecified date in the future. The judge recognised that a decision to proceed in absence is to be made with “great caution and close regard to the overall fairness of the proceedings”.[42]It was a step which ought normally to be taken only if unavoidable. He as the judge had to exercise his discretion, having regard to all of the circumstances. Having considered certain other matters, the judge concluded that Umerji’s trial should proceed.[43]In Allad’s case the judge came to a similar conclusion. Allad’s case was somewhat different from Umerji’s. He had not been in contact with his solicitors since 30th November 2010. His precise whereabouts were unknown. He had failed to attend court in December 2010 after a clear warning that serious action would be taken if he failed to attend. He was aware of the trial date, and there was no explanation for his non-attendance and no reason for his absence. There was no basis for thinking that he would return to the UK in the foreseeable future.[44]After consideration of the type of issues mandated by the decision of the House of Lords in R v Jones (Anthony William) [2002] UKHL 5, the judge concluded that in his case too the trial should proceed in his absence. It was after this point that Allad’s legal representatives withdrew from the case.

Allad’s Grounds

[45]Mr Pickup QC, who had represented Allad below, began by challenging the judge’s decision to proceed to trial in the absence of Mr Allad. He took us to the checklist of factors set out by Rose LJ at paragraph 18 of Haywood & Others [2001] 2 Cr App R 11. Those factors were, with one exception, approved and adopted in Jones, which was the appeal from that case heard in the House of Lords.[46]Emphasising that it would be a rare and exceptional case to proceed with the trial when a defendant was unrepresented, Mr Pickup acknowledged that his client was to be taken to have deliberately and voluntarily absented himself. He submitted, correctly, that that in itself was not sufficient and raised the question of whether in reality his client should be taken to have waived the right to representation in circumstances where the email cited earlier had not specifically referred to that. He also drew attention to the judge’s obligation to ensure as fair a trial as circumstances permit, including the making of points on behalf of the absent defendant.[47]This aspect of his submissions was later developed into what was effectively a freestanding ground of appeal. Even if the judge’s initial decision as to proceeding in absence could not be faulted, Mr Pickup submitted that the judge had in fact, as matters turned out, failed to secure a fair trial for his client. We will return to that later.[48]Our attention was also drawn to R v Amrouchi [2007] EWCA Crim 3019 where the court gave particular consideration to the impact of the absence of a defendant upon the potential for a meaningful defence to be advanced.[49]Returning to the factors identified in Haywood, it was submitted that there was no compelling reason for the court to proceed in May 2011 and an adjournment should have been considered and implemented. Umerji had recently consulted solicitors and sought an adjournment. A third party had provided information to the prosecution suggesting Allad could be returned to the UK within a month. Since the prosecution could prove the existence of a conspiracy by the pleas of the co-accused, and since the case essentially depended upon documentation, there was no good reason to refuse an adjournment.[50]Mr Pickup was also critical of the absence of evidence that the Crown had taken steps, for example, to trace and extradite his client, submitting that they had a duty to take all reasonable steps to secure his attendance. It could not be said that an adjournment might not result in Mr Allad being found and caught.[51]He urged the court to consider the effects of proceeding in absence upon the extent to which Allad could present a defence based upon an absence of knowing participation in the conspiracy. He pointed out that since Mr Allad had last been in contact (30th November 2010), there had been judicial rulings on applications, and further materials had been served or disclosed. Thus, the judge should have taken account of the significant disadvantage at which Allad was placed.[52]Finally, he argued that there was a real risk of the jury simply coming to an improper conclusion and of being diverted by the absence of the appellants from paying proper heed to the material and issues in front of them. He noted that the transcript showed that the jury had delivered a verdict 15 minutes after retirement.[53]Mr Pickup’s next point was couched within his first ground, but in reality was a freestanding ground. His submission was, that having proceeded with the trial, the judge failed to take reasonable steps to ensure that there was a fair trial. In his oral submissions Mr Pickup focused on matters relating to the evidence of two witnesses in particular.[54]Firstly, the evidence of Mr Stone. His evidence was not advanced as that of an expert, but he gave an overview of how MTIC frauds operate. He had had very great experience of investigating such frauds in his working life. In the early part of his evidence he gave general evidence about the workings of such frauds, describing to the jury the different stages and participants, and their role in the transaction chain. Mr Pickup accepted that this was legitimate, but argued that the witness had overstepped the mark and given inadmissible opinion evidence, for example, when he described buffer traders as separating the missing trader from the exporter in order to disguise the involvement of the exporter.[55]In addition, Mr Pickup took us to what occurred after Mr Stone had concluded his evidence in chief.

The judge asked:

“Is it possible for somebody to be in one of these chains without realising that he is part of the fraud?”
Answer:
“Not in my view, no”
. Mr Stone then continued “Bearing in mind that the money has to go back from whence it came, so that when you pass the money on you have to know that its going to be passed onto somebody else that can be trusted to pass it back onto the third – another person that’s trusted, so it arrives back with the original financier.”

The judge followed this by asking:

“Might you become involved in that innocently?”
Answer: “No, that’s not my view”.[56]Mr Menary QC, for the Crown, followed up, asking:
“Someone involved in a fraud and who has to generate an invoice for an onward sale in a fraud, does that person, say an intermediary, literally or in truth have a free choice about who to sell onto?”
Answer:
“In these frauds they don’t. In a genuine transaction they’ve got a free choice on who to sell onto. In these transactions they don’t, they have to sell onto somebody who is part of the fraud.”
[57]Mr Pickup was highly critical of these questions. He submitted that they represented inadmissible opinion evidence which in effect answered the ultimate and sole question which the jury had to decide in the case of these appellants. It was the clearest evidence that it was not possible to be involved in a chain without being part of the fraud. The judge had wholly failed to protect the interests of the defendants; indeed he was responsible for improperly adducing the evidence we have referred to.[58]When the judge came to sum up Mr Stone’s evidence, he repeated the essence of the passages we have just recited uncritically and without comment or warning. This had been done when the sole issue before the jury was whether they could be sure that the individual appellants had knowingly participated in the fraud.[59]Next Mr Pickup turned to the evidence of Mr Saxon, a VAT compliance officer, who dealt with Eurosabre. He began by reminding us of the fact that Allad ceased to be a director of Eurosabre partway through the fraud, at the end of December 2005. The Crown had acknowledged that there was no evidence that Allad was involved in the fraud after his resignation as a director. His position was in contrast to that of Umerji, who had been active in Eurosabre throughout the period of the fraud and became a director in January 2006.[60]Mr Saxon gave evidence about the increase in Eurosabre’s turnover in the period between June 2005 and April 2006. This evidence was given in a way which demonstrated a very significant increase, but failed to bring out the point that much the greater part of the increase occurred under Umerji’s stewardship, rather than in the period during which Allad was involved. Similarly, evidence about the ability to scan IMEI numbers on the phones had only become available in February 2006, i.e. in the post Allad period, but Mr Saxon had failed to indicate that that was the case. This evidence enabled the Crown to show that the same phones were repeatedly imported and exported.[61]There were other features which provided evidence against Umerji, but not against Allad. Firstly, the commonality of the usage of IP addresses was only evidenced from February 2006 onwards. Secondly, a system of contra-trading, designed to conceal even further what was going on, only began in March 2006, and only after Umerji had been told by Mr Saxon that there were tax defaulters in the trading chains leading to Eurosabre. Allad had never been privy to such information. In terms of the profits derived, Umerji was shown to have received £34 million in profits, whereas Allad had received £5.3 million.[62]Mr Pickup pointed out from the transcripts that at no stage during the course of the evidence had the judge made any point or intervention seeking to differentiate between the positions of Allad and Umerji, which could be important on the issue of knowing participation.[63]When the judge came to sum up, he had again failed to protect Allad’s position in that he recited the points made through Mr Saxon without anywhere differentiating between the two appellants and in particular drawing attention to points potentially favourable to Allad. At one point in the summing-up, the judge had asked the jury a series of questions, dealing with both defendants together clearly designed to raise the issue of whether they were aware of what was going on. However, those questions were general in nature, did not differentiate between the appellants, and did not point to any evidence which might support the lack of awareness of either appellant, and Mr Allad in particular. This short general passage, contended Mr Pickup, was wholly inadequate to secure fairness, particularly in the light of the way in which the evidence of Messrs Stone and Saxon had been dealt with, both in evidence and in summing-up.[64]Under this argument as to fairness, Mr Pickup also raised a number of points which he recognised were of a subsidiary nature and which appear to us to be related to later grounds relating to disclosure. We do not think these matters materially add to the strength of this particular ground and do not propose to deal with them further.[65]Grounds two and three are a complaint that on 10th February 2011 when the judge was considering an application for disclosure with a view to challenging the admissibility of evidence in relation to FCIB, he refused to accept a proffer from Mr Pickup of a defence statement described at the time as a “three line defence statement” designed for the purposes of satisfying the necessary conditions for a defence application for disclosure pursuant to Section 8 CPIA. The argument is that the judge’s refusal to countenance this offer as constituting a defence statement prevented a disclosure request being made under Section 8 and thus prevented a meaningful application to exclude the FCIB evidence. The judge, it was said, had wrongly refused to countenance any such document and had unfairly hampered the ability of Allad to mount a disclosure enquiry on an important part of the case.[66]Ground four related to the judge’s decision as to the admissibility of documents relating to FCIB transactions pursuant to Section 117 of the Criminal Justice Act 2003. Those documents were an important part of the financial trail in the chains of transactions. This ground was not pursued.[67]Mr Pickup’s fifth and sixth grounds relate to exhibits. In particular the judge, it is contended, was wrong on 5th May 2011 to refuse an application to stay the trial for an abuse of process or non-compliance with the provisions of Section 9 of the Criminal Justice Act 1967. Section 9 provides:
“(1) In any criminal proceedings…a written statement by any person shall, if such of the conditions mentioned in the next following subsection as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person. (2) The said conditions are - … (c) before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; (3) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section, that is to say - … (c) if it refers to any other document as an exhibit, the copy served on any other party to the proceedings under paragraph (c) of the last foregoing subsection shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party on whom it is served to inspect that document or a copy thereof.”
[68]This matter comes about because the Crown, in serving its voluminous documentation, had by December 2010 only served documents as exhibits accompanying statements where they related to tax defaulters in the transaction chains. The defence applied for exhibits referred to in the witness statements pertaining to all persons in the chain. The Crown agreed to make copies of these documents available, although it asserted that they took the case no further. The judge directed service, and in accordance with the judge’s order, some 6,000 pages of exhibits were served on 16th December 2010.[69]In March 2011 the defence asserted that there were large numbers of other documents referred to in the witness statements as exhibits which had not been served. The Crown’s position was that although these documents had been referred to by the maker of the witness statement as exhibits, they were not truly exhibits in the sense that they contained materials being relied on by the Crown in support of its case. They represented documents which officers had seized and simply referred to as exhibits in the course of their witness statements. Other officers had not referred to similar documents as exhibits, but had merely given them reference numbers. According to the Crown the process of describing the contested documents as exhibits had no real meaning since the witness would have had no idea as to whether or not what had been seized was truly material to any case which might be mounted.[70]The problem from the Crown’s point of view was that in preparing the witness statements for service on the defence, nobody in the prosecuting team had followed what should be the correct practice of lining out those parts of witness statements which are not intended to be relied on at trial. If that process had been adopted, this issue would never have arisen.[71]By March 2011 the Crown had in fact already considered the substantial additional materials which we are told amounted to fifty boxes of documents. It had in late 2010 served a disclosure schedule referring to them and indicating that they were to be regarded as unused material. In March 2011 when the defence pursued the issue, the Crown indicated that it did not intend to serve or copy these additional documents, but would provide to the defence the facility to inspect. We are told that up to 3rd May 2011 Allad’s solicitors visited the premises where the documents were held on some seven occasions, but, we are told they had difficulties in copying documents because of the cost involved.[72]Mr Pickup alleged that the judge was wrong to refuse the application for a stay and that he had not followed the mandatory requirements of Section 9. He had confused the Crown’s duty of disclosure under the CPIA with the Section 9 requirement for service of the documents described in the witness statements as exhibits. Had there been service, there was potential for some of the documents to have benefited the defence. One example was given of spreadsheets, which might have been used to demonstrate that there had been due diligence carried out by Eurosabre into those with whom they had dealings.

Umerji’s Grounds

[73]Mr Clegg QC, who did not appear below, raised two matters. The first concerns the judge’s decision to proceed in the absence of Umerji; the second relates to the judge’s response to a query from the jury concerning Umerji’s absence from the trial.[74]Before the judge heard the evidence called by the Crown with a view to demonstrating that the Dubai civil proceedings were a contrivance, the judge had heard an ex parte PII application by the Crown relating to that. Mr Clegg first urged that there should never have been such a PII hearing. There had been disclosure made openly on 4th May that the Crown had received information suggesting that the Dubai civil proceedings were being used by Umerji as a sham or a smokescreen to justify his absence from the trial. Mr Clegg argued that in the circumstances there was no need for any PII hearing because that information was adverse to Umerji and could not therefore undermine the Crown’s case or support his.[75]The mischief therefore was that the judge had heard information relating to the crucial issue of absence from trial privately when he was shortly to have to make a ruling on that very issue. The judge therefore should never have held the PII hearing, and having done so, should have recused himself lest he be unconsciously biased or lest, on an objective basis, the appearance of bias would be given to others.[76]In support of this he drew attention to the observations of Lord Judge CJ in R v Twomey & Others (2) [2011] 1 Cr App R 29 at paragraph 57 where his Lordship approved the decision of the trial judge not to review PII material relating to jury tampering in a case where the trial judge was to be the primary judge of fact in a trial conducted without a jury pursuant to Section 44 of the Criminal Justice Act 2003.[77]In addition, he submitted that the judge was wrong to hold the PII hearing on 5th May 2011: he should have been prepared to adjourn the matter until 6th May as requested by the solicitors who had contacted the court on behalf of Umerji, and who should have had the opportunity to make representations. Not to adjourn was unreasonable.[78]The consequence of this, urged Mr Clegg, was either to render the trial which took place unfair per se, alternatively it had an adverse effect upon the fairness of the judge’s ruling to proceed in the absence of Umerji.[79]Turning then to the issue of absence, Mr Clegg submitted that the appellant had engaged fully with these proceedings from the time when they were begun early in 2009 up to the point of his non-appearance in December 2010. He contended that the basis upon which the judge concluded that Umerji was deliberately absenting himself from court on 10th December 2010 was flawed. In particular, Dr Ismail had said that Umerji was unfit, and Mr Williamson had neither examined Umerji, nor had he contacted Dr Ismail to discuss the case. Mr Williamson had not given evidence in court. There had been no enquiry into Umerji’s current condition and Umerji had written to the judge, expressing dismay at the loss of his legal team, and indicating to the judge that when his health was better he would come to the UK and instruct fresh lawyers.[80]This challenge to what happened in December was significant because when the judge made his decision to proceed with the trial in May, his findings in this respect informed that decision, particularly in the light of his failure to find that the travel ban resulting from the Dubai proceedings was a ruse or device.[81]Mr Clegg then made the submission that the judge should not have heard or admitted evidence tendered by the Crown on 11th May 2011 calling into question the bona fides of the Dubai proceedings explanation for absence. Having heard it, as the primary decision-maker on the issue of absence, he should have recused himself. The judge was, he urged, in reality in the same position as a jury which is discharged after having heard significant inadmissible evidence.[82]In the light of the judge’s decision to make no finding that the Dubai proceedings were a contrivance, the judge’s conclusion underlying his decision to proceed in the absence of the appellant on the basis of a settled intention formed prior to the commencement of the Dubai proceedings not to return to stand trial could not properly be sustained. There was insufficient admissible evidence to support the conclusion that Umerji would not return to take his trial.

The judge had failed to address the issue of Umerji’s attempt to return on the 11th April:

[83]he had certainly not said that that was a contrivance simply to add colour to his reasons for not returning. If Umerji had been prevented by the authorities from leaving Dubai, that would, Mr Clegg conceded, not necessarily be conclusive. It would simply go to weight on the issue of voluntariness. The essential test for the judge to be decided as at 12th May 2011, the date of the judge’s ruling, was whether Umerji’s absence was voluntary or not.[84]Mr Clegg accepted that if the appellant had no intention of returning to the UK for trial, for example in December 2010, then subject to change of mind, a Dubai travel ban would not necessarily be of any effect. In other words, in those circumstances it would not amount to a “get out of jail card”.[85]Mr Clegg’s second ground is a much shorter one. Mr Clegg abandoned the original grounds which complained of the judge’s directions to the jury on absence in the summing-up. He now concedes that that direction was unimpeachable, as were directions the judge gave at the start of the trial as to how the jury should view the appellant’s absence. However, he maintained a complaint made in the original grounds about something that happened during the trial.[86]Part way through the trial the jury asked a question about whether the appellants knew about the trial proceeding. The judge answered the question by saying that both were fully aware of the allegations they faced. He pointed out that each had been interviewed, during the course of which the allegations were outlined to them and their legal advisers. He also said that copies of the prosecution witness statements and documentary evidence had been supplied to them. He continued:
“In addition, for a substantial period of time following their initial arrest, they had the benefit of being represented by solicitors and barristers; and as you were told when the case started, during the course of this trial Mr Allad’s interests have been protected by the presence of Mr Broadfield, who is sitting over there.”
Mr Broadfield was a non-participating note-taker present at the trial.

The judge went on:

“In relation to this trial I am satisfied that both Mr Umerji…and Mr Allad are aware that they were due to stand trial here before you, but it is very important that you do not speculate as to any reasons there may be for their absence.”
[88]He said that in due course when summing-up he would give the jury specific directions as to how they should approach the fact that the appellants were not present.[89]Mr Clegg makes two complaints about the latter part of the judge’s remarks. He says that the reference to legal representation for a substantial period after arrest does not tell the whole story. In particular, it did not explain that it was not Mr Umerji’s fault that he no longer had legal representation. It left the unfair impression that the appellant’s lack of representation was his choice, his co-defendant who was also absent, having Mr Broadfield present.[90]Secondly, the judge’s comment that he was satisfied that Mr Umerji was aware that he was due to stand trial was a prohibited comment. The Crown Court Bench Book states:
“If the trial is to proceed in the defendant’s absence, that fact should be explained to the jury, as soon as possible, in appropriate terms. When the judge has ruled that the defendant has voluntarily absented himself, he will not inform the jury of that fact and will need to warn the jury against: (1) Speculating upon the reason for the defendant’s absence; (2) Treating the defendant’s absence as any support for the prosecution case.”
[91]The judge’s comment was one he should not have made, and in addition was misleading in the light of his own finding that the appellant was subject of a travel ban from the Dubai court in proceedings which he had concluded were not contrived. In the circumstances there was the obvious possibility of prejudice to the appellant.[92]Having heard Mr Pickup’s submissions for Allad, Mr Clegg applied to us, without opposition from the Crown, to amend Umerji’s grounds by adopting Mr Pickup’s submissions about the judge’s failure to secure a fair trial for his client, and also in relation to the grounds concerning Section 9 of the Criminal Justice Act 1967.

The Crown’s Submissions

[93]We do not intend to recite the Crown’s submissions in the same detail as which we have set out those for the appellants. We can deal with them in a more general way and can reflect them where necessary in our own conclusions.[94]As to trial in absence, it was submitted that the judge’s decision in each case was correct. He had been aware of, considered and applied the Haywood checklist to each appellant separately. He had properly concluded that it was fair to proceed to absence in each case, and that each appellant could receive a fair trial.[95]In Umerji’s case the judge had been entitled to conclude that Umerji had a settled intention not to attend the trial prior to the Dubai travel ban, and in that context was entitled to have regard to all of Umerji’s conduct until May 2011. The judge’s failure to find that the travel ban was contrived did not undermine his finding as to Umerji’s settled position prior to that date, nor did the episode of the journey to the airport and seizure of the passport on 11th April 2011.[96]On the separate point about the PII application and the putting of prejudicial information before the judge, there was no procedural impropriety, and the judge had not used the information as a basis for making any finding adverse to Mr Umerji.[97]In each case it was contented that in reality any adjournment would be for an indeterminate period because the position of the appellants was entirely uncertain. There would have been no purpose in an adjournment.[98]In Allad’s case the judge had properly considered the material factors before coming to a conclusion to proceed.[99]Dealing next with Allad’s complaint of an unfair trial, Mr Unsworth submitted that Mr Stone had been entitled to give the jury assistance as to how this type of fraud was perpetrated. In relation to his evidence to the judge and then to Mr Menary, it was acknowledged that Mr Stone had slipped into impermissible opinion evidence, but Mr Unsworth drew our attention to a passage in the summing-up where the judge had said that Mr Stone had not been involved in the investigation of this case so that the jury should look at the specific evidence of other witnesses who had been.[100]Turning to the evidence of Mr Saxon, he argued that since the judge had mentioned that Allad had resigned his directorship in late December 2010, his position must have been clear to the jury. However, he acknowledged that the summing-up did not point to the separate position of Allad. He relied on the fact that the judge had, prior to the trial starting, shown that he was mindful of the need to be fair to the appellants and submitted that the summing-up could be regarded as objective and neutral. He relied on the passage already referred to where the judge invited the jury to consider whether the appellants were aware of what was going on.[101]As to Allad’s grounds two and three, it was submitted that Allad had made a fully informed decision not to serve a defence statement and that Mr Pickup’s desire to serve “a three line defence statement” could not comply with Section 6(A) of the CPIA. The judge was entitled to take the view that Mr Pickup’s offer would not satisfy the Act. Such a brief statement would not go beyond what the Crown was doing anyway by way of review in accordance with its CPIA obligations. The Crown had been fully aware of the issue to which this point went, namely the admissibility of FCIB material, and had had a dedicated team, including Queen’s Counsel, separate from the trial team dealing with disclosure.[102]As to the files made available in March 2011, the Crown had properly complied with its disclosure obligations in December 2010 as ordered by the judge. However, as a result of defence pressure in March 2011, although not strictly necessary under its disclosure obligations, the Crown decided to make the additional material available for inspection. The Crown had previously considered that material and was not disclosing it as undermining the Crown case or assisting the defence, merely out of pragmatism. It was speculative to say that it might have assisted the defence.[103]Turning to grounds five and six, it was conceded that there had been a failure to comply with Part 27 of the Criminal Procedure Rules in failing to line out of the witness statements those parts which were not to be relied on. However, all that material had been reviewed. It did not need to be disclosed and no prejudice had been caused. No material had been put before the jury which had not been provided to the defence.[104]The appellants’ grounds of appeal related to the judge’s ruling as to whether there had been any unfairness. The judge had properly ruled that there was none since the defence had had served upon it all the material upon which the Crown proposed to rely. Section 9 should be read as relating to the point in time when the Crown put the evidence before the court at the trial. By that stage the Crown had complied with its statutory obligations.[105]Finally, in relation to Mr Umerji’s second ground, namely the judge’s response to the jury’s question, it was submitted that there was nothing objectionable in what the judge had said.

Discussion

[106]We will deal first with the decision as to trial in absence. In Allad’s case we are satisfied that the judge was entitled to conclude that Allad had waived his right to attendance and representation at his trial. The judge had to assess the position as at the 11th May 2011. He was entitled to have regard to Allad’s failure to contact his legal team after the end of November 2010, particularly when they had made significant attempts to contact him by email and other means without success. Allad had failed to attend court when he was due to be arraigned without excuse or explanation. Thereafter, he had made no contact with the court whatsoever to explain or justify his absence.[107]The judge was fully aware of the need to proceed with caution in such circumstances, and considered the question of adjournment. Allad’s prolonged withdrawal from the court proceedings and from previous channels of communication entitled the judge to conclude that no purpose would be served by an adjournment in circumstances where there were no known means of contact with Mr Allad. Whilst there are grounds for criticism of the Crown on the basis that it provided little evidence to the court to show significant efforts on its part to bring Mr Allad before the court, that was simply a factor to be considered as part of the assessment of the position as a whole. We are not persuaded that the judge was in error.[108]Plainly there would be potential disadvantages to a defendant who did not attend trial in the presentation of his defence. The judge was fully aware of that. Allad’s absence was of his own choice. He had, although legally represented, chosen to make no comment in interviews. He had clearly made a conscious decision not to serve a defence statement. He had not put forward at any stage a positive case, but up to the time of his disappearance had chosen to proceed by a series of motions to the court attacking the architecture of the Crown case.[109]The judge was alive to the fact that the essential issue in his case would be his knowing participation in the proven conspiracy. Beyond that no positive case had been advanced. Indeed in submissions to the judge Mr Pickup had gone as far as to assert that the judge did not know Mr Allad’s defence. That was entirely due to the way in which Allad had proceeded thus far.[110]Whilst the question of potential disadvantage to a defendant is a material consideration, the circumstances in which a defendant has contributed to that by his conduct is itself a relevant factor. At the time the judge made his decision Mr Allad was still represented, albeit he knew that further consideration was to be given to the position of counsel.[111]Insofar as further evidence had been served since Allad’s disappearance, he had deliberately made himself unavailable to give instructions about such material which in any event did not materially alter the case as known against Allad prior to his disappearance. The new evidence was largely transactional in nature and the key additional materials had in fact been served on the day before Allad should have attended court for his arraignment.[112]In the circumstances we conclude that at the time of his decision the judge was justified in finding that Allad knew of and was indifferent to the consequences of being tried in his absence with or without legal representation. His overall conclusion was that notwithstanding some disadvantage, the court could deal appropriately with the matter and could properly warn the jury against the risk of reaching an improper conclusion drawn from the absence of a defendant.[113]In the circumstances we are not persuaded that in Allad’s case the judge’s decision can be impugned, the matter having been fully argued before him, all relevant considerations raised, and the judge having in mind the key authority on the point.[114]We turn next to Umerji’s absence. His position was somewhat different in that there was no concession of voluntary absence, and reliance was placed upon the Dubai travel ban, together with the seizure of Umerji’s passport at the airport in April 2011.[115]Before we deal with the judge’s actual decision, we need to deal with the procedural criticisms raised by Mr Clegg. We see nothing objectionable arising from the PII hearing on 5th May 2011, shortly before the argument as to whether the trial should proceed. The purpose of that PII hearing was for the judge to make a decision as to whether the Crown could protect the source of information disclosed openly that Umerji’s reliance on the Dubai travel ban was a contrivance. The judge received no information at the PII hearing adverse to Umerji which had not been disclosed in open court.[116]Consequently, the objection that the judge made his decision in relation to proceeding in absence on the basis of material adverse to Umerji disclosed in a private hearing is not sustainable. Moreover, it is clear that the judge’s decision to proceed with the trial was not in fact based on the adverse information at all. Firstly, the judge specifically stated that that material which led to the PII application as to source took the matter no further, and played no part in his decision. Secondly, the judge specifically stated that he did not find it necessary to find whether the proceedings involving Mr Umerji in Dubai were contrived or not. He made his decision as to trial in absence on a different basis.[117]Accordingly, there were no grounds for the judge to recuse himself; there was no procedural irregularity; and no fair-minded and informed observer would consider that there was a real danger of bias. We are also unimpressed by the assertion of the possibility of unconscious bias on the part of the judge.[118]Criticism was also made of the fact that the judge proceeded to the PII hearing on 5th May rather than acceding to the request of the Khan Partnership by letter to hold the hearing on the following day. Whilst we cannot discern any particular reason for not acceding to that request, it seems to us that there was nothing useful that could have been advanced or which would have made any material difference to the outcome since the judge held that the content of the adverse disclosed material was not admissible in evidence.[119]Mr Clegg was also critical of the judge having heard evidence from prosecution witnesses in the course of the hearing on 11th May 2011 to decide whether the trial should proceed in absence. That evidence was called by the Crown with a view to seeking to persuade the judge that the Dubai court proceedings and ensuing travel ban were a contrivance. Evidence was adduced to show a similar pattern of behaviour involving others accused of fraud in this country, including one example of an individual with links to Umerji, and through whom Umerji had been put in contact with Khan’s.[120]Mr Clegg said that there was no admissible basis for this evidence, that the judge had been wrongly exposed to it, and should have recused himself. We reject those submissions. We consider that the evidence was properly admissible on the issue of whether the Dubai court proceedings were a sham. There was no basis for the judge to recuse himself. Even had the evidence been inadmissible, Mr Clegg conceded that this was a matter of fact and degree. A professional judge can be expected to distinguish between that which is admissible and inadmissible, and to proceed accordingly. In our judgment, there is nothing in this point and, as we have pointed out, ultimately the judge made no finding adverse to this appellant in relation to the Dubai proceedings.[121]We then turn to the substance of the trial in absence point. We have carefully considered the materials available to the judge on 10th December 2010. There was nothing in the medical evidence to show that Mr Umerji was unfit to attend court as at that date. Moreover, his own letter to the court of 8th December gave an address at which he was not living, and did not in fact state that he was unfit to attend on 10th December. It claimed that Mr Umerji’s health was deteriorating because of the stress of the prosecution as opposed to the sciatica and slipped disc problems referred to in the medical reports considered by the judge, but provided no medical evidence in support. Significantly the letter spoke of intending to take urgent steps to return to the UK in order to instruct new legal representatives.[122]We see no proper basis for criticism of the judge’s finding in December 2010 that Mr Umerji’s absence was deliberate.[123]By May 2011 when the judge had to decide whether to proceed to trial, there had been no contact at all from Mr Umerji until the day when the trial had been due to start. That communication provided no address or other means of contacting Mr Umerji, plainly a deliberate ploy on his part. He had not, as he had previously indicated, taken urgent steps to instruct solicitors or prepare for trial, his first contact with Khan’s being at the end of April 2011, less than a week prior to the fixed trial date.[124]Although the Dubai court proceedings and travel ban dated from 15th February, there had been until the letter of 2nd May, no notification of this to the court. Nor was any information provided as to the nature of the proceedings or the length of the ban.[125]We were invited to approach the matter on the basis that if the appellant had by 15th February already formed a settled intention not to attend and take his trial, then any ensuing travel ban could not avail him. However, in the light of the judge’s failure to make a positive finding as to whether the Dubai court proceedings were contrived or not, we were urged that the judge was wrong to find against the appellant.[126]Particular reliance was made on the appellant’s visit to Dubai airport on 11th April when his passport was seized. This was relied on as showing no firm and continuing intention not to return. In this respect, although the judge noted that there were significant unanswered questions and concerns, he made no finding. Instead he based his decision on a clear finding that the appellant had prior to 15th February 2011 made a firm decision not to return to the UK, whether or not those proceedings were genuine, and had demonstrated by actions and conduct that he did not intend to return.[127]We have been taken to the material before the judge in relation to the trip to the airport. That which was provided to him was equivocal. In our judgment, it falls short of anything showing that Umerji was at the airport intending to travel to the UK for the purpose of instructing lawyers and/or taking his trial.[128]Having considered the argument and the materials before the judge, we conclude that the judge was entitled to find that as at May 2011, this appellant had deliberately absented himself from the proceedings notwithstanding the Dubai travel ban.[129]Mr Clegg advanced no discrete arguments based on Jones. However, we record that the judge applied the Jones considerations to Umerji’s case, as he had in the case of Allad. In our judgment, he took account of the relevant principles and considerations, and came to a conclusion to which he was entitled to come.[130]It is convenient at this point to deal with Umerji’s second ground relating to the judge’s handling of the jury question. We have cited the relevant passages earlier.[131]As to criticism of the judge’s reference to the appellants having previously had the benefit of legal representation, we are not persuaded that that was objectionable. To have gone on to say that it was not Mr Umerji’s fault that he no longer had legal representation would, in our view, have been misleading. The sequence of events between December 2010 and Mr Umerji’s letter received on the day fixed for trial revealing very recent contact with solicitors who were not on the record and in the context of the judge’s ruling that Umerji’s absence was deliberate, would have painted a rather different picture.[132]Mr Clegg’s principal focus however was on the judge’s comment that he was satisfied that both men were aware that they were due to stand trial. That did not in fact contravene the Crown Court Bench Book’s indication that the judge should not inform the jury that a defendant has voluntarily absented himself. It was an accurate and necessary answer to the question posed by the jury, to which good case management required a response. The judge’s statement was accompanied by a warning that it was very important that the jury did not speculate as to any reasons there might be for the appellants’ absence from the trial. In addition, the judge said he would return to the point in summing-up.[133]It is conceded that in summing-up he gave the jury appropriate and specific directions as to how to approach the absence of the appellants. It is also conceded that he had given appropriate directions at the outset of the trial. In those circumstances we are not persuaded that there is any arguable point arising from the judge’s answer to the jury question.[134]We next turn to the issue of the fairness of the proceedings; a point argued in full on behalf of Allad, and adopted on behalf of Umerji, with our leave. Insofar as Mr Stone gave evidence as to the mechanics of an MTIC fraud, we consider that he was entitled to do so. The contrary is not suggested as plainly the jury would need assistance on the point. Having reviewed the transcript, we are not persuaded that Mr Stone, in dealing with this aspect of the matter, overstepped the mark and trespassed into the area of forbidden opinion evidence. No criticism therefore in this respect can be made of the judge’s failure to intervene.[135]We are, however, much concerned by what transpired towards the end of Mr Stone’s evidence. It seems to us that the judge, and then prosecuting counsel, invited Mr Stone to enter forbidden territory. He had not been put forward as an expert; nor was he ever treated as such, for example by way of any direction in the summing-up. He was invited to and did opine on the single issue presented to the jury in the case of these appellants, namely whether they had knowingly participated in the fraud.[136]He gave clear answers positively adverse to the defence, and the effect of what he said was repeated in the summing-up without qualification or warning. The questions posed and the impermissible answers given went to the very heart of the case. In our judgment, Mr Stone had moved from the primary facts of the case, into prohibited, secondary inference. We did not understand Mr Unsworth to demur from this conclusion.[137]Mr Unsworth sought to persuade us that a short passage in the summing-up explaining that Mr Stone’s evidence was intended to give an overview of aspects common to frauds of this type, coupled with the observation that he was not involved in the investigation of this case, so that the jury would need to consider the evidence of other witnesses in deciding what was proved to have happened was sufficient to cure any mischief.[138]We are unpersuaded that that passage has that effect. Firstly, Mr Stone’s comments were presented in a way which was as applicable to this case as any other fraud. Secondly, the judge shortly afterwards, told the jury of Stone’s evidence that he did not believe a trader could be innocently caught up in this sort of contrived chain. The effect of this episode was unfairly to undermine the single strand of defence available to these appellants.[139]In Allad’s case the position is compounded by what occurred when Mr Saxon gave evidence. It is clear that Mr Saxon in making a series of points, failed to differentiate between the positions of the two appellants in matters which were relevant to the issue of knowing participation. Neither the judge nor prosecuting counsel took any step to bring out the relevant features. Mr Pickup accurately identified them in the course of his argument, and we find that nowhere in the summing-up did the judge redress the balance. Instead he summarised Mr Saxon’s evidence as presented.[140]The only specific matter to which the Crown could point was that the judge had indeed told the jury that Mr Allad had resigned as a director on 1st January 2006. However, he failed to tie this point to any of the specific matters dealt with by Mr Saxon, so that what were legitimate defence points to be made on behalf of Allad, were never made or brought into focus. At no stage did the judge put forward what were tenable points to be made in favour of Mr Allad. Instead the approach appears to have been to treat both appellants as indistinguishable in the summing-up.[141]This approach was replicated in the sentencing process when the Crown in terms invited the judge to treat both appellants in the same way, and when the judge sentenced them both to the same sentence. There were, in our judgment, valid points to be made as to Allad’s involvement in the fraud which should have resulted in a lesser sentence for him.[142]Although at the outset of the summing-up the judge had told the jury that they should consider each defendant’s case separately when opportunity arose, as it did in relation to Mr Saxon’s evidence, the judge did not provide the jury with the wherewithall to do so.[143]He did at one point pose a series of questions of which the first three are:
“Could either of them, both of them, have been trading in the way about which you have heard but unaware of the wider conspiracy? Could they have been engaged in legitimate business without involvement at all in any fraud? Might they have been misled or used by someone else?”
Could they have been engaged in legitimate business without involvement at all in any fraud? Might they have been misled or used by someone else?”

Could they have been engaged in legitimate business without involvement at all in any fraud?

[144]In that passage there are further questions in similar vein couched in those general terms. That was, in our judgment, insufficient to deal with the situation. The effect of this was that the judge was unable to redeem his intention to give Mr Allad a fair trial.[145]Paragraph 18(6) in Haywood is in these terms:
“If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits…”
[146]We consider that in Allad’s case this important principle was not satisfied by reason of the matters identified above.[147]Mr Clegg, for Umerji, allied himself with those submissions. In his case, however, the points available to Allad relating to Mr Saxon’s evidence, could not be made. On any view Umerji was involved with Eurosabre throughout the period of the fraud, unlike Allad. In essence therefore Umerji’s argument on this ground must be confined to the impermissible answers of Mr Stone, repeated in the summing-up.[148]The evidence against these appellants was undoubtedly very compelling. That is particularly so in Umerji’s case because he did not have the benefit of having departed from the fraud before it escalated in scale, and before a time when evidence of certain significant aspects of it was available. However, the Crown, rightly in our view, has not sought to rely on the strength of the case against either appellant. That is not a factor of relevance which could overcome the fact that a trial was unfair.[149]The question therefore for us is whether what occurred in relation to Mr Stone’s evidence rendered Umerji’s trial unfair. We have come to the conclusion that it did. As we have already pointed out, the evidence adduced was not properly admissible. It went to the very heart of the only live issue before the jury concerning Umerji, and it resolved that issue, unchallenged and unqualified, adversely to him. Additionally, insofar as the jury were allowed to consider the case against Allad on an unfair basis, there would be an added risk of that impacting upon their approach to Umerji’s case.[150]We note that no more than 15 minutes elapsed between the jury’s retirement and its delivery of verdicts in a trial which had lasted between three and four weeks. Whilst it is a matter for the jury as to how it goes about its work, and no enquiry can be made into the processes of the jury room, we are left with the clear feeling that the brevity of the jury’s retirement may well owe something to the failure we have identified, including the unfair undermining of the only live issue before the jury, through Mr Stone’s evidence. In our judgment, therefore, the judge failed to secure a fair trial in Umerji’s case as well.[151]Many may consider these appellants fortunate. It is clear from the judge’s rulings that they had failed to advance any positive case at interview or by case summary, and had deliberately absented themselves from their trial. They could have no legitimate complaint about the trial proceeding in their absence or about the detriments which flow from that. However, it is crystal clear that even if a judge has made the necessary careful and anxious determination correctly to go ahead with the trial, his obligation, together with that of the Crown, is to secure as fair a trial as possible for the absent defendants. Regrettably that did not occur in this case. Whilst the appellants undoubtedly contributed materially to the situation by their actions, that cannot absolve the court of its duties.[152]In the light of those conclusions it is not necessary for us to deal in detail with Mr Pickup’s remaining grounds on behalf of Allad. Grounds two and three are related to the admissibility of documentary evidence from FCIB. The judge’s ruling as to the admissibility of such evidence was the subject matter of ground four, which has been abandoned. These grounds relate to a step in the proceedings prior to that abandoned point. In our judgment, the judge was entitled to regard the proposed document as a device to trigger a Section 8 CPIA application. Mr Pickup had made plain that the so-called defence statement would say no more than:
“I am not guilty of the offences charged. I put the prosecution to strict proof. I challenge the admissibility of the FCIB evidence. I apply for disclosure. Please see the skeleton argument served in support.”
[153]In our view the judge was entitled to regard this as a circumvention of the necessary requirements of Section 6A in an attempt to trigger a Section 8 application. In any event the court had seen the skeleton argument referred to, as had the Crown. All this was in the context of the appellant having made a positive decision prior to his disappearance not to put in a defence statement, and not having given any instructions to his legal advisers since the end of November 2010. The making of a defence statement is not a mere formality, but can later have consequences for a defendant in the trial. We regard those as relevant factors to the judge’s approach to this issue.[154]There was a skeleton argument before the court relating to the disclosure issue to be raised, and the judge satisfied himself that the Crown had complied with its obligations under CPIA in relation to it. In all the circumstances we do not consider that any properly arguable point arises and we refuse leave on these grounds.[155]In relation to grounds five and six, we remind ourselves that the decision for the judge to which this matter relates was whether to grant a stay for abuse of process on the grounds of non-compliance with Section 9 of the Criminal Justice Act 1967 based on an alleged failure by the Crown to serve all documents referred to as exhibits in witness statements. The judge held on 5th May 2011 that the Crown had not failed to supply material upon which it relied to support its case, nor was he satisfied that the Crown had failed in relation to its duties under CPIA. There was no evidence of bad faith or manipulation of the court process, and the defence had failed in its submission that on these grounds a fair trial was not possible and that the proceedings should be stayed.[156]As we have observed, the Crown had brought about this situation by its failure to mark its witness statements in a way which indicated that only part of the statement was to be relied on. It is, however, right to emphasise that these grounds are not advanced on the basis that the evidence adduced at trial was inadmissible by reason of non-compliance with Section 9. No material was put forward capable of sustaining such an argument. The application instead is premised on the argument that there should have been a stay.[157]The judge has been criticised for his ruling in which he adopted what he called a common sense approach and, rather than construing Section 9 in detail, proceeded by a more pragmatic method of analysis. His approach was to have regard to the fact that seizing officers who referred to documents variously as exhibits or by other description should not be taken to bind the Crown in what were to be considered as exhibits for the purposes of a trial. The Crown had indicated and served those documentary exhibits upon which it proposed to rely in presenting its case, albeit it had not deleted references to other documents in the witness statements. Insofar as those other documents were concerned, the Crown had a continuing obligation of review pursuant to the CPIA and the judge was satisfied that the Crown had discharged its obligations.[158]In those circumstances there was no unfairness caused or improper manipulation of the process. We understand why the judge took such an approach in the context of an application for a stay on the grounds of abuse of process where the focus of the court will be on the fairness of what has occurred. Had the judge focused more closely on the requirements of Section 9 as Mr Pickup submits he should, we are not persuaded that he would have come to any different conclusion.[159]Section 9 is a provision which lays down the conditions for enabling a written statement to be admitted in evidence to the same extent as oral evidence would be. The requirement to serve or make available for inspection any document referred to as an exhibit arises in relation to “any written statement tendered in evidence”. In our judgment, the language of the section is consistent with the tendering in evidence occurring at the hearing before the court when the evidence is to be adduced. That stage had in fact not been reached at the point when the judge was invited to stay the proceedings. By then the Crown had served all the statements and documents upon which it was to rely at trial. This had been done in December 2010. The remaining documents had been itemised in a schedule of unused material supplied to the defence in December 2010 and thus disclosed in that way. The Crown then had second thoughts in relation to those documents, and in March 2011 made them available for inspection for pragmatic reasons.[160]It would seem to us, therefore, that by the date of the hearing, the Crown had complied with its obligation under Section 9, not by serving the documents referred to as exhibits (upon which it did not intend to rely), but rather by enabling inspection, thus satisfying the alternative limb of Section 9(3)(c). Accordingly, we are not persuaded that had the judge approached his decision by reference to Section 9 he would have reached any different conclusion than that which he did.[161]Mr Pickup’s ancillary point was that the material made available in March 2011 might have raised points which could have been made on behalf of the absent Mr Allad as undermining the Crown case or assisting his defence. This, in our view, is far too speculative an approach. We are not persuaded that the judge’s ruling in respect of these grounds in refusing a stay was arguably in error. We therefore refuse leave on these two grounds.

Conclusion

[162]In the light of our assessment set out above that in the cases of both appellants the judge failed to ensure a fair trial as far as was reasonably practicable, we quash the convictions recorded against these appellants on each of the two counts. We invite written submissions as to retrial. We require confirmation that each legal team appearing before us has the means of communicating with their client.[163]As a final word, the length of this judgment is to be regretted. However, it is the product of a full three day hearing in which matters of detail in a complex case were closely argued. We record our gratitude to the advocates and those assisting them for the careful and efficient preparation of this appeal.

Order

[1]The appeals against conviction are allowed in each case.[2]The convictions of Allad and Umerji on Counts 1 and 2 are quashed.[3]Both appellants are to be re-tried on a fresh indictment containing Counts 1 and 2.[4]The fresh indictment is to be served within 28 days upon the solicitors acting for each appellant in accordance with Part 4 of the Criminal Procedure Rules 2013 together with notice of the place, time and date for re-arraignment of the appellants on the fresh indictment.[5]Re-arraignment of both appellants is to take place within 2 months.[6]The venue for retrial is to be determined by a Presiding Judge for the Northern Circuit; his direction to be without prejudice to any subsequent application for a change of venue as may be made to the Circuit Judge at the re-arraignment hearing. Any such application to be made in writing and served upon the Crown Prosecution Service and the Crown Court at least 7 days prior to the date fixed for re-arraignment.[7]The appellant Umerji’s application for a Defendant’s Costs Order is refused.[8]It is noted that both appellants are unlawfully at large and that in each case a Bench Warrant remains outstanding. 18th March 2014

Cited in 1 later judgment