West & Anor, R v [2016] EWCA Crim 742

Case No 201500057 B5& 201500166 B5[2016] EWCA Crim 742
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
His Honour Judge Beddoe
T 20130554
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 June 2016
Before
LORD JUSTICE BEANMR JUSTICE SWEENEYHIS HONOUR JUDGE GRIFFITH-JONES(sitting as a Judge of the CACD)
Between
JAMES WHALEApplicantsGARY WESTApplicantTHE CROWNRespondent
Rupert Pardoe and Victoria Gainza for WhaleHarry Bentley for WestTimothy Cray, Simon Ray and Adam Payter (instructed by the Serious Fraud Office) for CrownHearing Hearing date: 17 March 2016
Judgment

Introduction

[1]On 5 December 2014, at the conclusion of a two month trial before His Honour Judge Beddoe and a jury in the Southwark Crown Court, James Whale (now aged 41) and Gary West (now aged 54) were convicted of conspiracy to commit fraud by false representation (Count 1) and fraudulent trading (Count 2). West was also convicted of an offence of conspiracy to furnish false information (Count 3) and two offences of bribery (Counts 5 and 7).[2]On 9 December 2014 Whale was sentenced to concurrent terms of 9 years’ imprisonment on Counts 1 and 2, disqualified from being a company director for 15 years, and made the subject of a Serious Crime Prevention Order for 5 years starting from his release. West was sentenced to concurrent terms of 9 years’ imprisonment on Counts 1 and 2, to 4 years’ imprisonment consecutive on Count 3 and to 4 years’ imprisonment concurrent on Counts 5 and 7 – making, in his case, a total sentence of 13 years’ imprisonment. He too was disqualified from being a company director for 15 years and made the subject of a Serious Crime Prevention Order for 5 years from his release.[3]There were two co-accused. Stuart Stone was convicted on Count 3 and of two offences of bribery (Counts 4 & 6). Fung Fong Wong was acquitted on all the Counts that he faced. Stone was sentenced to a total of 6 years’ imprisonment, disqualified from being a company director for 10 years, and also made the subject of a Serious Crime Prevention Order for 5 years from his release.[4]Following refusal by the Single Judge, Whale renewed his applications for leave to appeal against both conviction and sentence. West applied for an extension of 12 days in which to renew his application for an extension of time of 6 days for leave to appeal against sentence. He did not seek to renew his application for leave to appeal against conviction (which was based upon email disclosure issues), nor did Stone renew his application for leave to appeal against sentence.[5]At the hearing on 17 March 2016 we refused all the applications, but reserved our reasons for doing so.

The Facts

[6]For present purposes, it suffices to record that West was a director of Sustainable Agroenergy plc (“SAE”) and of its parent company Sustainable Growth Group Limited (“SGG”) which was incorporated in Hong Kong. He was based overseas from his initial engagement in late 2009 until March 2011, when he returned to this country. Whale, who was based in this country, joined SGG in the autumn of 2010 and became its Chief Executive Officer and Chairman in January 2011. He was the Chairman until June/July 2011, and also a director of the majority of the companies in the SGG group. He resigned in December 2011/January 2012. Stone was an independent financial advisor who acted as one of the main introducing agents for investors in SAE offerings. Wong was the main financial controller at SAE.[7]The founder and beneficial owner of SGG was Greg Fryett, who is now in his late 40s. He was in overall charge of SGG and its subsidiary companies. From June/July 2011 until the intervention of the Serious Fraud Office (“SFO”) in February 2012, he was the Chairman of SGG. At the time of the hearing before us, he was in custody in Cambodia, from where his extradition was being sought.[8]The Respondent accepted that SAE (formerly Carbon Credit Farming plc) had been set up for genuine trading purposes. Its principal business was the sale of unregulated financial products to retail investors in the UK. A large proportion of the investments were made via Self-Invested Personal Pension Schemes.[9]The investment products at the centre of the case were concerned with the production of green oil from Jatropha tree plantations in Cambodia operated by SAE. The scheme involved the land being planted with trees from which the fruits would be picked and pressed to extract oil which would be sold, with the revenue generated representing the return on the investment. It was said that the land was held in trust by Citadel Trustees Ltd on behalf of the investors, who were issued with certificates in relation to their individual plots. The land was managed by local farmers who were supervised by SAE employees.[10]In the first half of 2011 serious problems in relation to the green oil scheme became known to the board of SGG – in particular, that the returns being offered to investors appeared to be unsustainable. Hence, on 27 and 28 June 2011, four other directors of SGG resigned because of their concerns.[11]Count 1, which alleged conspiracy to commit fraud by false representation, was concerned with the decision by the Applicants, with Fryett, to continue to sell investment products to investors when they knew that key representations about those products, set out in sales agreements made with investors, were false.[12]The Particulars of Offence were as follows:
“Gary West and James Whale between the 30th day of June 2011 and the 24th day of February 2012 conspired together and with Greg Fryett, dishonestly and intending thereby to make a gain for themselves or another…..or to expose another to a risk of loss, contrary to section 2 of the Fraud Act 2006, to make representations to investors in sales agreements for investment products promoted by Sustainable Agroenergy PLC, namely a Green Oil Lease Programme, an Agroforestry Lease Programme, a Platinum Agroforestry Lease Programme and a Capital Builder Programme which were, and which they knew were or might be untrue and misleading, namely that: i) Sustainable Agroenergy PLC had acquired good title to a large estate of agricultural land of which the plots to investors formed part; ii) transferred to investors were the entire and exclusive beneficial leasehold interest in the plots of land sold, including all the trees planted in the plots and that no other land owner had any rights to the plots or the trees on it; iii) the plots sold were planted with trees; iv) assigned to the investors was the benefit of a ‘force majeure’ insurance policy which covered the investors against any catastrophic loss of the value of the plots as a consequence of either natural or political upheaval.” i) Sustainable Agroenergy PLC had acquired good title to a large estate of agricultural land of which the plots to investors formed part; ii) transferred to investors were the entire and exclusive beneficial leasehold interest in the plots of land sold, including all the trees planted in the plots and that no other land owner had any rights to the plots or the trees on it; iii) the plots sold were planted with trees; iv) assigned to the investors was the benefit of a ‘force majeure’ insurance policy which covered the investors against any catastrophic loss of the value of the plots as a consequence of either natural or political upheaval.”
[13]As to the first two representations, the “large estate of agricultural land” was said by SAE to involve some 6,079 hectares in the Svay Chek District of Cambodia. It was the Prosecution case that, at best, SAE had only an indirect (if any) interest in 1,000 hectares of the land, and (as Carbon Credit Farming PLC) had signed an agreement in October 2009 for the assignment from its Cambodian subsidiary Phalla Development Co Limited of the rights to an Economic Land Concession (“ELC”), which amounted to no more than a permit to farm, in relation to the remaining 5,079 hectares.[14]Concerns had been raised by others within SAE in the period from January 2011 onwards as to whether it owned any of the 6,079 hectares. In particular Dr Paul Beadle, the Commercial Director of SAE from January to June 2011, visited Cambodia twice and raised significant questions about the ownership of the land – including the fact that the ELC did not, as it should have done if it existed, appear on the website of the relevant Cambodian Ministry. At SAE he asked to see the title deeds, but they were never provided. In the result, with Whale’s approval, Dr Beadle was sacked. Similar questions were raised by Lisa Best on behalf of Citadel Trustees Limited, but again no title deeds were provided. In September 2011 Clare Prescott, an employee of SAE, had raised the issue with Whale, and on 3 October 2011 SAE’s Cambodian lawyer Ty Peou (who had previously been supportive of SAE’s position) opined in writing that what was owned by SAE was only an ELC.[15]The conspiracy was brought to an end by the intervention of the SFO in February 2012 – although, as already indicated, Whale had resigned in December 2011/January 2012.[16]When a Management Receiver, Adrian Hyde, was appointed he could find no trace of SAE actually owning any of the land. The subsequent investigation showed that, nevertheless, all 6,079 hectares had been “sold” to investors by October 2011 and that, by the time of the SFO intervention, a total of 8,000 hectares had been “sold”. However, in February 2012, only 198 hectares were actually under cultivation, and that mostly at the 1,000 hectare site.[17]Count 2, which alleged fraudulent trading, was concerned with the same period of time as Count 1 and related to the decision of the Applicants and Fryett to ignore warnings about the state of SAE’s finances and to continue to accept investors’ funds when the company was incapable of meeting its contractual obligations to investors. Indeed, that it continued to trade by operating a Ponzi style fraud – paying existing investors from funds received from new investors.[18]Count 3, which alleged conspiracy to furnish false information, was concerned with 76 double invoices which were used in a joint enterprise by Stone and West to dishonestly extract £3.1 million from SAE - in relation to which Stone paid a total of around £190,000 in bribes to West, as reflected in Counts 4-7.[19]These offences related to one of the products mentioned in Count 1 called the Platinum Agroforestry Lease Programme (“PAL”) which was introduced in May 2011 - the obligations under which could never have been fulfilled by SAE, but the receipts from which enabled SAE to pay returns to its existing investors. Stone was the principal agent who sold the PAL product through a network of other sales agents. He was successful because he offered 25% cash-back to those investing in the product (albeit that, in fact, that gave rise to a high tax liability for the investor or, if they could not pay and the investment involved a Self-Investment Personal Pension, for the pension administrator).[20]In order to keep the scheme quiet, Stone set up, via nominee director services based in the Seychelles, an off-shore company called Liquid Financial – through which the PAL product was sold. Thereafter he forged the nominee director’s signature and pretended to be her when conducting Liquid Financial business – including setting up an email account in her name and sending emails posing as her.[21]After an investment in the PAL product, Stone would send an invoice in the name of his company SJ Stone Limited to SAE for his agreed commission of 30% of the invested sum. In addition, he would send an invoice under the nominee director’s name on behalf of Liquid Financial for a further 35% of the invested sum – which allowed 25% to be given back to investors without being detected, and the other 10% to be used for additional payments – including the bribes paid to West (which amounted to 2% of every invoice paid to Liquid Financial) via West’s personal Isle of Man bank account.[22]During the course of the indictment period West, and to a lesser extent Whale, were also involved in misleading Price Waterhouse Coopers (“PwC”) as to SAE’s financial viability. They also awarded themselves huge backdated salary increases (Whale 266% and West 194%) for which there was no rational justification. In addition, in July 2011 they formed a company called Luxuria Limited in the British Virgin Islands - into the Swiss bank account of which, from September 2011 onwards, £1.2 million of investors’ funds was diverted (from which Stone’s company was paid £950,000, Fryett was paid £152,000 and West £39,000).[23]In the period between August and December 2011 a total of £16 million was obtained from investors by fraud, and in the period from January 2012 until the intervention of the SFO in February 2012 another £5.5 million.[24]In passing sentence the judge observed that had the Applicants, like the other directors, resigned in June 2011 and put the companies into administration, the loss to investors would have been in the order of £5-10 million, rather than the loss of £30-35 million that was caused in the end. They had, he said, known throughout the indictment period that the representations made to investors were false, and from the end of July 2011 neither had had any honest belief that the business was solvent, but had decided to keep it going in order to line their own pockets.

Conviction

[25]Whale’s renewed application for leave to appeal against conviction was based upon two of the four grounds that were advanced before the Single Judge, namely (in the order in which they were argued before us) that HHJ Beddoe erred in: i) Refusing a submission of no case to answer in relation to Particulars i) and ii) of Count 1. ii) Refusing to direct the Prosecution to disclose to Whale the content of the inbox and outbox of his work electronic mail account.

The First Ground

[26]In his Defence Statement Whale asserted, amongst other things, that he believed that SAE had acquired good title to a large estate of agricultural land; that Fryett had told him that the land at Svay Chek was owned freehold; that he had no reason to disbelieve that assertion and positively accepted that it was true; that he believed at the time that the representations made by others as to validity of title were true; that he believed that SAE was free to assign the beneficial leasehold interest and all trees planted on a plot to investors; and that “by the time it was confirmed that the land was not owned by SAE PLC”, he had left the company.[27]Nevertheless, prior to the Opening, it was made clear that the Prosecution were put to proof that SAE had not acquired good title, that what was transferred to investors was not the entire and exclusive beneficial leasehold interest, and that one or more other landowners had rights to the plots.[28]The Prosecution relied upon the evidence summarised in paragraphs 13-16 above.[29]At the conclusion of the Prosecution case a submission of no case was made on behalf of both Applicants in relation to Particulars i) and ii) of Count 1. It was conceded that if the submission as to the first Particular failed, then so did the submission in relation to the second. On behalf of Whale it was argued that it was a matter of Cambodian law as to whether SAE had acquired good title to the land and that, as a matter of foreign law, that could only be proved by expert evidence – in the absence of which there was no evidence proving that investors did not benefit from a transfer as particularised.[30]In rejecting the submission the judge said that he was satisfied that there was evidence upon which the jury, properly directed, could come to the conclusion that the representation made to investors that SAE had acquired good title was not true, or (as it was agreed would be sufficient) was misleading. The representations had been made in English documents representing agreements made with investors which stated on their face that they were governed by, and to be construed in accordance with, English law. Not only was there evidence from a number of witnesses upon which the jury could conclude that there was no good title (because those witnesses said that they could find no evidence of good title), there was also evidence that the October 2009 ELC agreement (which the jury could construe for themselves) did not provide the title alleged, did not cover all the land at Svay Chek, and that the ELC itself was not even registered with the Cambodian authorities. Further, there was evidence that, by the beginning of October 2011, anyone connected with SAE had serious reason to know that an assertion that the company had good title was a claim which was seriously in issue.[31]In his submissions to this Court Mr Rupert Pardoe, on behalf of Whale, argued, in short, that:(1) The issue of whether SAE had good title to the land was a mixed question of law and fact.(2) At trial the Respondent had sought to argue that the meaning of good title was akin to English freehold title, and that such documentation as existed, namely any underlying ELC from the Cambodian Government, did not amount to good title, only to permission to use the land in question, rather than to own it.(3) At no stage did the Respondent obtain any expert evidence as to the applicable law in Cambodia, nor was there any hearsay notice in relation to the Cambodian lawyer Ty Poeu (whose various written opinions, including the one dated 3 October 2011 that what SAE owned was an ELC, were put before the jury by the Applicants in relation to their state of mind).(4) For all that was known, it could be that there was no such thing as absolute title to land in Cambodia.(5) Even under English law no title is inviolable, and “good title” could properly cover something less than a title to land in perpetuity – for example, a 90 year lease or a 20 year lease.(6) The absence of evidence that SAE did own the land was not enough.(7) Hence it was arguable that: (a) The absence of expert evidence as to the law of Cambodia was fatal to the Respondent’s case on these Particulars, and should have resulted in the judge acceding to the submission of no case in relation to them. (b) As the jury were directed that proof of any one of the Particulars on Count 1 was sufficient for a guilty verdict, that verdict was fatally infected. (c) There was inevitably a degree of overlap of infection in relation to the finding of guilt on Count 2 as well.[32]In concise and powerful submissions to the contrary Mr Timothy Cray, on behalf of the Prosecution, argued that:(1) “Good title” was the term chosen by SAE.(2) The Single Judge was right to conclude that foreign law was not part of the Respondent’s case, and that in proving its case that the land in Cambodia was not owned by SAE, the Respondent was entitled to rely on the facts that nothing justified the assertion that had been made (and the Applicants’ asserted belief) that SAE did own the land. In particular, the agreement to transfer the ELC did not in its terms purport to transfer the land, and SAE had no other documents.(3) The submissions advanced on behalf of Whale stood the issue on its head and, in any event, there was no arguable infection of the conviction on Count 2.[33]There was clearly no arguable infection of the conviction on Count 2. As to Whale’s principal argument, we concluded that the Single Judge was plainly right. In the particular circumstances of this case no expert evidence was required. As to the 5,079 hectares, there was evidence that the claimed ELC did not exist. Even if it did, it was plain that the agreement to transfer it did not purport to transfer the land. Equally the absence of any other documentation to support the assertion of good title, whether in relation to the 5,079 hectares or the 1,000 hectares, was telling – especially, after all that had gone before in relation to Dr Beadle, Lisa Best and Clare Prescott, and the inability of the Management Receiver to find any (and thus to be able to sell any) such asset. Accordingly, we concluded that it was not arguable that the judge erred in refusing the submission of no case - which was decisive of the renewed application on this Ground.

The Second Ground

[34]It is necessary to summarise, in broad outline, something of the background.[35]Whale’s work emails were stored on the company system server. When he left the SGG in late December 2011 he lost access to the great majority of them. In contrast, after the intervention of the SFO West retained access to a large number of copies that he had previously made from his own work mailbox.[36]The electronic material in the possession of the Respondent, which included all the stored work emails of both Whale and West, amounted, in all, to 1.3 million documents. There were also about 60,000 hardcopy items. All the various documents were included in a Master Schedule of Non-Sensitive Unused Material.[37]At a Preliminary hearing on 7 October 2013 the Defence were invited to provide search terms to be applied to the unused material. None were suggested by Whale until many months later on 22 August 2014 (i.e. some six weeks before the trial).[38]In the meanwhile 34 key word search terms (or combinations of terms), which were notified to the Defence, were applied by the Respondent to the 1.3 million electronic documents. 114,000 items were responsive, and in the period between December 2013 and the commencement of the trial in October 2014 they, and the 60,000 hard copy items, were reviewed by a team of eight disclosure counsel. Over 20,000 of the electronic documents were deemed to be relevant and were included on a Schedule of Non-Sensitive Unused Electronic Material, which was continually reviewed. Various items were disclosed.[39]Both the Master Schedule and the Electronic Schedule were compiled by applying paragraph 2.1 of the Code to the CPIA which requires the listing of any item if “it has some bearing on any offence under investigation or person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case”.[40]Whale’s Defence Statement was served on 18 June 2014. It contained no disclosure requests.[41]The Respondent applied the 61 search terms eventually suggested by Whale on 22 August 2014. That resulted in over 500,000 items being identified, which the Respondent declined to disclose because of their irrelevance to the issues in the case. At the same time Whale sought disclosure of 85 items from the Master Schedule, of which 4 were disclosed. 50 of the remaining items were the subject of a disclosure application, which was heard on 1 October 2014 (see below).[42]In the meanwhile, on 10 September 2014, Whale sought the disclosure of 4,838 items from the Electronic Schedule, and on 26 September 2014 served a second disclosure application (later fixed to be heard on 9 October 2014) seeking disclosure of 815 of those items.[43]At the hearing of Whale’s first disclosure application on 1 October 2014 the Respondent agreed, given its disclosure relevance, to disclose material in relation to the interviews of two prosecution witnesses and an unused witness. HHJ Beddoe upheld the Respondent’s approach as to the items identified by the application of Whale’s search terms.[44]On 8 October 2014, two days after the trial had begun, West made a disclosure application for all of the SAE emails that he had sent and received in the period between February 2011 and February 2012. It was submitted that this would assist him to present his case in the best possible light, and to act as an aide memoire to his day-to-day activities and knowledge. As part of the application he produced three emails, which it was contended were disclosure relevant but had not been disclosed, and thus undermined the quality of the disclosure exercise generally.[45]Investigation by the Respondent showed that the search terms that it had applied had identified all three emails; that each had been reviewed and did not meet the test for disclosure; that two were listed in the Electronic Schedule; but that, in error, the third had not been listed. In the result the judge declined to grant the disclosure application upon the basis that the material was not relevant to any identified issue in the case, and that use as an aide memoire did not sufficiently identify it as material that fell within the requisite qualitative consideration. Nor, he concluded, did the three emails meet the disclosure test, and the failure to list one of them in the Electronic Schedule did not provide a proper basis for the conclusion that the Respondent’s disclosure exercise was flawed.[46]Following discussion between the parties Whale’s second disclosure application was not pursued on 9 October 2014. Instead the Respondent agreed to re-review 431 items which fell into five specific categories identified by Whale. It was accepted by Whale that the remainder did not meet the test for disclosure. In the result, four items were disclosed.[47]Shortly before the conclusion of the Respondent’s case, on 24 October 2014, Whale, supported by West, made an abuse of process application upon the basis that the proceedings should be stayed as a result of the suggested material non-disclosure of the entirety of their SAE emails by the Respondent – albeit that, up to then, there had been no application by Whale for the disclosure of all his work emails. As part of the argument it was submitted on behalf of Whale that, given that the case was largely concerned with his state of mind at material times, he was entitled to disclosure of all his work emails on an aide memoire basis.[48]In a detailed ruling, given on 30 October 2014, the judge refused the application. Having reviewed the disclosure history of the case (including the lateness of the various applications made in behalf of Whale) he concluded, amongst other things, that neither the proper application of the statutory disclosure process, nor a ruling that Whale was not entitled to material, could sustain an argument that he could not have a fair trial; that the application for disclosure had to be judged by reference to the Defence case; that, to date, there had been no suggestion of Whale or West having made or received relevant correspondence that had not been produced; that there was nothing in Whale’s Defence statement to suggest forgetfulness; that no doubt a number of emails had been written by or to Whale but unless they were relevant to an issue they did not meet the test for disclosure; that the emails were not an aide memoire, as they had not been created for memory refreshing purposes; that even if they were applying the CPIA test, they still did not fall for disclosure.[49]It was Whale’s case that he spent about 70% of his time dealing with matters relating to SGG and its other subsidiaries, and only about 30% of his time dealing with matters relating to SAE. During his examination in chief he relied on a planting schedule, which purported to show forecasts for catching up the planting backlog. He accepted that he had been responsible for providing such a schedule to PwC as part of the preparation of SAE’s 2009-2010 accounts. The Respondent had served the final version of the planting schedule (dated 10 August 2011) that had been used by PwC in the final preparation of those accounts. Whale referred to and relied on an earlier version (dated 19 July 2011).[50]In cross-examination Whale said that he had relied upon figures provided by Fryett. He was then asked about the difference between the figures that he had received in an email from Fryett and the improved figures in the version of the planting schedule that he was relying on. Whale said that the email was one of multiple communications between him and Fryett, that he was not allowed access to his emails, and that if he was they would assist his case.[51]In those circumstances the Respondent served all the emails in Whale’s SAE email account between him and Fryett in the period from 1 – 10 August 2011. They amounted in total to 136 pages, although much of that was repetition. Three of the emails had already been disclosed, six had been included in the Electronic Disclosure Schedule but did not meet the test for disclosure, and a further 6 had responded to search terms but had not met the test for inclusion in the Schedule. The Respondent’s case was that the emails further demonstrated that Whale had manipulated the planting figures.[52]The judge rejected arguments advanced on behalf of Whale that some of the emails met the test for disclosure and that all should be excluded. Given that Whale had himself suggested that the emails would assist his case, the Respondent was permitted to cross-examine him about a number of them.[53]Before us, Mr Pardoe submitted that the aide memoire issue had potential ramifications for future trials in other cases - such that leave ought to be granted on this Ground and its merits be decided only after full argument.[54]It was odd, he submitted, if a Defendant’s ability to access his own emails was dependent on the happenstance of whether he had backed them up for himself (as most people do) or not. The CPIA disclosure regime was never envisaged to extend to documents that were the creation of an accused himself. Whale was having to deal with his state of mind four years before the trial, and the combination of the emails that he had sent and received was the equivalent of a diary or other memory refreshing document, and thus might reasonably be expected to assist him. Whilst Whale had been late in suggesting search terms etc., the judge had erred in concluding that the emails were not memory refreshing documents, and in not ordering their disclosure – which amounted to allowing form to trump substance as emails are the modern day equivalent of a working diary or memo pad. Thus, whether under the CPIA regime, or under an exception to it relating to memory refreshing documents, the judge should have ordered disclosure.[55]As to memory refreshing in general. Mr Pardoe reminded us that, under s.139 of the Criminal Justice Act 2003, a witness may at any time refresh their memory from a document made or verified by them at an earlier time – if the witness states in evidence that the document records their recollection of matters at that earlier time, and that their recollection is likely to have been significantly better at that time.[56]In any event, Mr Pardoe submitted, disclosure of all Whale’s emails would have better enabled him to demonstrate to the jury the extent to which he was preoccupied by a wide range of equally important issues affecting SGG, and would have allowed him to present the jury with specific examples of what had been on his mind when he received key emails upon which the Respondent relied.[57]The refusal of the Respondent to provide the emails had been capricious, and was almost bound to create significant unfairness in the trial process – as illustrated by the production of the emails during cross-examination.[58]On behalf of the Respondent, Mr Cray underlined that (save for the one error) all the emails that had passed the low threshold test in paragraph 2.1 of the Code to the CPIA (see paragraph 39 above) had been individually listed in the Electronic Schedule that had been provided to the Defence.[59]Mr Cray submitted that the Respondent’s approach to disclosure had been in accordance with R v H [2004] UKHL 3; with the Judicial Protocol on the Disclosure of Unused Material in Criminal Cases (issued by the Lord Chief Justice on 3 December 2013), and the Attorney General’s Guidelines (issued on the same date) – including the Supplementary Attorney General’s Guideline on Digitally Stored Material annexed to it; and with the detailed guidance, both as to principle and practicality, given after the trial by this Court (consisting of the President of the Queen’s Bench Division, Gross LJ and Fulford LJ) in R v R & Others [2015] EWCA Crim 1941. Therefore, he submitted, there was no unfairness to Whale and the judge had been right in his various rulings in relation to disclosure. Any other approach by the Respondent would have amounted to a dereliction of its duties, and a return to the now impermissible “keys to the warehouse” approach.[60]As to the aide memoire issue, Mr Cray submitted that memory refreshing provided no exception to the CPIA disclosure regime. It had to be tied to relevance under that regime. Any other approach would amount to driving a coach and horses through the regime.[61]In that regard Mr Cray relied upon the decision, also after the trial in this case, in R v Hayes [2015] EWCA Crim 1944. In that case the Appellant was convicted of eight counts of conspiracy to defraud in relation to the manipulation of the Yen Libor rate. He had sought the disclosure of various records showing his daily “profit and loss”, his daily risk, and his “trade blotter” upon the basis that the only way in which his motivations on any given day could be analysed would be through knowing what his “profit and loss” and “risk” were on that day – without those he would be denied the tools that he relied on at the time to inform his decision making process. The trial judge’s refusal to order disclosure was upheld by this Court (consisting of the Lord Chief Justice, the President of the Queen’s Bench Division and Gloster LJ) at [61]-[75] of the judgment.[62]In particular, at [74] the Court said:
“It is important to underline that the obligation on the prosecution under the CPIA (whether as a primary obligation under s.3 or as a consequence of a specific request under s.8) is to disclose material which [might] reasonably be capable of undermining the case for the prosecution or assisting the case for the defence. The legislative scheme is not intended to require disclosure of a document simply on the basis that that it may be relevant in some undefined or diffuse way other than undermining the prosecution or assisting the defence. Neither is it appropriate for the judge to require the prosecution (or a third party) to perform an exercise of tangential significance.”
[63]As to Whale’s ability to demonstrate that he was preoccupied with other issues relating to SGG, Mr Cray pointed out that the Respondent had made it clear that it was not disputed that Whale had significant other responsibilities.[64]Thus, Mr Cray submitted, the Single Judge had been right to conclude that the disclosure applications had been properly dealt with by the judge, and that the purposes for which it was said that the emails were required were not sufficient to require disclosure.[65]We agreed with the arguments advanced by Mr Cray. We concluded that it was self-evident that the propositions advanced on Whale’s behalf to the effect that the CPIA disclosure regime does not apply to documentation created (or received) by an accused, and that documents said to be required for memory refreshing fall outside the regime altogether, were unarguable. We further concluded that the combination of R v R & Others and R v Hayes (both above), together with the fact that the Respondent did not dispute that Whale had significant other responsibilities, provided a complete answer to the arguments advanced on Whale’s behalf without any need for fuller argument. Indeed, we concluded that, notwithstanding the challenges posed by the inappropriate lateness of the applications and arguments advanced before and during the trial on Whale’s behalf, both the Respondent and the judge had dealt with the resultant issues fairly and appropriately. Hence we refused the renewed application for leave on this Ground as well.

Sentence

[66]On behalf of West, the central point advanced by Mr Bentley, whilst accepting that the offences in Counts 1 & 2 were serious, and that consecutive sentences for the remaining offences were justified, was that a total of 13 years’ imprisonment was too long. He underlined that neither the companies, nor West’s involvement with them, had been fraudulent from the outset. The difficulties into which SAE had got had not been the fault of West and Whale, and their objective had been to trade out of them. There had only been 9 months of dishonesty, and insufficient weight had been given to West’s mitigating features – in particular that he was in his mid 50s, of previous good character, the sole carer of three young children (the youngest of whom was aged 6), that part of the monies that he had obtained was salary to which he was entitled, and that he had not had an extravagant lifestyle.[67]On behalf of Whale, Mr Pardoe underlined, amongst other things, that Whale was of positive previous good character, and had five children; that he had joined the companies with the best interests of investors at heart, that it had not been a fraud from the start, that his period of offending was relatively limited, and that he had left before the frauds were brought to an end.[68]HHJ Beddoe presided over the trial and was thus in the best position to decide the factual basis (of which he necessarily had to be sure) upon which to pass sentence. Although, as he recognised, this case did not involve a fraud from the outset, his sentencing remarks were comprehensive, clear and compelling as to the extreme gravity of the Applicants’ offending. We concluded that the total sentences that he imposed in relation to both Applicants were within the appropriate range (albeit towards the top of it) and that accordingly it was not arguable that the sentences were manifestly excessive. Nor, we concluded, was it arguable that there should have been a difference between the Applicants in the sentences imposed in relation to Counts 1 & 2.[69]Hence we refused the applications in relation to sentence.