On 28 February 2020, an Old Bailey jury acquitted Roger Jenkins, Tom Kalaris and Richard Boath of offences of conspiracy to commit fraud during a period when they were senior directors and executives of Barclays Bank. The Bank had originally been indicted as a co-conspirator but in a judgment dated 21 May 2018, Jay J dismissed the charges against the Bank. The prosecutor, the Serious Fraud Office, subsequently applied for a voluntary bill of indictment to revivify the prosecution but Davis LJ rejected that application in a written judgment dated 12 November 2018:  EWHC 3055 (QB). It was following the acquittals that both of those judgments were published.
No doubt much will be written elsewhere about various aspects of those judgments, and in particular the approach taken by the court to the principles of corporate criminal liability. For an interesting and recent discussion on how those principles could be reformed, see M. Dsouza, ‘The Corporate Agent in Criminal Law – An Argument for Comprehensive Identification’ in Volume 1 of the 2020 edition of the Cambridge Law Journal. The focus of this Blog is the procedural dimension to the court’s considerations and specifically whether the court fully grasped the important distinction between the charges on which the defendant was sent to the Crown Court and the counts in the indictment subsequently preferred against him.
In the very first paragraph of his judgment Jay J described his task in this way:
Para.1 – ‘Barclays PLC (“Barclays”) and Barclays Bank PLC (“Barclays Bank”), collectively “the companies”, have applied to dismiss all charges brought against them by the Serious Fraud Office (“the SFO”) on Counts 1, 2 and 3 of the joinder indictment preferred on 16thFebruary 2018”
The indictment was attached as an Appendix to his judgment, and Jay J embarked on an exposition of the law by reference to the offences charged in the indictment. He went on to identify the test to be applied at the stage of a dismissal application from para.86 onwards. He recognised that the jurisdiction of the court was governed by paragraph 2(1) of Schedule 3 to the Crime and Disorder Act 1998, which provides that where a person is sent for trial he may apply to the Crown Court to dismiss the charge or charges in the case. He then added – “By paragraph 2(2) the judge must dismiss a charge, and take necessary consequential action in relation to the Indictment, “if it appears to him that the evidence contained against the applicant would not be sufficient for him to be property convicted.”” Having considered the facts and the law, he allowed the applications and held, at para.229, that “the charges specified in Counts 1, 2 and 3 on this Indictment must be dismissed” in so far as they related to the corporate defendants.
It is important to recognise at the outset that there is a conceptual difference between the offences a defendant is charged with and the offences that are particularised in the counts of the indictment ultimately preferred against him. They may not be the same offences, but even if they are the same offences, the way in which they are framed can differ. No-where in his judgment does Jay J set out the offences with which the corporate defendants had been charged when they made their first and only appearance in the magistrates’ court. The casual reader of the judgment is left to assume they must have been the same offences as subsequently appeared in the indictment, and with the same particulars as well. That may or may not have been the case here.
In serious fraud cases, as with other cases, there are a variety of different ways in which a prosecutor can commence criminal proceedings. They are neatly set out in rule 7.1 of the Criminal Procedure Rules. If a defendant is in custody already they can be charged with the offence by the police. If they are not in custody then the prosecutor can either issue the defendant with a written charge and requisition pursuant to section 29 of the Criminal Justice Act 2003 (if the prosecutor has the power to do so) or apply to the magistrates’ court for the issue of a summons under section 1 of the Magistrates’ Courts Act 1980. In any case rule 7.3 provides that the allegation of an offence must describe the offence in ordinary language and identify any legislation that created it. Moreover, the allegation must contain “such particulars of the conduct constituting the commission of the offence as to make clear what the prosecution alleges against the defendant”. Where the prosecutor serves notice pursuant to section 51B of the Crime and Disorder Act 1998 in a serious or complex fraud case then at the defendant’s first appearance the magistrates will allocate his case to the Crown Court (rule 9.6). Where a section 51B notice has not been served the magistrates will nevertheless consider under section 51 (in the case of an adult) whether to send the case to the Crown Court for trial and if there is a sending then the procedure in rule 9.7 needs to be complied with and the magistrates will ask the defendant whether he intends to plead guilty in the Crown Court.
The offence the defendant was charged with in the magistrates’ court accompanies him to the Crown Court. Once there, paragraph 2(1) of Schedule 3 to the 1998 Act stipulates that after he has been served with the documents containing the evidence on which the prosecution rely, but before arraignment, he may apply orally or in writing to the Crown Court for any of the charges on which he was sent to the Crown Court for trial to be dismissed. The procedure for making an application to dismiss is governed by rule 9.16, which again makes it clear the application is in respect of the offences for which the defendant was sent to the Crown Court to be tried. The effect of paragraph 2(2) is that if the charge is dismissed then the Crown Court should also quash any count relating to it in any indictment preferred against the defendant, which also served to emphasise that there is a difference between the charge to which the application relates and the contents of the indictment, if one has been preferred by the time the application is made.
What this all means in practice is that by whatever route the defendant arrives at the magistrates’ court, by that stage he will face an offence or offences that should be clearly identified and sufficiently well-particularised to enable the defendant to understand what the allegations against him are (see R v K  1 Cr App R 408 and R v Goldshield Group plc  1 WLR 458 at ). If those particulars are lacking, the magistrates court can order them to be supplied by the prosecution. Once those charges have arrived in the Crown Court, whether following an allocation or a sending, they cannot be amended (see Serious Fraud Office v Evans 1 WLR 3526 at ). Of course, on an application to dismiss, the Crown Court must take into account the evidence served by the prosecution and so even if the charge is vague as to the particulars of the conduct said to constitute the offence those particulars might emerge from a full consideration of that evidence (see The Queen (on the application of John Preston Bentham v The Governor of Her Majesty’s Prison Wandsworth  EWHC 121 (Admin) at ). Where there is no material difference between the form of the proposed indictment and the charges that were sent to the Crown Court then the Crown Court judge would be entitled, it would seem, to determine the application to dismiss by reference to the proposed indictment (see Evans at ) although it would still remain an application to dismiss the charges rather than the counts. What then of the situation where a vague and unparticularised charge of fraud is sent to the Crown Court and the evidence discloses a numbers of ways in which that fraud could have been carried out? It is conceivable that the judge in the Crown Court would permit the prosecution to submit a document pinning its colours to the mast with regard to the manner in which, on the evidence served, the prosecution maintain the offence was committed but it is inconceivable the judge would permit the prosecution to amend its case in response to the application to dismiss, at least not without the defence having had proper notice of the proposed change (see R v Evans (Eric)  1 WLR 2817 at ).
The problem with the judgment of Jay J in Barclays is that he does not set out what the charges were and, just as importantly, what the particulars of those charges were. Barclays might have been one of those cases where there was no material difference between the charges and the counts on the indictment (as was the position in the Evans case) but if so Jay J should have made that clear. In any event, no-one should be left with the impression that the application to dismiss related to the counts in the indictment. It was an application directed solely against the charges the defendants faced at the moment their case was allocated or sent to the Crown Court. The problem of distinguishing between charges and counts could be dispensed with entirely if the law was changed to reflect one of the recommendations made by Auld LJ in 2001 (‘Review of the Criminal Courts of England and Wales’) and endorsed by Leveson LJ in 2015 (‘Review of Efficiency in Criminal Proceedings’ at para.367) that the same form of charge should be maintained throughout the case and be subject to the same procedural and drafting requirements at all stages. In this way, the charge that accompanies the defendant from the magistrates’ court would remain in place in the Crown Court and be capable of amendment on the application of the prosecution in the same way that an indictment is. If that change ever came to pass then the process by which judges of the Crown Court undertake applications to dismiss would be much simpler.