“Promises Are Not Facts”: Sharma v R ([2025] EWCA Crim 1122) and the Pleading of Representations Under the Fraud Act 2006

1. Introduction

Sharma v R concerns the appeal of Vikas Sharma, an estate agent convicted of multiple counts of fraud by misrepresentation (Fraud Act 2006, s.1 & s.2) and money-laundering (POCA 2002, ss.327–329). The England & Wales Court of Appeal (Criminal Division), constituted by Lord Justice Warby and two others, was invited to quash the convictions and reduce the sentence of four years’ imprisonment imposed by the Crown Court at Isleworth.

The appeal raised three inter-locking issues:

Pleading sufficiency: whether the indictment properly alleged a representation of fact or law as required by s.2(3) Fraud Act;
Fair trial safeguards: whether late amendment of the indictment after the defence submission of “no case” caused incurable prejudice; and
Sentencing proportionality: whether the trial judge mis-applied the Fraud Guideline (2018) in classifying culpability/harm.

While the convictions were upheld, the Court of Appeal quashed the sentence and substituted three years’ imprisonment. The judgment establishes an important clarification: an allegation that a defendant “will do something” is not by itself a representation within s.2 unless the prosecution pleads and proves that the statement implicitly asserted a present intent. Prosecutors must therefore draft indictments with precision, expressly identifying each representation of existing fact (or state of mind) said to be false.

2. Summary of the Judgment

(1) Indictment Defect: The original counts merely alleged that Sharma “would arrange the purchase of foreign properties”. On a literal reading this was a promise/prediction about future conduct, falling outside s.2 Fraud Act. The particulars therefore failed to give “reasonable information” (Indictments Act 1915, s.3; CrimPR 10.2).

(2) Amendment Permitted: Although the trial judge should have dealt with amendment before ruling on “no case”, the Court held the amendment (to specify three factual misrepresentations: refundable deposits, deposit security, and Hunters’ authorisation) cured the defect, gave adequate notice, and created no unfairness.

(3) Conviction Safe: The evidence could support the amended allegations; offers to recall witnesses and adjourn over Christmas mitigated any prejudice; therefore the appeal against conviction failed.

(4) Sentence Reduced: The Court re-calibrated culpability and harm, holding that the judge had moved up a whole category when an upward movement within Category 2A sufficed. After re-working the guideline arithmetics and delay discount, the correct sentence was three years, not four.

3. Analysis

3.1 Precedents Cited and Their Influence

Government of United Arab Emirates v Allen [2012] EWHC 1712 (Admin); [2012] 1 WLR 3419 – the Divisional Court held a promissory statement about future conduct is not a “representation” unless it conveys a present fact (e.g. current intention). Sharma endorses and applies Allen at [28], cementing it as core authority on s.2(3).
British Airways Board v Taylor [1976] 1 WLR 13 – caution against re-characterising a promise as a representation of current intention; relied on at [29] to reject the trial judge’s implied-meaning approach.
Criminal Procedure Rules 10.2 and Indictments Act 1915, s.3 – cited for the requirement that an indictment must “make clear what the prosecutor alleges”. They underpin the Court’s conclusion that the pleading was “inherently ambiguous”.
Sentencing Council Fraud Guideline (2018) – although not a “precedent”, its structured methodology governed the sentence re-calculation.

3.2 Legal Reasoning

The Court’s reasoning unfolds in three logical stages:

Statutory interpretation of “representation”
• A representation must be “as to fact or law”, present when made (Fraud Act 2006, s.2(3)).
• A bare promise of what the accused will do lacks that temporal anchor.
• Only if the promise implies “I presently intend to do X” can it qualify – but that implication must be pleaded clearly.
Pleading and Fair Trial Standards
• Defective particulars violate CrimPR 10.2 and risk a Galbraith “no case” outcome because the jury cannot be sure of the factual allegation to prove.
• However, CrimPR 14 and Rule 3.5 allow late amendments if (a) the defence still understands the case, and (b) safeguards neutralise prejudice (adjournment, recall of witnesses, restrictions on adverse comment).
Application to the facts
• Trial indictment = defective (promise only).
• Amended indictment = sufficient (three factual misstatements).
• Prejudice test satisfied – defence cross-examination already encompassed core facts; witnesses could have been recalled; consequential differences trivial.
• Thus, convictions safe despite initial drafting fault.

3.3 Likely Impact of the Decision

Charging practice: CPS and private prosecutors must ensure that every fraud count identifies current fact-based representations. “Will”, “shall”, “intend”, or other future-looking verbs are red flags unless coupled with an express allegation of present intent.
Early scrutiny of indictments: Defence teams should consider an early CrimPR 9 submission that an indictment is deficient if it alleges only promises. Conversely, prosecutors may pre-emptively amend before arraignment.
Trial management: Judges encouraged to deal with any amendment application before ruling on “no case”, avoiding the two-stage procedure criticised here.
Sentencing calibration: The appellate revision re-emphasises careful, step-by-step guideline application, especially avoiding a double count of harm (moving categories plus moving within range).

4. Complex Concepts Simplified

Representation (Fraud Act 2006 s.2) – a statement about an existing fact, law, or the speaker’s present mindset. It is not a mere promise.
No-case submission (Galbraith) – at the close of the prosecution case the defence may argue there is insufficient evidence on an essential element; if upheld, the judge must direct acquittal.
Indictment Amendment – under CrimPR 14 the court may amend counts at any stage if “in the interests of justice”, provided the accused is not unfairly prejudiced.
Culpability A/B/C (Fraud Guideline) – A = higher culpability (e.g. abuse of position, sophistication, multiple victims); B = medium; C = lesser. Harm is calculated by financial loss and victim impact; each affects starting points and ranges.

5. Conclusion

Sharma v R crystallises a vital point of criminal pleading: promises are not, without more, “representations” under the Fraud Act 2006. Prosecutors must allege a misstatement of current fact or intent; otherwise the indictment is vulnerable to attack. The Court of Appeal’s willingness to uphold convictions following amendment underscores the flexible, fairness-driven approach to trial error—yet it places primary responsibility on the prosecution to plead with clarity.

On sentencing, the judgment refines guideline methodology, guarding against excessive upward departures for victim impact where financial (rather than profound personal) harm predominates. In the broader landscape, Sharma is set to be the go-to authority on the boundary between promissory language and factual representation, influencing charging decisions, preliminary hearings, and appeals for years to come.