Wiseman v Rex

Factual and Procedural Background

In 2020, during the global coronavirus pandemic, a "stay at home" order was issued in England. At that time, no licensed treatments for coronavirus existed. The Appellant was prosecuted for fraud after an investigation by Trading Standards into the marketing and sale of an oil mixture claimed to cure or protect against coronavirus infection. The Appellant was convicted in December 2022 at the Inner London Crown Court of fraud contrary to s. 1 of the Fraud Act 2006 and sentenced in February 2023 to a 12-month custodial sentence suspended for 24 months, with 130 hours of unpaid work, a costs order of £60,072.50, and a victim surcharge of £149.

The Appellant appeals against conviction on three grounds: inadequate jury directions on knowledge and dishonesty; an error in defence counsel's closing speech that should have led to jury discharge; and inadequacy of the Judge's correction of that error. The Appellant also renews an application for leave to appeal the costs order.

Trading Standards received a complaint in March 2020 that the Kingdom Church, led de facto by the Appellant, was selling an oil mixture marketed as protective or curative against coronavirus. The oil, described with religious terminology and supported by biblical references and testimonials, was sold initially at £91 per bottle. Trading Standards requested removal of coronavirus-related claims in March 2020, but changes to marketing only occurred a year later.

The prosecution alleged the oil's promotion was exploitative commercial opportunism disguised as faith, constituting dishonest false representation for financial gain. Lesser charges of unfair commercial practice were also presented. The defence asserted the Appellant genuinely believed in the oil's efficacy due to religious conviction, supported by testimonies, and denied personal profit from sales.

During trial, defence counsel made a factual error in closing speech regarding prior Trading Standards investigations into the Kingdom Church, which was corrected by the Judge in summing up. The Judge gave detailed legal directions on the elements of fraud, emphasizing the requirements of knowledge and dishonesty under the Fraud Act 2006.

Legal Issues Presented

1. Whether the Judge inadequately directed the jury on the essential elements of knowledge and dishonesty, including insufficient consideration of the Appellant's religious beliefs.
2. Whether defence counsel's erroneous statement during closing speech necessitated discharge of the jury due to prejudice.
3. Whether the Judge's corrective directions regarding the erroneous statement were inadequate, particularly concerning the status of the corrective information and absence of a propensity direction.
4. Whether leave to appeal against the costs order should be granted on grounds of procedural unfairness or manifest excessiveness.

Arguments of the Parties

Appellant's Arguments

• The Judge conflated knowledge and dishonesty in jury directions and failed to properly instruct the jury to consider the Appellant's religious beliefs as part of his defence.
• Defence counsel's incorrect statement about no prior investigations was highly prejudicial, introduced late, and no opportunity existed to address it, requiring jury discharge.
• The Judge wrongly treated the corrective information as evidence and failed to direct the jury against using it as propensity evidence.
• The costs order was made without a proper means enquiry, relied on impressionistic assessment rather than detailed evidence, and was manifestly excessive given the Appellant's financial circumstances.

Respondent's Arguments

• The jury was adequately directed on knowledge and dishonesty, including the relevance of religious beliefs.
• The correction of defence counsel's error was timely and sufficient, causing no real prejudice to the Appellant.
• No error was made by the Judge in directing the jury regarding the prior investigation information.
• The costs order was properly made after thorough consideration of financial evidence; no procedural unfairness or manifest excess was demonstrated.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the alleged inadequacy of jury directions on knowledge and dishonesty. It found that the Judge correctly identified and separated the elements of the offence under the Fraud Act 2006, including knowledge as a discrete requirement. The written and oral directions accurately set out the law, and the oral "rider" emphasizing dishonesty did not confuse the jury or conflate issues improperly. The court also held that the Judge's treatment of the Appellant's religious beliefs was appropriate: while the trial was not about religion itself, the beliefs were relevant to the Appellant's knowledge and dishonesty and were adequately brought to the jury's attention through defence evidence and closing submissions.

Regarding defence counsel's erroneous statement about no prior Trading Standards investigations, the court acknowledged the error but concluded that the Judge's corrective directions were fair, measured, and sufficient to cure any prejudice. The corrective information was introduced solely to rectify the false impression, with strict instructions not to treat it as evidence or propensity material. The court rejected the argument that the jury should have been discharged, noting that the introduction of the corrective information was necessary and that no party or the Judge considered discharge appropriate at trial. The absence of a propensity direction was not fatal given the clear instructions limiting the use of the information.

On the renewed appeal against the costs order, the court found no procedural unfairness or manifest excess. The Appellant had ample opportunity to provide financial information, which was found to be incomplete and inconsistent. The Judge was entitled to conclude the Appellant had the means to pay the full costs. The court emphasized the obligation on a defendant to make full disclosure of means and upheld the costs order accordingly.

Holding and Implications

The appeal against conviction is DISMISSED, affirming the safety of the conviction on all grounds raised. The renewed application for leave to appeal against the costs order is REFUSED.

The decision directly affects the parties by upholding the conviction and the costs order but does not establish new precedent beyond the application of established principles regarding jury directions, correction of defence errors, and financial disclosure in costs proceedings.