Sharma, R. v

Factual and Procedural Background

The Appellant, aged 48, was convicted on 31 January 2024 at the Crown Court at Isleworth of multiple counts of fraud by misrepresentation under the Fraud Act 2006 and money laundering offences under the Proceeds of Crime Act 2002 ("POCA"). The convictions included five counts of fraud, one count of possessing criminal property, and one count of transferring criminal property. The Appellant's wife was acquitted of a money laundering charge. The Appellant was sentenced on 7 February 2024 by the trial judge to four years' imprisonment concurrent on each count of conviction.

The essential facts concern the Appellant's conduct in 2014 and 2015 while working as an estate agent for Company A. He encouraged individuals to invest in properties in Germany and Portugal, marketing these opportunities using brochures bearing the names of Company A and an investment company called Company B. Investors paid substantial sums intending to purchase properties, but ultimately none obtained any property and most lost their funds. Complaints led to an investigation by Action Fraud in 2018, the Appellant's arrest, and subsequent trial on an indictment containing eleven counts, including eight fraud counts alleging false representations made to named investors.

The prosecution case was that the Appellant made false representations that he would arrange property purchases abroad, intending to gain financially. The prosecution presented evidence including witness testimony and financial records. The Appellant's defence included a submission of no case to answer, arguing the alleged representations were not false as the Appellant did arrange or sought to arrange purchases. The trial judge rejected the no case submission and refused to discharge the jury after an application by defence counsel. The indictment was amended during trial to clarify certain representations. The jury convicted the Appellant as noted above.

Legal Issues Presented

1. Whether the trial judge erred in rejecting the submission of no case to answer on the fraud counts, specifically whether the representations alleged were false within the meaning of the Fraud Act 2006.
2. Whether the trial judge should have discharged the jury due to prejudice caused by the defence conducting the case on a misunderstanding of the indictment's particulars.
3. Whether the indictment, both original and amended, properly pleaded a representation within the meaning of section 2 of the Fraud Act 2006.
4. Whether the sentence imposed was excessive, particularly regarding the categorisation of culpability and victim harm.

Arguments of the Parties

Appellant's Arguments

• The submission of no case to answer should have been upheld because there was no evidence that the alleged representation that the Appellant "would arrange the purchase of foreign properties" was false; evidence showed attempts to arrange such purchases.
• The defence was prejudiced by the trial judge’s refusal to discharge the jury after ruling there was a case to answer, as the defence had misunderstood the indictment and conducted the case on a different basis.
• The indictment did not plead a representation as required by section 2 of the Fraud Act 2006, and the wording was inherently ambiguous, treating promises about future actions as representations of fact, which is outside the Act’s scope.
• The sentencing was challenged on grounds that the judge overstated culpability and victim harm, arguing the fraud was straightforward, not sustained, with limited abuse of trust and that victim impact was primarily financial without serious consequential harm.

Prosecution's Arguments

• The prosecution case was never that the overseas deals were not real but that the Appellant misrepresented the manner in which he would arrange the purchases and the associated risks, including false assurances about deposits and use of Company A and Company B’s names.
• The indictment should be read to include these misrepresentations implicitly, and the prosecution sought to amend the indictment to make these explicit.
• The judge’s refusal to discharge the jury was appropriate as any prejudice was remediable, and the defence had opportunities to address the amended case, including recalling witnesses.
• Sentencing reflected the gravity of the offence, including abuse of trust and significant financial loss, justifying the categorisation and sentence imposed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Government of United Arab Emirates v Allen [2012] EWHC 1712 (Admin), [2012] 1 WLR 3419	Clarification that a promise or prediction about future conduct is not a representation of fact or law under the Fraud Act 2006.	The court agreed with the analysis that the indictment’s wording was ambiguous and likely referred to a promise about future conduct, which falls outside the Fraud Act’s scope.
British Airways Board v Taylor [1976] 1 WLR 13	Warning against over-readiness to treat a promise as to future conduct as an assurance about present intent, especially with criminal consequences.	The court cited this authority to support the conclusion that the indictment should have clearly pleaded any allegation that the Appellant lacked present intent to perform the promised act.

Court's Reasoning and Analysis

The court carefully analysed the indictment’s wording and the nature of the representations alleged. It found the original indictment deficient as it ambiguously alleged that the Appellant "would arrange the purchase of foreign properties," which could be construed as a promise or prediction about future conduct rather than a representation of fact or law as required by the Fraud Act 2006. The court held that for a fraud by misrepresentation, the indictment must clearly identify a false representation of fact or law made dishonestly with intent.

The court rejected the trial judge's view that certain specific misrepresentations (refundable deposit, securing property, legitimate use of Company A and Company B's names) were implicit in the indictment. It concluded these were separate allegations not clearly pleaded in the indictment’s express language. The prosecution evidence did not establish falsity of the pleaded representation, as the Appellant had sought to arrange real property deals and had attempted repayments.

However, the court considered the amended indictment, which explicitly identified the three representations. It found that the amendments sufficiently clarified the case to the defence and that the case was fairly conducted on this basis. The court upheld the trial judge’s conclusion that any prejudice caused by the late amendment was remediable by procedural safeguards and did not warrant discharge of the jury.

Regarding sentencing, the court accepted that the trial judge correctly categorised the offence as culpability A but considered the judge overstated the degree of culpability and victim harm. The court noted the primary harm was financial without more serious social or psychological consequences, warranting a lower starting point within the sentencing guideline range.

Holding and Implications

The court dismissed the appeal against conviction, holding that the convictions were safe based on the amended indictment and the evidence supporting the misrepresentations as pleaded in that version.

Regarding sentence, the court QUASHED the original sentences and substituted concurrent sentences of three years' imprisonment on each count. The court noted that the practical effect might be limited as the Appellant had been released on home detention curfew, but emphasised the substituted sentence was just and appropriate.

No new legal precedent was established beyond the application of existing principles concerning indictment particulars and fraud by misrepresentation under the Fraud Act 2006.