Sartip-Zadeh & Ors, R. v

Factual and Procedural Background

Five related applications were listed together, made by three family members, each seeking extensions of time and leave to appeal against conviction and/or sentence following refusal by a single judge. The applicants are anonymized here as Appellant (first applicant), Appellant (second applicant) and Appellant (third applicant). A fourth co-accused received a separate outcome and did not renew leave to appeal.

At trial before Judge Belcher in The City on 5 April 2023, Appellant (first applicant) was unanimously convicted on two counts of fraudulent trading (counts 1 and 2), one count of engaging in an aggressive commercial practice (count 3) and one count of concealing, converting and transferring criminal property (count 4). Appellant (second applicant) was convicted unanimously on counts 1, 2 and 4 and earlier acquitted on count 3 on the judge's direction. Appellant (third applicant) was unanimously convicted on count 4.

Sentencing on 15 May 2023 produced lengthy custodial terms for the first and second appellants and a suspended sentence order with requirements for the third appellant. The first and second appellants were also disqualified from acting as directors for a 10 year period. The factual core, as described in the trial materials, was that between 2013 and 2019 the two brothers operated paid websites purporting to arrange European Health Insurance cards even though such cards were available without charge from The Hospital. Trading standards engaged, warning letters were issued, and after an initial closure the brothers restarted operations with a second website. Count 1 concerned the first website, count 2 the second, count 3 related to threats made to customers seeking refunds, and count 4 concerned the movement of proceeds through family bank accounts. The total loss to customers for the fraud counts was stated at £2,664,264 split between the two fraud counts.

Legal Issues Presented

1. Whether the applications for extension of time and leave to appeal against convictions should be granted, where the single judge had refused such leave.
2. Whether the convictions are safe in light of (a) alleged loss of potentially helpful electronic evidence (an encrypted server) and (b) the effect of co-defendants' trial decisions on each appellant's fair trial rights.
3. Whether the sentences imposed were manifestly excessive or wrong in principle, having regard to culpability, aggravating features (including resumed offending after investigation), totality and the Sentencing Council guidelines.
4. Procedural: whether new matters raised in recent memoranda could be considered where they were not included in original grounds of appeal.

Arguments of the Parties

Appellant (first applicant) — Conviction

• Argued prejudice from loss of potentially helpful evidence held on an encrypted server (referred to at trial as KM/1), asserted to be inaccessible because a police examiner had locked and encrypted it with a 100-character password.
• Argued prejudice arising from the co-defendant's conduct in dispensing with leading counsel, causing the junior counsel to withdraw, and the co-defendant's decision not to give evidence, which the appellant said denied him a fair opportunity to defend.

Appellant (first applicant) — Sentence

• Contended the total sentence was manifestly excessive, that the judge failed properly to take account of mitigation (including delay and the argument that authorities failed to stop the offending earlier) and that concurrent sentences should have been imposed to respect totality.
• Argued the number of complainants was small relative to customers and that the judge ignored submissions by defence counsel.

Appellant (second applicant) — Conviction

• Asserted that trial counsel (Attorney Furlong) acted without consent in making offers to the prosecution, failed to present and examine evidence as instructed, was late so there was insufficient opportunity for instructions, and presented poor visual material to the jury.
• Criticised the junior counsel (Attorney Birch) for withdrawing late in pregnancy and for procedural failings (e.g. appearing without papers on remote links); said there was inadequate time to instruct fresh counsel; argued he would have been acquitted had he given evidence; repeated the encrypted server complaint.

Appellant (second applicant) — Sentence

• Argued the sentence was excessive and that the judge failed to take mitigation into account (including previous good character), overstated his culpability, should have ordered concurrent sentences, and failed to consider delay and the small number of complaints relative to customer numbers.

Appellant (third applicant) — Conviction

• Grounds advanced included alleged errors of law such as failure to appoint an intermediary, insufficient special measures and breaks during a long trial affecting health and participation, refusal of adjournments and severance, wrongful admission of a police interview, and that no case to answer existed for the money laundering charge. Also argued prejudice from the conduct of the second appellant's defence and delay.

The Respondent (the Crown) filed respondent's notices addressing each of the points raised; detailed responses from counsel (Attorney Furlong and Attorney Birch) were also provided where privilege was waived by an appellant.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court approached the renewal applications on the basis that the applicants were litigants in person and that the extensions of time sought were short; accordingly the court examined the substantive grounds to assess whether any appeal would be arguable. The court emphasized it could only consider matters raised in the original grounds of appeal and would not admit new points raised only in later memoranda.

On the encrypted server issue, the single judge had considered the question of prejudice arising from loss of data and had found that the appellants' account of the password storage was inherently implausible and inconsistent with evidence from IT experts. The single judge regarded the trial process as capable of accommodating any prejudice: the defence had the opportunity to explore the manner of the server seizure and the trial judge gave directions to the jury about how to treat any deliberate withholding of the password by defendants (i.e., that deliberate withholding would be their responsibility and not favour them, whereas uncertainty should be weighed in their favour). The court agreed that these directions were fair and that there was no arguable basis to find the convictions unsafe on that ground.

Regarding complaints about co-defendants' conduct and counsel decisions, the single judge's analysis (adopted by the full court) was that decisions about retaining or dispensing with counsel and whether to give evidence are matters for the individual defendant. The fact that a co-defendant's case was run differently from how another defendant would have liked does not, without more, give rise to an arguable ground of appeal. Where appellants criticised counsel's conduct, the court noted that those criticisms had been directly addressed by counsel's responses and by the Crown; the court found no arguable unfairness sufficient to render the convictions unsafe.

On grounds specific to the third appellant (intermediary, breaks, severance, no case to answer), the single judge had reviewed the expert evidence and case management: the expert did not support the need for an intermediary for communication reasons (the expert recommended breaks and clear explanation, which had been provided), no intermediary had been identified or given a report, and no particulars were provided to show how denied breaks or rulings without full argument caused unfairness. The trial judge's refusal of certain applications and case management decisions were treated as justified; allegations of bias were rejected as unsupported. The court reviewed the transcript of the no-case ruling and found no arguable appeal on that point.

On sentence, the court endorsed the single judge's application of the Sentencing Council guidance (the fraudulent trading sentences were compared to the fraud by false representation guideline) and the assessment of culpability and aggravating features. The court agreed that resumed offending after an investigation and warnings was an aggravating factor. The judge applied totality when deciding concurrent and consecutive elements, assessed the appropriate starting points and ranges, and reduced the money-laundering sentence considerably before ordering it to run consecutively. The court found no basis to conclude that the total sentences were manifestly excessive or wrong in principle given the sums involved, the duration of offending and the aggravating factors.

Holding and Implications

All applications for extension of time and leave to appeal were refused.

Direct holdings:

• The applications by the appellants to renew leave to appeal conviction and/or sentence were refused. The court upheld the single judge's reasoning in each case and declined to grant extensions of time where required.
• The court held the convictions to be safe and the sentences to be neither manifestly excessive nor wrong in principle.

Implications:

• The immediate effect is that the appellants' convictions and sentences, as imposed by the trial judge, stand.
• The opinion does not purport to create or change legal precedent; it applies established principles concerning the assessment of prejudice from lost evidence, the autonomy of defendants in choosing counsel and whether to give evidence, the requirements for establishing judicial bias, and the application of sentencing guidelines and totality. No new legal principle was announced in this opinion.