Gifford & Anor, R. v

Factual and Procedural Background

This opinion concerns renewed applications by two convicted defendants (the Appellants) for extensions of time to appeal and for leave to appeal against convictions, after earlier refusal by a single judge. In 2016 each Appellant was tried separately at The Court on related offences: a first trial (described as the mortgage fraud trial) concerning false income information to obtain mortgages over a property in The City, and a second trial (described as the money laundering trial) concerning transfer of criminal property. Before both trials the Appellants voluntarily absented themselves and fled abroad. The trial judges (Judge Tyson in the mortgage fraud trial and Judge Clark in the money laundering trial) each decided to proceed in the Appellants' absence; defence solicitors and counsel withdrew after that ruling. At the mortgage fraud trial the Appellants were convicted on various counts of obtaining services by deception and fraud; a co-defendant, Defendant (accountant), attended and was acquitted. At the money laundering trial one Appellant was convicted of conspiracy to transfer criminal property and the other Appellant was acquitted on the principal money laundering count. Sentences were imposed (three years for mortgage frauds for each Appellant; an additional six years for the money laundering conviction, to run consecutively in one Appellant's case), and confiscation orders were made. Arrest warrants and a European Arrest Warrant were issued in January 2016; the Appellants absconded, have not surrendered or served sentences, and remain at undisclosed locations abroad. Over eight years later the Appellants filed notices seeking extensions of time (exceeding 2,900 and 3,000 days respectively) and leave to appeal; the single judge refused and they renewed the applications before Judge Cavanagh.

Legal Issues Presented

1. Whether very lengthy extensions of time to file appeals should be granted to appellants who absconded before trial and remained at large for many years.
2. Whether leave to appeal against the convictions should be granted (i.e. whether the applicants have arguable grounds of appeal).
3. Whether the proposed representative without rights of audience should be permitted to make submissions at the hearing.
4. Whether bail should be granted in the event leave to appeal were granted.
5. Whether costs or a loss of time order should be made in respect of totally without merit renewed applications.

Arguments of the Parties

Appellants' Arguments

• They contended they only became aware of convictions when they received certificates of conviction and therefore filed appeals within a reasonable time.
• They attributed delay to psychiatric injury caused by the allegations, asserting incapacity to pursue appeals (but produced no medical evidence).
• They alleged inability to afford legal representation until introduced to their proposed representative.
• They contended the trials should not have proceeded in their absence.
• They raised various rights under the European Convention on Human Rights and other international treaties, and alleged general judicial bias/miscarriage of justice.

The opinion does not contain a detailed account of the opposing party's specific legal arguments beyond the court's consideration of the evidence and the judges' prior rulings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the applications principally on the basis that the Appellants deliberately absconded before trial and therefore caused the delay in seeking to appeal. The court concluded that the Appellants became aware of the convictions at or shortly after the trials in 2016 and that any later claimed discovery of convictions in 2024 would be a result of their own decision to abscond. The court rejected the Appellants' assertions of psychiatric injury because there was no medical evidence to support them, and rejected inability to afford representation as an implausible explanation for an eight-year delay.

On whether the trials could properly proceed in absence, the court found each trial judge had carefully applied the Jones test and given reasons. The court emphasised public interest in trials being conducted within a reasonable time, prejudice to the attending co-defendant (Defendant (accountant)), the predominance of documentary evidence, and that appropriate jury directions were given to mitigate unfairness from absence. The acquittal of one Appellant on the money laundering count was noted as evidence the jury reached considered decisions rather than automatic conviction for absenteeism.

On the merits of the convictions, the court concluded there were no arguable grounds of appeal. For the mortgage fraud convictions the court pointed to strong documentary evidence (including tax information) supporting falsity of income statements and noted that the Appellants had elected not to attend to present any defence. For the money laundering conviction the court identified overwhelming and uncontroverted evidence of receipt into a UK account of funds linked to an underlying fraud in foreign states, the absence of lawful explanation from the convicted Appellant, bank suspicious activity reporting and subsequent personal expenditure, and documentary evidence found by police linking the funds to the underlying fraud. The court considered suggested jurisdictional or indictment defects and other asserted rights under international instruments to be without support.

The court also addressed procedural applications: it refused the Appellants' proposal that Attorney Campbell (who lacked rights of audience) represent them by making submissions; it determined bail was not appropriate because no leave to appeal was granted and because the Appellants remained fugitives at undisclosed locations; and it considered but did not make a loss of time order because the Appellants are not currently serving sentences.

Holding and Implications

Holding: The court refused the applications for extensions of time and refused leave to appeal. The court also refused the application for the proposed representative to make submissions and declined to grant bail. The court made an order under section 18(6) of the Prosecution of Offences Act 1985 for the Appellants to pay the reasonable costs of the transcripts in the sum of £440.64. The court declined to make a loss of time order.

Implications: The direct effect is that the Appellants' renewed applications are dismissed and no appeal will proceed from these renewed applications. The decision reflects the court's view that lengthy delay caused by deliberate absconding is not a proper basis for extension of time, and that the trial judges correctly exercised their discretion to proceed in absence under the authority cited. The opinion records that the renewed applications were regarded as totally without merit but no loss of time order was made because the Appellants are not currently serving sentences. No new legal precedent was established beyond the court's application of existing authorities and statutory provision.