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Court of Appeal dismisses appeal relating to an undertaking not to prosecute and a Norwich Pharmacal Order

Published:

Re: R v Jones [2021] EWCA Crim 1195

The Appellant was convicted in the Crown Court in 2018 of one count of conspiracy to defraud DAS, her former employer. Her co-conspirators, Paul Asplin and David Kearns, were also convicted on this count having been previously employed by the same company. The conspiracy involved the three co-conspirators setting up and running another company, Medreport, to defraud DAS. The Appellant was sentenced to three years and nine months’ imprisonment, and was disqualified from acting as a director for eight years.

Facts

In July 2013, a settlement agreement was made under which DAS agreed ‘not to sue, commence, voluntarily aid in any way, prosecute or cause to be commenced or prosecuted against any other Party, any action, suit or other proceeding concerning the DAS Claims or the Medreport Claims’.

Documents proving the secret ownership of Medreport by the co-conspirators were acquired by DAS in 2015 as a result of DAS applying for and obtaining a Norwich Pharmacal order.

Criminal proceedings were commenced, and at trial the judge rejected an application to exclude the Norwich Pharmacal documents pursuant to section 78 of the Police and Criminal Evidence Act 1984. He held that there was nothing to suggest that the Appellant  had been led to believe that she would not be subject to criminal proceedings, either at the time of the Settlement Agreement or at the time of the Norwich Pharmacal application; that there was no unfairness in the way that the documents had been obtained; and that the documents were admissible against the Appellant.

The appeal

The Appellant appealed against her conviction on two grounds:

  1. The judge was wrong to reject the defence submission that the proceedings should be stayed; the prosecution was in breach of an undertaking given to the Appellant in 2013 not to prosecute her;
  2. Material obtained by the prosecution pursuant to a Norwich Pharmacal order should not have been admitted against the Appellant in circumstances where she was not clearly identified to the issuing judge as a potential suspect; there was no discussion about her privilege against self-incrimination; and no express permission to use the documents against her was sought or obtained pursuant to CPR 31.22.

HELD – dismissing the appeal, the Court of Appeal found that the judge was correct to rule against the Appellant on the section 78 application to exclude the documents. They had ‘no doubt that the trial was fair and that her conviction is safe.’

On the first ground, the Appellant submitted that the clause in the settlement agreement ‘was a promise by DAS which extended not only to civil but also to criminal proceedings. She argued that this agreement was binding, and that it had granted her immunity from prosecution.

The Court found in favour of the Respondent on the basis that the specific wording clearly related to civil proceedings and did not amount to a promise not to pursue criminal proceedings. The Court was particularly convinced by the fact that, if it had any substance, it would have been the first point to be raised. In fact, the point emerged at such a late stage in proceedings after ‘a whole galaxy of abuse of process arguments had already been deployed unsuccessfully’.

On the second ground, the Appellant submitted that the application for the Order did not suggest that she would be a potential defendant in any proceedings which might follow, and that as a result, she suffered prejudice on the basis that she could have otherwise resisted production of inculpatory documents.

The Court of Appeal rejected this argument. The Appellant had been advised by experienced criminal solicitors that would inevitably have considered and advised her about the possibility that the documents to be produced might incriminate her. There was also nothing in the application to suggest that the Appellant would not be a defendant in any proceedings should there be evidence against her. In fact, the Order permitted the use of the documents for the purpose of obtaining lawful redress for the wrongdoing identified in the witness statement of Ms McMahon; that included their use in the criminal proceedings against the Appellant. At no point did she claim privilege against self-incrimination.

Richard Whittam QC was involved in this case.