R v Damien Sartip-Zadeh & Ors

There are before us five applications which have been listed together. They are made by three members of the same family, two of whom seek to renew their applications for extensions of time and leave to appeal in relation to (a) conviction and (b) sentence after refusal by the single judge. The third applicant seeks an extension of time and leave to appeal against her conviction, also after such refusal.

On 5 April 2023 in the Crown Court at Leeds before Her Honour Judge Belcher, the first applicant, Damien Sartip-Zadeh was convicted unanimously of two counts of fraudulent trading (counts 1 and 2), one count of engaging in aggressive commercial practice (count 3) and one count of concealing, converting and transferring criminal property (count 4).

On the same day the second applicant, Dale Sartip-Zadeh, brother of the first applicant, was convicted unanimously of counts 1, 2 and 4. He had earlier been found not guilty on count 3 on the direction of the judge following her ruling that there was no case to answer. Also that day, the third applicant, Diane Sartip-Zadeh, mother of the two brothers, was convicted unanimously of count 4.

Since the applicants all share the same surname, we shall, without intending any disrespect, refer to them in this judgment by their first names.

On 15 May 2023 the trial judge sentenced the applicants as follows. Damien received a total sentence of nine years and six months' imprisonment, comprising eight years and six months on counts 1 and 2, and six months on count 3, all to run concurrently, with a consecutive sentence of 12 months on count 4. Dale was sentenced to a total of eight years' imprisonment, comprising a sentence of seven years on counts 1 and 2 running concurrently with each other, with a consecutive sentence of 12 months on count 4. Both Damien and Dale were disqualified from acting as directors for a period of 10 years. Diane was made subject to a suspended sentence order of two years' imprisonment suspended for two years with requirements.

Another co-accused, the brothers' father Mahmud Sartip-Zadeh was convicted on count 1 and sentenced to a suspended sentence order of two years' imprisonment suspended for two years. His application for leave to appeal conviction was also refused by the single judge and has not been renewed.

Detailed facts are set out extensively in the Criminal Appeal Office note. It is unnecessary to repeat them all here. In short, between 2013 and 2016 Damien and Dale set up and operated a website advertising and charging people for arranging to obtain a European Health Insurance card. In fact, such a card was available for no charge from the NHS. Trading standards got involved, warning letters were sent and eventually the website was shut down, whereupon the brothers started up again with a new website engaging in precisely the same activity. They operated that website from 2018 to 2019.

Count 1 related to their operation of the first website and count 2 to the second. When some of the victims tried to cancel, they were refused. If they persisted, they would be met with a threat of legal action and costs if they tried to charge a claim back from their credit card company. That formed the basis of count 3. Count 4 related to the funnelling of proceeds through the brothers' and the mother's bank accounts. The value of the fraudulent trading (being the total loss to customers) amounted to a total of £2,664,264 split between £1,446,538 on count 1 and £1,217,726 on count 2.

Each of the applicants is representing themself on these applications. We appreciate that it cannot be easy addressing this court as a litigant in person. We are grateful to each of them for the submissions they made to us today.

We read all the papers very closely before the hearing, in particular the memorandum to the judges that each applicant recently produced. We made it plain at the outset that we could not consider points raised which had not already been raised in the grounds of appeal. It is not open to us to consider any new matters. We are bound only to look at what is raised in each applicant's grounds. So, for example, the extensive assertions of judicial bullying made in Damien's memo was not raised in his grounds of appeal at all, nor in anyone else's grounds of appeal. We are not entitled to consider it on this appeal. Another point not raised in the grounds of appeal relates to a confidential email sent during the course of trial from Miss Breen-Lawton KC to a Head of Chambers elsewhere. It has been referred to by all applicants today, relying heavily on it to bolster their complaints about Mr Furlong (Dale's counsel at trial) even where complaints about him never featured in their grounds of appeal. We refer here to Damien's grounds of appeal. Miss Breen-Lawton expressed surprise that her confidential letter had been shared but as it had she dealt with it and provided an explanation which satisfies us that it has no further material bearing on the points raised either as to Mr Furlong's conduct or as to Dale's reasons for not giving evidence during trial.

As a preliminary point, we make it clear that as the extensions of time sought are relatively short and as the applicants are representing themselves, we have examined the substantive grounds of appeal to see if there is merit in them on the basis that if we were persuaded to grant leave for any appeal to be heard, then we would also grant the extension of time sought in order for that to happen. We now turn to the individual applications.

Damien challenges his conviction on essentially two grounds. First, he says that he was prejudiced at trial by the absence of potentially helpful evidence from the server referred to as KM/1. KM/1 could not be accessed having been locked and encrypted by the actions of a police examiner with the 100-character password required to unlock and decrypt the data recorded inside the server and nowhere else, according to the brothers.

Second, Damien says that his brother and co-defendant Dale's conduct in dispensing with his leading counsel, causing junior counsel to withdraw also, together with Dale's decision not to give evidence, prejudiced the conduct of his (Damien's) case, denying him the opportunity to defend himself fairly.

As to sentence, Damien argues that the total sentence was manifestly excessive. He says that the judge failed to take account of the submissions made by counsel on his behalf. She took insufficient account of his personal mitigation, omitting to recognise delay as mitigation or the fact that the authorities had failed to put a stop to his offending many years before. He points to the fact that the number of customers who complained was very small compared to the numbers who paid to use the website. He says that the judge should have imposed concurrent sentences and that she failed to have regard to totality.

The prosecution have responded to both sets of grounds in a Respondent's Notice which we have read.

Dale's written grounds of appeal are considerably longer. In essence the points he makes are these: His counsel, Mr Furlong misconducted his case by making an offer to the prosecution without seeking his consent, he did not present evidence in the way he should have done or examine witnesses as instructed, he was late to court each day so there was no time to give him instructions and contrary to instructions he presented a blurred image of Damien's house to the jury. He announced that Dale would not be giving evidence when no final decision had been made, and it is said he refused to work with Damien's counsel.

Dale says his junior counsel, Miss Birch, resigned without notice at a point when she was heavily pregnant and there had been no discussion about her pregnancy prior to that. Miss Birch is criticised for appearing on CVP without her papers (having wrongly left them behind in court). It is said that she was not proactive in court in the conduct of his defence. When counsel left, Dale says there was no time given to him to instruct fresh counsel. He says he could have been acquitted if he had given evidence and that he did not get a fair trial overall. He disagrees with the judge's directions given to the jury on counts 1 and 2. He makes the same KM/1 server argument as his brother Damien.

Turning to sentence, Dale argues that his sentence was excessive. He says that the judge failed to take account of any mitigation, particularly his previous good character. He says that his role in the offending was not high but was medium culpability in the guideline. The sentences should have been concurrent not consecutive, no account was taken of delay and the judge failed to consider the small number of complaints against the total number of customers.

In view of the criticisms Dale makes of his counsel, particularly in relation to conviction, he was asked to and did waive privilege. His counsel have provided detailed responses which we have read closely. The prosecution have responded to both sets of grounds by way of a detailed Respondent's Notice dealing with each of the points raised.

In lengthy and rather confusing grounds of appeal prepared by counsel against conviction, the following points appear: There were errors of law including the failure to appoint an intermediary to assist Diane at trial. This unfairly impacted her defence. There were insufficient measures put in place to assist her during the long trial process which had a negative impact on her health, particularly towards the end of trial. The judge unfairly rejected applications made by Diane's counsel for adjournments, for severance, for disallowing the admitting into evidence of her police interview and appropriate special measures applications to assist Diane in participating in the trial. Like Damien, she complains that the conduct of Dale's defence prejudiced her own. Lastly, she says that her application of no case to answer should have been allowed as there was insufficient evidence upon which to convict her of money laundering. Delay is also mentioned.

Again, the prosecution have responded in a Respondent's Notice addressing each of the points raised in Diane's grounds.

In refusing leave to appeal conviction, the single judge said this:

We agree with the single judge and cannot improve upon his reasons for dismissing the grounds. There is no merit in the appeal against conviction. We refuse the extension of time and refuse the application.

In refusing leave to appeal against sentence, the single said this:

Like the single judge, and for the reasons he gave, we cannot find that the total sentence passed for this offending taken together was excessive. The sums of money were very high and the period over which they were acquired through the websites was long. The second website was restarted in flagrant disregard of extensive warnings given in respect of the first. We refuse the extension of time and refuse the application for leave to appeal.

In refusing Dale's application for leave to appeal conviction, the single judge said this:

We agree and have nothing to add. The extension of time is refused and the application for leave to appeal against conviction is refused.

Refusing leave to appeal sentence the single judge gave the following reasons:

Again, we take the same view as the single judge and cannot improve upon his reasoning. If an extension of time is required, we refuse it and in any event we refuse the application for leave to appeal against sentence.

Having remarked on the rather rambling and unfocused grounds settled by counsel, the single judge went on to note that insufficient reasons had been given for the extension of time sought. He nevertheless addressed the merits of the grounds, saying this:

Having reviewed all of the papers to us, submitted with these grounds, which included a transcript of the judge's ruling of no case to answer, we agree with the single judge's assessment of the merits. In particular we have now considered the judge's ruling of no case and are satisfied that there is no merit in the suggestion that there is an arguable appeal arising from her dismissal of it. We agree with the single judge's assessment and with his reasons for refusing leave. The application for an extension of time is refused and Diane's application for leave to appeal against conviction is refused.

That deals with all of the applications before us today.