R v Sonny Milton

On 28 March 2022, Sonny Milton (“the applicant”) was convicted after trial of conspiracy to commit fraud by false representation and conspiracy to conceal criminal property. On 25 May 2022, he was sentenced to 4 years’ imprisonment on each offence concurrent and disqualified from acting as a company director for 5 years. The trial indictment named his co-conspirators as Atheer Al Rawe, Clive Ellis, Gary Grosvenor and Michael Gay and, subsequently amended during the trial to include “others unknown”.

Atheer Al Rawe and Clive Ellis were convicted on both conspiracy counts. Gary Grosvenor and Michael Gay were acquitted. On 11 July 2023, the convictions of Al Rawe and Ellis were quashed on appeal: R v Al Rawe and Ellis [2023] EWCA Crim 812. The judgment will be reported at the conclusion of the retrial. The retrial is fixed for 8 September 2025, with a time estimate of 4 weeks.

The applicant is the son of Ellis. He makes application, which was lodged on 21 June 2024, for an extension of time, namely 785 days, in which to apply for leave to appeal against conviction. His application has been referred to the Full Court by the Registrar.

Judgment in Al Rawe and Ellis was handed down by this Court on 11 July 2023. The delay in lodging the application for permission to appeal and an extension of time is explained in the advice on appeal and in a further document directed to be served by the Registrar. The reasons for the delay are given as: (i) mistaken legal advice as to merits of appeal immediately post-conviction: and, thereafter once this Court’s judgment in Al Rawe and Ellis was available, (ii) because counsel were unable to “settle grounds of appeal as swiftly... as would be desirable”.

The particulars of the delay are described in a letter from the applicant’s solicitor as follows. The applicant was notified of the appeal judgment by letter dated 24 July 2023 and advised that his legal team were considering whether the successful outcome of his co-defendant’s appeal and the contents of the judgment gave him an arguable basis for appeal. Due to “…pressure of work an initial draft of the grounds was not received until 16 January 2024, the solicitor with conduct suggested amendments on 6 February 2024 and again, due to pressure of work, counsel was unable to supply the amended grounds until 23 April 2024. The solicitor with conduct was then away on annual leave from 23 April to 7 May 2024.” Subsequently, the solicitors had difficulty in locating the applicant in the prison estate. As it transpired, he had already been released and on 17 June 2024, he telephoned the solicitor confirming that he wanted an application to appeal to be made on his behalf. As the solicitor recognises and as Mr Bindman candidly concedes, the delay is not attributable to the applicant.

Mr Shellard argues that Ellis and Al Rawe submitted grounds of appeal against conviction within time and uploaded their application onto the DCS on 14 June 2022. The applicant is the son of Ellis and: “It is surprising that there seems to have been no communication between the parties or that he and his solicitors were not aware either that Ellis and Al Rawe were appealing their conviction or that they have been successful in July 2023 so as to lodge an immediate appeal. The further delay after the judgment in the appeal before the application was madewas a further 10 months.”

Both Mr Bindman and Mr Shellard in their written submissions refer to the jurisprudence in this regard. In short, an extension of time is not a formality; it will only be granted if there is good reason for delay and ordinarily where the defendant will otherwise suffer injustice or, in certain circumstances, significant injustice (see R v Hughes [2009] EWCA Crim 841; R v Thorsby [2015] EWCA Crim 1; R v Johnson [2017] 4 WLR 104 and Towers and Hawkes [2019] EWCA Crim 1918).

We make clear that we are not satisfied that the reasons given for the delay from the delivery of the judgment in Al Rawe and Ellis and the lodging of the requisite application would of themselves provide good reason for the delay involved. Nevertheless, we agree that the applicant is not responsible for any of that delay, and we therefore go on to consider whether he would suffer injustice if he were not allowed to proceed with his application by reference to the merits of the substantive application for permission to appeal and appeal.

In due course the relevant facts of the offending alleged may be extracted from the judgment in Al Rawe and Ellis. In brief, for the purpose of this judgment, the case concerned an alleged boiler room fraud involving the sale of investment bonds and a property development company which were, in truth, without value.

Mr Shellard, on behalf of the prosecution, agrees that the case against the applicant is fairly represented in paragraph 17 of Mr Bindman’s Advice and Grounds of Appeal, that is as follows:

“The prosecution case against the Applicant was that he was a partner in the fraudulent scheme with Al Rawe and Ellis and that his role was to run the office and oversee the ‘sales’ team. It was said that he would have had full knowledge of the fact the sales

staff taking money from investors were using false names. Further, that he was familiar with the foreign exchange (CFX) accounts used, the prosecution said, to dissipate the proceeds of the fraud. The prosecution also relied on a transfer of £50,000 made by the

Applicant to his father (Ellis) in 2015 as being part of the same. Like Al Rawe and Ellis the Applicant did not appear on any of the documentation regarding the company which the prosecution said was deliberate.”

This is echoed in the judge’s summing-up:

“Mr Milton, say the Prosecution, on the other hand, was involved and he was the eyes and ears of the conspirators, making sure that things were going to plan through his direct day-to-day control of the office. He was to keep Mr Al-Rawe and Mr Ellis informed of what was going on. And, again, his actions suggest that he was not to feature in any direct way in company documents or bank accounts. And, the Prosecution say, being in complete control of what was going on in the office, he must have known of these individuals who were using fictitious names or who did not exist. He was, after all, in charge of the staff and ran the office, according to the evidence you have heard.

The Prosecution say he was active from the outset. He was familiar with a number of key services provided to London and London, such as the use of the CFX accounts, the involvement of Matt Parker in producing the brochures, something that he had previous experience with Vestico, staff members, such as Mr Brown, who was recruited from Vestico. And then, say the Prosecution, a rather telling transaction a year after in 2015 – and this is in volume 2 – one of the schedules shows that a year later in 2015 he transferred £50,000 to Mr Ellis and the day after Mr Ellis transferred £31,000 to Mr Al-Rawe. And, given his personal circumstances, if it is true, in other words that he had been taking drugs in the office, it was, at the very least, rather telling that he was effectively playing his part, say the Prosecution, in distributing the proceeds of this fraud a year later, siphoning off the monies from the accounts.”

Mr Bindman, on behalf of the applicant, argues that the applicant’s case was inextricably linked with Al Rawe’s and the prosecution at no stage put the that the applicant could be guilty of the offences independently of Al Rawe. The case for the prosecution was that this was devised as a fraudulent scheme from the outset, in which each defendant played differing but knowing roles, with Al Rawe as the mastermind and primary decision maker. If there was unfairness in the proceedings that prevented Al Rawe’s evidence from receiving a proper hearing, that had a direct effect on the safety of the applicant’s conviction.

The applicant stood or fell with Al Rawe as did Ellis. It was never suggested by the judge in summing-up that there was any evidence adduced or relied on by the prosecution to show that the applicant acted independently of the other two defendants in either setting up or operating the alleged fraudulent scheme. Whilst the jury were directed to consider each defendant separately in the appropriate way, the reality was that there was no distinction. The jury’s assessment of Al Rawe’s evidence was therefore crucial to the applicant as it was to Al Rawe himself.

Mr Shellard has very properly indicated that the prosecution case against the named conspirators commenced at the outset of the trial as a closed conspiracy, and it was only by reason of the judge’s intervention and without demur from defence counsel, that the indictment was amended to include “and others” to those already named in the alleged conspiracy. However, he makes no submission that there were others with whom the jury could find this applicant had conspired regardless of the non-involvement of the other four named co-conspirators.

We remind ourselves that the indictment did charge the applicant as a co-conspirator; the prosecution case was put explicitly on the basis that the applicant and his co-accused were involved in a conspiracy to commit fraud; and, that the applicant was not (nor were his alleged co-conspirators) indicted upon the substantive offence. As indicated above, Mr Shellard has not pointed to any evidence that there were “others unknown”. It is therefore artificial for this Court to address the extant application other than by considering what the effect of (a) of the acquittals of Grosvenor and Gay and (b) the quashing of the convictions of Al Rawe and Ellis has upon the integrity of the applicant’s conviction, since, in reality, the prosecution based its case upon a closed conspiracy. It is trite law that the applicant cannot conspire with himself.

The applicant has now served his custodial sentence, save that he continues to be on licence until 2026. He remains disqualified from being a company director and the conviction will have impact upon his professional and personal life. He therefore has good reason to seek to set aside this conviction if there be merit in the same.

We, in summary, agree with the Registrar’s reasons for referring this case to the Full Court and indeed the basis of the appeal made, that is:

“Whilst it may be that there were no specific interventions that directly impacted on this applicant’s role and, unlike Mr Ellis, he was present throughout the trial and chose not to give evidence, his case was inextricably linked with Mr Al Rawe’s.”

There is merit in the application for permission to appeal and the appeal itself. We find that not to allow the application for an extension of time would create injustice to the applicant. We extend time, grant permission to appeal and allow the appeal and quash the convictions in relation to both counts.

The appellant is to be retried on both counts with his co-accused Al Rawe and Ellis who stand their retrial in September 2025. Nevertheless, a fresh indictment must be served in accordance with the Criminal Procedure Rules 10.8(2) not more than 28 days after the date of this order. The appellant will be re-arraigned on that fresh indictment within 2 months, pursuant to section 8(1) of the Criminal Appeal Act, as amended by section 43 of the Criminal Justice Act 1988. The appellant is presently at large. We necessarily grant bail pending the retrial. It is necessary to remind you, Mr Bindman, that a fresh application must be made in respect of legal aid. Representation orders for retrial can only be made by application to the Legal Aid Agency, the address of which can be provided.