R v James Vaux

This application for leave to appeal against conviction has been referred to the full court by the Registrar.

On 17 September 2025, following a trial in the Crown Court at Leeds before His Honour Juge Khokhar and a jury, the applicant, James Vaux was convicted of conspiracy to commit theft. Three co-accused,, Daniel Mallinson, Ashley Wood and Andrew Brown had earlier pleaded guilty to that offence. They also pleaded guilty to a separate count of conspiracy to commit theft, covering a different period on the indictment, and to transferring criminal property.

The prosecution case was that the applicant was involved in one of the conspiracies by Wood, Brown and Mallinson (count 2 on the indictment) to steal asphalt (tarmac) from their employer, Hanson UK, a leader in the supply of aggregates for the construction industry.

The three ringleaders worked at an asphalt plant on South Accommodation Road in Leeds. They facilitated the removal of asphalt from the site in wagons, without payment and without keeping proper records. Mallinson was the plant supervisor, Brown the weighbridge clerk, and Wood the mixer operator at the site. Brown was responsible for issuing the tickets at the weighbridge, using the computer, and Wood was responsible for the loading of the vehicles at the weighbridge.

The thefts came to light after an anonymous tip-off. An investigator hired by Hanson's general manager discovered that between 24 May and 13 June 2019, five trucks, all owned by the same company, Henegan Holdings Ltd, (“Henegans”) had left the site with 17 loads of asphalt and the load was either under-recorded or not recorded at all. Footage from CCTV cameras installed at the weighbridge was compared with the tickets issued. This revealed that there were always three or four out of 100 loads which either did not register, or registered a lower amount than was weighed at the weighbridge. The police were informed and a police investigation commenced. As part of that investigation, the bank accounts of Mallinson, Brown and Wood were investigated and large payments into these account were followed up. The investigation revealed that substantial transfers were made into their accounts by a company named HV Civils & Construction Ltd ("HVCC") in 2017 and 2018.

The prosecution case in relation to the relevant conspiracy was that it took place between 15 May 2017 and 31 January 2018. At that time the applicant was a director of HVCC, which he ran with his business partner, Lee Higgs. Its business was the installation of fibre optics, and it used asphalt to make good the road after it had been dug up to lay the cables. HVCC used approximately five tonnes of tarmac a day, keeping it in a hot box to remain workable. It used a number of drivers to collect the tarmac from Hanson's depot. HVCC was a sub-contractor of Henegans.

The applicant had used Travis Perkins as an intermediary to purchase asphalt from Hanson, but when Travis Perkins ceased its trading arrangement with Hanson, HVCC opened a credit account directly with Hanson. Hanson's records showed that between August 2017 and July 2018 HVCC had purchased asphalt from Hanson to the value of £108,868.16 using that account.

Despite this, Hanson's financial investigation revealed that both prior to the opening of the credit account and thereafter, payments of substantial sums were made from HVCC's online bank account or from the applicant's personal bank account to Mallinson, Brown and Wood for tarmac, thereby cutting out Hanson.

The production manager for Hanson gave evidence at trial that Hanson either received payment via an account, or up front from the customer, or through builders merchants such as Travis Perkins if the customer did not have an account. Hanson offered no discounts to its customers. No sales would be conducted through any employee of Hanson, nor was there any reason why Mallinson, Brown and Wood would have been paid for asphalt under any system.

When the applicant was interviewed by the police, he declined to comment, he said on legal advice. His defence was that he was not dishonest. He or HVCC had purchased asphalt from the three employees, believing that they had authority to sell it in bulk at a discount. It did not occur to him at the time that there was anything suspicious about this. He said that he believed that all the payments were going to Hanson, regardless of who HVCC paid.

HVCC had experienced financial difficulties in 2018. It ceased trading, went into administration and was wound up on 27 September 2018.

A schedule of payments made by HVCC to Wood, Brown and Mallinson (exhibit JD/2) was compiled by a financial investigator, Jonathan Davies, who gave evidence at trial. It was opened to the jury by the prosecution. The schedule clearly showed that on numerous occasions – for example, on 21 July 2017, 16 September 2017, 17 November 2017, 27 November 2017 and 15 January 2018 – money was transferred from HVCC's account to each of Wood, Brown and Mallinson on the same day. Each payment had the reference "tarmac".

In his evidence the applicant described the three ways in which HVCC ordered and paid for asphalt, namely via Travis Perkins, by using the credit account, and directly from the employees.

In cross-examination, the applicant initially said that he was aware of the payments for the asphalt and that on several occasions he had made transfers out of HVCC's online banking account, but that mostly it was his ex-wife, Derren Vaux, who was the company secretary, who dealt with emails and paid the invoices. He said that they had been paying the employees directly before HVCC opened the credit account and indeed that it was the employees who had suggested opening the credit account. He said that the employees had their own credit account with Hanson and that when the credit limit was used up, HVCC would be asked to pay. HVCC received dockets from the employees to evidence the purchases, particularly to evidence the weight of the loads, which could be compared with what was on the invoice to ensure that the amount was correct. The applicant said that he thought that all of the paperwork had gone to HVCC's administrators. It was put to him that there was no such paperwork, and he denied it.

On the morning of 7 June 2025, before the directions to the jury were finalised, the trial judge raised with counsel the matter of the same day payments. He said to Mr Hedworth, who represented the applicant (as he did before us) that he could call his client to explain why there were these three payments on the same day to each of the employees, or he (the judge) would tell the jury that they could infer that the payment was being split between the three employees.

Having taken instructions, counsel said that he would recall the applicant. He complained at the time that the judge was entering the arena by making prosecution points to the jury. The judge demurred. He pointed out that he would only be telling the jury that a document placed before them by agreement indicated something that was an issue in the case.

The applicant was recalled and asked about the payments on the schedule. He said that he was out doing the digging work and liaising with clients, and that the paperwork was dealt with by his ex-wife Derren, who was the company secretary, and by Mr Higgs. Invoices would come through, or there would be a phone call seeking payment, and Derren would make the payments through the online account. He (the applicant) left it to Mr Higgs to look at the invoices.

He was shown three payments made on the same day, 19 August 2017, to Mallinson, Brown and Wood, and he said that he did not make those payments. In cross-examination he said that he knew nothing about payments. When asked about a payment made to Brown by transfer from his personal account, he said that it could have been made by Derren. In terms of the paperwork, he said that he really never looked at it. Derren would have given it to the company's accountants. He did not receive any telephone calls from Mallinson, Brown or Wood. Derren or Mr Higgs had mentioned them to him. It would be Derren who checked whether the dockets that were received with the loads purchased through Mallinson, Brown and Wood reconciled with the invoices.

It was put to the applicant that at no point in his interview or in his defence statement had he raised the existence of those underlying documents. He said that he expected the police to look into HVCC's accounts and take the matter up with the liquidator.

There are three proposed grounds of appeal against conviction. The first is a complaint about what is described in the Advice and Grounds as the judge's "improper intervention" in respect of the same day payments which led to the applicant being recalled to give evidence. Mr Hedworth submitted that this was not a matter for the judge; that it was highly prejudicial because of the timing, the jury having been told on the previous day that the evidence had concluded; and that the "inevitable effect was to convey to the jury that the judge was sceptical of the applicant's account".

This ground is unarguable. The case against the applicant was strong. The schedule was in evidence and had been opened to the jury. The payments to the three men were always a matter in dispute. If there were three separate payments on the same date, each one of which had been invoiced to HVCC in the same way as invoices coming directly from Hanson, then as a matter of logic each of the payees would have had to raise a separate invoice for what was due to him, which made little sense if all the money was going to Hanson. The judge was entitled to comment upon the schedule (including the inferences to be drawn from the entries in it) in his summing up, regardless of whether, by an oversight or otherwise, the prosecution had failed to put the points squarely to the witness.

In affording the applicant an opportunity to deal with this matter, which he was under no obligation to do, the judge was being scrupulously fair, and he was not descending into the arena. Far from being prejudicial to the applicant, the judge’s intervention afforded him the chance to give an explanation for the split payments, which he did, namely that he had no knowledge of the payments and was not responsible for making them. It was a matter for the jury whether they accepted that explanation.

In summing up the evidence, the judge reminded the jury that defence counsel had made the point that it was not clear who was making the payments on the schedule. He told them that that was why the defendant had come back to the witness box. He pointed out examples of entries on the schedule when payments were made on the same day to each of the employees and said that one of the things that the jury would have to decide was why the payments were being split if all the payments were being made to Hanson. He then provided an accurate and fair summary of what the applicant had said about this, namely that it was Derren Vaux or Lee Higgs who had made these payments.

We do not consider that it is arguable that the judge stepped into the arena, or that he prejudiced the defence by acting in the way that he did.

The second complaint is that the judge gave an improper direction to the jury which undermined the burden of proof. In the Advice and Grounds it is alleged that the applicant was "heavily criticised by the judge in front of the jury for failing to approach the liquidators to obtain the invoices and thereby prove his innocence".

Having carefully read the transcript of the applicant's evidence, it is clear that there was no such criticism made by the judge, whose only interventions were to seek clarification of answers given to questions by counsel. In the first part of the summing up, the jury were properly directed on the burden and standard of proof. They were also directed in the usual way to ignore any view the judge appeared to express about the evidence, unless they agreed with it. They were expressly directed that the passage of time may have put the applicant at a serious disadvantage. They were also given proper legal directions about the applicant's failure to mention facts in interview on which he now relied for his defence. Those facts included the fact that dockets, receipts or emails were issued by the employees to HVCC when asphalt was obtained from them, and were retained by HVCC for their accounting purposes.

In his summing up of the evidence after the defence closing speech, the judge dealt with the evidence of the officer in the case. This was when he dealt with the absence of any reference in interview or in the defence statement to the dockets and invoices that the applicant said that HVCC had received from the three employees. He said that defence counsel had criticised the police for not approaching the administrator, and he made the point that they could not ask the administrator for these documents when the applicant had never mentioned them before. It was in that context that the judge observed:

The point that the judge was making had nothing to do with the failure of the applicant himself to obtain the paperwork from the liquidator. It was a response to the criticism of the prosecution for not making its own enquiries of the liquidator. There was nothing unfair to the applicant in pointing out that the prosecution could not ask for documents they had no reason to suppose existed until he mentioned them in the witness box. That is not reversing the burden of proof.

The applicant's evidence about the invoices was accurately and fairly summarised. So, too, was his explanation for not mentioning them in interview or in the defence statement. The judge made no comment about any of that evidence. There is no substance in the second proposed ground of appeal.

The third ground is that the judge's summing up was unfairly weighed in favour of the Crown. We have read the summing up carefully. There is no substance in this complaint either. There was a lot of evidence, and the time spent in summing up fairly reflected the volume of material. It was completely even-handed.

Despite Mr Hedworth's submissions, none of the proposed grounds of appeal has a real prospect of success. We are satisfied that the conviction is safe. Accordingly, the application for leave to appeal is refused.