Nigel Rush and Anor v R

The prosecution alleged that Rush was key to the organisation and structure of the supply side of metal goods to WNL. He was in control of EN and was directing others within that chain. His importance to the cheat was illustrated by documents found at his home and on his work devices, as well as the communications and meetings that he was involved in. He was one of the few individuals who attended both the Manchester and Birmingham meetings, and the only one to attend Manchester from the metals side (at trial both the audio recordings and agreed transcripts were adduced in evidence).

Over the course of the two meetings, all matters of the conspiracy were discussed; the prosecution case was that Rush was privy to those discussions. The Manchester meeting lasted the whole day and the attendees, all significant players, spent it openly discussing ways in which to adjust the structure and operation of the fraud so as to improve profitability and reduce the chances of getting caught by the Revenue. There was in particular open discussion about the use of fake VOIP and the fake banking platforms.

Most of the cathode deals did not directly involve EN. EN only featured in three of the 25 cathode deals on the face of the invoices and then only because the invoices were for a commission payment. Nevertheless, Rush was shown to be a significant beneficiary of the proceeds of the cheat, as evidenced by the Metals Breakdown 2 spreadsheet (“MB2”) found in documents seized from WNL. Although EN only featured as the supplier in the copper rod deals (of which there were 42 in the indictment period), it was significant that the appellant was named on MB2 on the cathode tab that allocated sums arising out of WNL's cathode deals (where EN did not ostensibly feature in the supply chain).

The evidence from the Birmingham meeting demonstrated that Rush had a significant role in the cathode deals.

In addition to his role in these contrived metal chains, he had also (whether on his own or on behalf of others, or more likely both) assisted in providing investment, which in turn was used by WNL to fund their trade in real goods.

Leighton, Dobson and Shipton were effectively investors in the cheat rather than being directly involved in the trade in goods and services that it relied on. In essence, through the various companies that they operated they loaned WNL some of the money that it needed in order to pay for the goods WNL was going to sell in the UK (principally the copper rod and cathode). In return they were paid a share of the VAT that the trade in those goods generated for WNL and which was dishonestly retained.

The three men were linked through their joint involvement in various companies that were based in the UK and in Malta. The UK companies were Berkshire Motor Centre Ltd, Yo2Mo Ltd (formerly called Redwick Consultancy Services Ltd) and Redwick Business Solutions Ltd (formerly called Redwick Tech Solutions Ltd). The companies connected to Malta were principally Minerali Supply Ltd and its holding company, Minerali Supply Holdings Ltd. The prosecution case at trial was that through these companies, the three men were involved in providing WNL with loans to a total of €688,000. These loans were provided for profit, and substantial repayments were made by WNL.

Leighton was said to be one of Dobson's right-hand men and was closely connected to the other right-hand man, Shipton. At the beginning of 2013 Leighton, together with Shipton, was brought into the conspiracy by Dobson, and attended the meeting in Birmingham with Dobson.

At the start of Trial 2, the prosecution applied to put before the jury the convictions from Trial 1, pursuant to section 74 of the Police and Criminal Evidence Act 1984. The Defence for Rush resisted the application, arguing that whilst the convictions from Count 1 proved the fact of a conspiracy, they could not establish the scope of the conspiracy. Presenting the convictions to the jury in Trial 2 as establishing the existence of the conspiracy would undermine a potential defence for Rush in that if all the prosecution could prove in Trial 2 was the existence of a small conspiracy around the retention of VAT involved in metals trading then Rush would be entitled to be acquitted. This was an issue which Adam Kane KC had identified for the jury in his opening address for the defence, without objection from the judge at the time.

The judge ruled that the convictions from Trial 1 were to be admitted, since the conspiracy which was proved by those convictions was the same conspiracy that the prosecution sought to prove against the defendants in Trial 2, stating as follows:

“The case for the prosecution (in each trial) is that this is a conspiracy to cheat which involved (an agreement) to steal output VAT received by Winningtons for genuine sales of electrical goods sourced through Osmosis and metals through inter alia Ernest Nortcliffe & Sons and Jeunessevite, off-setting the input tax generated on its fake VOIP trade. The prosecution case is that there was one conspiracy (not three), with different strands operating in order to enable the cheat to work. It is only by off-setting the fake with the real and generating the sale in the tangible goods (with real money) that there is any purpose in generating the fake VOIP trade. One is used as a device to off-set the other but will only ‘work’ if all the components or strands are in place”.

Following this ruling, Mr Kane told the court that his client would not be giving evidence. At the end of the prosecution case this remained the position, the jury were told and the judge went through the usual process of confirming with Mr Kane, in front of the jury, his client’s understanding of the implications of his not giving evidence.

After discussion with counsel, these were the directions concerning the conspiracy which the judge gave to the jury:

“15.

A conspiracy is simply an agreement between two or more people to enter into a course of conduct which will necessarily amount to or involve the commission of an offence by one or more of the parties to the agreement, with the shared intention (or common purpose) that the agreement should be carried out. It is the agreement itself which is the offence. It is the course of conduct agreed upon which is critical, namely cheating HMRC of VAT through WNL’s VAT returns.

16.

‘Cheating the Public Revenue’ does not necessarily require a false representation either by words or conduct. Cheating can include any form of fraudulent conduct which is intended to divert money from the Revenue (HMRC); and is intended to deprive the Revenue of money to which it was entitled. It does not require a positive act of deceit, and can be committed by omission e.g. a deliberate failure to account for VAT.

17.

It is accepted that there was a conspiracy to cheat the Revenue of VAT by dishonestly submitting false VAT returns by Winnington Networks Ltd (WNL) . You must decide, in respect of each of these five defendants, whether he joined in that conspiracy; and that by doing so, he made a deliberate and intentional decision to partake in that fraudulent conduct.

18.

It is the joining of the agreement with the requisite mental elements that is the participation, no other participation is required. The prosecution does not have to prove that a defendant played an active part in putting the agreement into effect through the submission of WNL’s VAT returns, nor that the defendant was aware of the intricacies and mechanics of how that was done. Those who are closest to the centre of a conspiracy will be likely to have a greater knowledge of the broader picture than others, but the prosecution case is that there was only one broad agreement, with different strands, one of which was the metals trade. “

The accompanying Route to Verdict was as follows:

Mr Kane, for Rush, advanced six grounds of appeal. There was a degree of overlap between them all, centring on the scope of the conspiracy and what the prosecution needed to prove before the jury could convict.

Mr Kane’s first ground was that the judge wrongly directed the jury that they did not need to know about the mechanics of how the revenue was to be cheated. He argued that the jury should have been directed that they needed to be sure that non-existent VOIP trades were to be used to off-set the output VAT generated by the metals trading. Mr Kane submitted that the course of conduct amounting to an offence, for the purposes of the alleged conspiracy, was the submission by WNL of false VAT returns. In this case the falsity of the returns turned on off-setting of bogus VOIP trades. It was of the essence of this conspiracy, therefore, that parties to it had to be shown to be aware of off-setting using false VOIP trades. The VAT returns were correct (as HMRC accepted) in their identification of the output tax generated by the metals trades; it was only the non-existent VOIP trades generating the balancing input tax which gave the returns their false character. Mr Kane pointed out that if Rush did not know about the false input entries on WNL’s returns then he could only have known that WNL was retaining the output tax, which is of the nature of a missing trader type fraud, and not an off-setting fraud. He submitted that this was a critical difference, giving rise to a completely different course of conduct.

John McGuinness KC, for the prosecution in response, submitted that the directions which the judge gave were entirely consistent with the particulars of the conspiracy to cheat set out in the indictment. This was charged as a single broad conspiracy – the fact that 22 defendants were divided up and tried over 4 separate trials made no difference to the essential case respecting the conspiracy they were alleged to have joined. Referring to the cases of R v Ali [2011] 2 Cr App R 22 and SFO v Papachristos [2014] EWCA Crim 1863 Mr McGuinness argued that it was proper to have charged the conspiracy broadly, alleging a cheat which involved layers of companies and trades employed in such a way as to permit WNL to serve false returns and thereby to retain VAT which it should have paid to the Revenue. The cheat was in the retaining of VAT by means of false returns. It had been part of the prosecution case at trial that Rush (and Leighton), having been present at the Birmingham/Manchester meetings, knew about the off-setting of input tax falsely generated by bogus VOIP trades, but it was not necessary to the jury’s decision for them to be sure that any defendant knew precisely how WNL was going to falsify its returns in order to retain the output tax.

Mr Kane’s second ground is that the judge misdirected the jury as to the course of conduct upon which the conspirators had to agree, eliding the agreement to a course of conduct and the intention thereby to commit an offence. We understand him to have accepted at the hearing that this second ground is founded upon the same submission as the first, namely that it was an essential element of the course of conduct relied upon by the prosecution that the revenue was cheated through off-setting of input tax on non-existent VOIP trades.

Mr Kane’s next ground is that the course of conduct upon which the judge directed the jury differed substantially from the case as it was opened by the prosecution. In its opening the prosecution had explained at length, and had placed considerable emphasis upon, the mechanics of the VOIP off-setting in the VAT accounting done by WNL. The prosecution alleged in opening that the defendants knew of the non-existent VOIP trades, and of the off-setting of input VAT from those trades against the output VAT generated by the (real) electronics and metals trades. This had been the nature of the case advanced against the WNL defendants at Trial 1. Knowledge of metals trading was not required to be shown against the defendants in Trial 1. Yet in Trial 2 the jury were told that they could ignore how the output VAT was in fact falsely retained but that they needed to be sure that metals trades were involved. Mr Kane submitted that there was an obvious danger of the jury arriving at conclusions about a sub-plot involving metals trades rather than being sure about the wider conspiracy which centred on false off-setting through bogus VOIP trades.

Mr McGuinness’ response was that the prosecution had naturally opened and called evidence of the methods used by WNL to cheat the revenue, together with evidence of the defendants’ knowledge of off-setting via bogus VOIP trades through their attendance at the covertly recorded Birmingham/Manchester meetings. This was evidence supporting their involvement in an agreement to cheat the Revenue, but it was not a distinct element of the conspiracy which was charged and which the prosecution had to prove.

The fourth ground asserts that the judge’s decision concerning the scope of the directions to the jury at the end of Trial 2 was inconsistent with her reasoning in deciding to admit the convictions from Trial 1. Her reasoning at that time included the following passage:

“...it is the wider conspiracy that was tried in Trial 1 and is being tried in Trial 2 and will be tried in all the subsequent trials. Mr Rush’s involvement in a subplot or conspiracy which did not include an involvement in the wider conspiracy would therefore be a defence to the charge”

Mr Kane pointed also to an exchange in which the judge had observed to him that “If Mr Rush’s account that he was not aware of the cheat is or may be right, then the jury will acquit. If, on the other hand, they are sure he was a party to this and not to another conspiracy they will convict”. He submitted that the judge had appeared to go back on this at the end of trial when formulating directions. She gave directions addressed to the wider conspiracy alleged by the prosecution, at the same time indicating that she would not permit defence counsel to suggest or address a different conspiracy. Mr Kane argued that this had given rise to an inconsistency in what the jury were told.

Mr McGuiness in response highlighted the distinct background to each of the trials: Trial 1 had concerned WNL personnel involved in the accounting and false off-setting, thus the evidence had focussed on this aspect of the overarching conspiracy. The defendants in that trial had not been involved in any metals trades, so it had not been necessary for the evidence to encompass that aspect of the case. By contrast, Rush, Leighton and the other defendants in Trial 2 had been centrally connected to the metals trades generating the output VAT which WNL falsely retained. Rush’s defence statement joined issue with the prosecution as to whether or not the conspiracy proved in Trial 1 had involved the use of metals trades. The defence objection to the admission of the Trial 1 convictions at Trial 2 had been on the basis that the conspiracy established by the Trial 1 convictions did not and could not demonstrate that the conspiracy had involved metals trades. It was for this reason that the Route to Verdict had included question 2 (above) asking whether the jury was sure that the conspiracy had including using metals trading as a means by which WNL would steal the VAT.

Grounds 5 and 6 are linked with each other and to Ground 4, above. By grounds 5 and 6 Mr Kane submits that the judge wrongly prevented the defence from inviting the jury to consider whether the evidence disclosed an agreement to a course of conduct which was lesser and different to the course of conduct which the prosecution alleged. Mr Kane said that this had prevented him from advancing submissions to the jury based upon her earlier observations (above) as to the possibility of an alternative conspiracy. If the evidence showed, as he wished to suggest to the jury that it did, no more than that Rush knew of VAT being retained from metals trades, then he wanted to be able to invite the jury to conclude that although his client may have been guilty of a “lesser” conspiracy, this was different to the wider conspiracy alleged by the Crown, of which Rush was entitled to be acquitted. The judge had been wrong to do so given her earlier observation, when ruling on the admission of the convictions, that “Mr Rush’s involvement in a subplot or conspiracy which did not include an involvement in the wider conspiracy would therefore be a defence to the charge”. Mr Kane further submits that this was a change of approach by the judge which, if the defence had known of it earlier, would have affected the advice given to Rush on whether to give evidence.

The prosecution response is that the judge did not err in the directions which she gave to the jury and that there was no inconsistency. Mr McGuinness points out that as there has been no waiver of privilege there is simply no basis upon which this court can properly consider Mr Kane’s last point.

Mr Hines KC and his junior appeared pro bono for their client, in the best traditions of the Bar, we are grateful to them for their assistance. Counsel for Leighton sought to renew the application for leave in respect of two linked grounds: first that the judge misdirected the jury in relation to what section 1 of the 1977 Act required the prosecution to prove; second that the judge should have directed the jury in such a manner as to highlight the need for executory intent by directing them that they should be sure that Leighton agreed to participate in a course of conduct, either actively or passively, which if carried out would necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement. Her direction given to the jury at the start of the trial had met his concerns. However when giving the jury final legal directions at the end of the evidence, the judge had wrongly, and confusingly, directed them that “It is the joining of the agreement with the requisite mental elements that is the participation, no other participation is required” (at §18 of her written directions, set out at [32] above). Relying on the case of Anderson [1986] AC 27 Mr Hines emphasised the distinction between the elements of (i) the agreement and (ii) the course of conduct. He suggested that the judge’s direction had wrongly elided these, and that her use of the words “joining” or “joined” had continued the confusion. Leighton’s defence at trial, supported by Mr Dobson’s evidence, was that although he had assisted Dobson with financing metal trading, he had never done so knowing about WNL’s cheat. The evidence established that Leighton was present when the cheat had been discussed at the Ramada Hotel meeting, but Mr Dobson’s evidence was that following that meeting Leighton had said that he wanted nothing more to do with the metals trading and that he had had no further involvement. The need for executory intent to be shown in relation to the course of conduct, as discussed by Lord Bridge in Anderson, was thus of particular relevance to Leighton’s defence. The judge’s directions had failed to make this requirement sufficiently clear.

Mr McGuinness in response submitted that the judge’s directions were correct and in accordance with what is required by section 1 of the 1977 Act. The defence case – that Leighton’s involvement in assisting Dobson with loans for metal trading occurred only before the meeting at the Ramada Hotel and ceased immediately after that meeting – was put before the jury by counsel and summarised by the judge at the end of her summing-up. In convicting Leighton, the jury had clearly not accepted Dobson’s account of events, and, like Rush, Leighton had answered no comment in interview and had not given evidence. Mr Hines had not made a submission of no case at the end of the prosecution evidence, accepting that there was evidence upon which his client could be convicted. The jury were properly directed and had been satisfied that Leighton had joined the conspiracy in accordance with the judge’s directions.

Section 1 of the 1977 Act provides that:

The statutory language makes it clear that:

It is clear from the authorities of Ali and Papachristos, above, that the way in which a conspiracy has been indicted is key. The prosecution may decide to indict a conspiracy broadly or more specifically, depending on the evidence. Ali involved the trial of defendants said to have agreed to commit terrorist acts. They were charged with conspiracy to murder (Count 1A) but at the close of the prosecution case the judge gave the prosecution permission to amend the indictment to include a charge of conspiracy to murder by the detonation of IEDs on board transatlantic passenger planes (Count 1). Some of the defendants were convicted at trial of Count 1A but the jury were unable to agree in respect of Count 1. At a re-trial they were convicted and appealed arguing autrefois convict, i.e. that their conviction on the broader charge of conspiracy to murder precluded their re-trial on the narrower charge of conspiracy to murder by detonating IEDs on aircraft, the latter effectively being subsumed in the former. In dismissing the appeal on this point Thomas LJ (as he then was), giving the judgment of the court, said this (at [38]):

“…The general practice of the Crown is to formulate a conspiracy in broad terms; a jury is simply concerned to decide whether the person was a party to a conspiracy formulated in broad terms. It is for the judge, who hears the trial, to determine when he comes to sentence what role each played in furthering it. To take the common example of a conspiracy to import drugs into the United Kingdom; the Crown would ordinarily charge those indicted as parties to a conspiracy to import drugs; those indicted might include a courier who has participated in one journey, more senior persons within the hierarchy and the one or two persons who were at its centre. It is sufficient for the Crown to obtain a conviction to prove each was a party to the conspiracy to import; it is for the judge, at the end of the trial, to determine whether a particular defendant is a courier or at the apex of the conspiracy and therefore whether he may receive a sentence of five years or one of 25 years.”

At [62] to [63] the court observed as follows:

“62.

It would, in our judgement, be possible in law to have charged one single conspiracy to murder, even though there was a distinct conspiracy to murder by detonating IEDs on transatlantic aircraft. It would have been open to the Crown to prove a conspiracy to murder; that would have been sufficient for the jury to convict and for the judge to have taken upon himself, as he would do in the ordinary case, the burden of deciding the role each played in the furtherance of the conspiracy and the importance of that role. In the usual case, experience has shown that this is the better course where the agreement is to commit the same substantive offence. The position in the case of agreements to commit different substantive offences was considered in Roberts and Taylor [1998] 1 Cr App 441 at 449–50; it is for the Crown to determine whether to charge one conspiracy or more than one (cf R v Wells [2010] EWCA Crim 1564 where the court expressed the view it was fairer to charge more than one conspiracy where different substantive offences (robbery and theft) were involved).

63.

However, in the exceptional nature of this case, it was permissible for the Crown to charge two conspiracies though each involved an agreement to commit the same substantive offence so that the jury could determine whether a conspiracy to detonate IEDs on transatlantic aircraft had been established in contradistinction to a conspiracy to murder in another way and, if so, which of the defendants were parties to the distinct conspiracies.”

Papachristos was a case involving defendants charged with conspiracy to corrupt. The issue was whether a defendant could be guilty of the broader conspiracy if his part related only to a particular product (TEL) and he was unaware of the wider agreement corruptly to procure contracts for other products. For the defence it was argued that a conspirator who only contemplated corruption in relation to TEL could not property be convicted of a charge which included other products. The court dismissed this argument. After referring to Ali, Fulford LJ went on at [63]:

“It follows that those charged with a conspiracy may have sought to achieve the common aim by different means, and it is not necessary to prove that all of the conspirators were aware of the full range of ways in which the agreement was to be executed. For some, the conspiracy may have had a narrower scope or it may have involved fewer people than the prosecution’s case as put at its widest. What matters is that there is a shared common purpose or design in conformity with the charge.”

In the present case the prosecution charged a wide conspiracy to cheat the revenue by “dishonestly inducing or facilitating the submission of false VAT returns by [WNL]”. Mr Kane’s case is that implicit in the charge that participants induced or facilitated false returns was a requirement to prove that each knew in what respect the returns would be false i.e. that they knew WNL would seek to off-set non-existent input tax said to have been generated by (non-existent) VOIP trades. But the underlying offence of cheating the revenue is pleaded in terms of, and focused upon, the wrongful retention of funds otherwise due to the Revenue. We do not accept that the way in which the offence was charged required the prosecution to prove knowledge/intention by all conspirators of the means by which those monies were to be retained i.e. through off-setting non-existent input tax from non-existent VOIP trades. The fact that the jury at Trial 1 was told of the difference between an off-setting fraud and a missing trader fraud when the case was opened to them is nothing to the point: the directions as to the elements of the conspiracy given to the jury at Trial 1 were the same as the directions for the jury at Trial 2 (save that the jury at Trial 2 was also directed to answer a specific question about metals trading). The legal directions at Trial 1 did not include a direction requiring the jury to be sure that participants to the conspiracy knew of the off-setting through non-existent VOIP trades, nor was it necessary for the jury at Trial 2 to be given such a direction. The underlying course of conduct was the cheat, i.e. depriving the revenue of money which ought to have been paid. The jury at Trial 2 did not need to find that participants were aware of the precise method by which the agreement to cheat the revenue was to be carried out before they could convict.

Mr Kane’s Grounds 1 to 3 turned on his case that the jury at Trial 2 should have been directed that they need to be sure Rush knew about the off-setting of non-existent VOIP trades. For the reasons we have given above, we reject this argument; Grounds 1 to 3 are accordingly dismissed.

Grounds 4 to 6 engage the question of whether, having admitted the convictions from Trial 1 the judge should have invited the jury to consider, or at least permitted the defence to invite the jury to consider, whether the metals trading formed a separate conspiracy. It is said that her failure to do so left an inconsistency between her ruling at the start of trial and her ruling on directions to be given to the jury at the end. Again, we disagree. Both rulings appear to us to have been entirely correct and we see no inconsistency. Trial 1 focussed on the evidence relating to the accounting for VAT within WNL because the defendants at that trial were employed at WNL and were thus directly involved in submitting false returns. The defendants at Trial 2 were involved in one of the supply chains (metals trading) generating the output VAT which WNL dishonestly retained. The evidence at Trial 2 inevitably focussed on the metals trading part of the conspiracy. At the hearing Mr Kane did not appear any longer to argue that because Trial 1 had not encompassed any evidence of metals trading the convictions could not demonstrate a conspiracy which included metals trading. Nor did he seek to suggest that the judge was wrong to have admitted the Trial 1 convictions into evidence. His case was that the evidence at Trial 2 was equally consistent with a sub-plot centring solely around retaining monies due to the Revenue from metals trading, whether or not from false returns. He submitted that he should have been allowed to suggest to the jury that if they were satisfied that Rush was part of a separate, smaller, agreement to withhold tax from metals trading alone then he would be not guilty of the wider conspiracy. He said that the judge, having contemplated the possibility of a lesser agreement during the argument about the Trial 1 convictions, erred in refusing to permit him to lay the possibility of such a lesser agreement before the jury when making his closing speech.

We do not believe that the judge erred. As she pointed out, the conspiracy which the prosecution alleged against Rush was the same at each trial. It was a broad conspiracy involving three strands of activity generating output tax which WNL dishonestly retained by submitting false returns. The underlying course of conduct was thus a cheat on the revenue. The task for the jury was to consider whether each of the defendants at Trial 2 was a part of that broad conspiracy. The defence for Rush had been entitled to, and had, put the involvement of metals trading in the wider conspiracy in issue. The judge rightly directed the jury that they needed to be sure that the overarching conspiracy involved metals trading. But that is different from making a positive suggestion to the jury that Rush was, or might have been, part of a different criminal conspiracy altogether. Rush gave no comment interviews and elected not to give evidence at trial, so there was no positive case which Mr Kane could have run on his behalf. Moreover, as Her Honour Judge Plaschkes KC pointed out at the hearing, Rush’s defence statement had denied unequivocally being a member of any conspiracy with WNL, whether the broad one alleged by the prosecution or indeed any other. In our view the judge was right to debar Mr Kane from raising the possibility in his closing speech of his client being a part of an alternative conspiracy. The directions which the judge gave rightly required the jury to focus on the broader indicted conspiracy and the questions which she raised in the route to verdict for them to consider were correct. Question 2 specifically directed the jury to consider whether the broad conspiracy included metals trading and, if so, then question 3 required them to consider whether Rush joined that broad conspiracy. For these reasons we dismiss Grounds 4 and 5. Having dismissed Grounds 4 and 5, 6 falls away. Rush’s conviction is not unsafe.

In Anderson, Lord Bridge said this (at p.38E-F):

“But, beyond the mere fact of agreement, the necessary mens rea of the crime is, in my opinion, established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice; nothing more is required”

The apparent requirement for a defendant to be shown to have intended to take an active part in the agreed course of conduct has been the subject of academic criticism - see for instance Blackstone’s Criminal Practice 2026 para A5.56. Lord Bridge’s dictum was examined by this court in Siracusa (1990) 90 Cr App R 340 which held that the passage we have cited above did not form part of the ratio in that case. The court in Siracusa explained (at p.349):

“Participation in a conspiracy is infinitely variable: it can be active or passive…Consent, that is the agreement or adherence to the agreement, can be inferred if it is proved that he knew what was going on and the intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity”

The position is in our view correctly summarised in Smith Hogan & Ormerod’s Criminal Law (17th Edn, 2024) Chapter 11.3.3.1:

“The offence lies in agreeing with another that a crime will be committed. That is different from agreeing that D will commit the crime themselves. D can be convicted of a conspiracy even though they personally will not be participating in the commission of the substantive offence”.

Under section 1 of the 1977 Act it is the agreement that is criminalised, not action(s) taken in furtherance of the agreement. A defendant does not have to be shown to have pursued the course of conduct themselves. That is what the judge meant in directing the jury that no further participation was required. She had already told them that they would need to consider whether “[Leighton] made a deliberate and intentional decision to partake” in the cheat; this was a proper direction regarding the intended (future) execution of the course of conduct. This was reinforced by the terms of the questions in the judge’s route to verdict, including (at Q5) that VAT “would not be paid” (our emphasis). In our view the judge’s directions were clear and directed the jury correctly as to what the prosecution needed to establish before they could convict. No further direction tailored to Leighton’s case was necessary. Like Rush, Leighton answered no comment in interview and did not give evidence at trial. The judge requested and received from each defence counsel a summary of the submissions made in defence speeches about which they wished her to remind the jury. She summarised Leighton’s case to the jury in accordance with Mr Hines’ summary. Leighton’s conviction is not unsafe.

For the reasons we have given, we dismiss Rush’s appeal and refuse Leighton’s renewed application for leave to appeal.