Neutral Citation Number: [2005] EWCA Crim 962
Case No: 2004/3738/D2 & 2004/3893/D2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/04/2005
Before :

LORD JUSTICE KENNEDY
MR JUSTICE CURTIS
and
HIS HONOUR JUDGE MOSS QC
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Between :

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	Carlton E. Cushnie and Frederick Clough		

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Alun Jones QC for Cushnie
Jonathan Caplan QC for Clough
Anthony Evans QC for the Crown

Hearing date: 7th April 2005
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Judgment
Lord Justice Kennedy: 
1.	On 11th July 2003 in the Crown Court at Southwark, Clough pleaded guilty to one count of fraudulent trading (known as the Normandy count) and two counts of conspiracy to defraud (known as the Versailles fraud and the Traders fraud). Cushnie pleaded not guilty to all three counts and the Normandy count was then severed to be tried separately at a later date.  So, early in 2004, Cushnie stood trial on the two counts of conspiracy to defraud.  After a four month trial he was acquitted of the Versailles fraud and convicted of the Traders fraud.  The prosecution then decided not to proceed further against him on the Normandy count.
2.	On 8th June 2004 both men were sentenced to a total of six years imprisonment, and to be disqualified from serving as a company director for a number of years.  There is in neither case any appeal against the period of disqualification, so we say no more about it.  In the case of Cushnie the sentence of imprisonment was imposed in respect of the one count of which he was convicted.  Clough received a sentence of 12 months imprisonment for the Normandy count, five years imprisonment consecutive for the Versailles fraud and three years imprisonment concurrent for the Traders fraud.
3.	Cushnie renewed his application for leave to appeal against conviction and both men renewed their applications for leave to appeal against sentence following refusal by the single judge.  We heard submissions from counsel on 8th April 2005 and concluded then that, for reasons to be given later, both of the applications advanced on behalf of Cushnie must be dismissed.  So far as Clough was concerned we granted him leave to appeal against sentence and ordered that unless within 7 days he gave notice of his wish to exercise his statutory right to be present when his appeal is heard the appeal in his case would be allowed to the extent that the sentence of 12 months imprisonment imposed in respect of the Normandy count would be served concurrently with the other sentences, so that the total period of imprisonment in his case would be reduced from six years to five.  We understand that Clough has not indicated that he wishes to exercise his statutory right, so his appeal is allowed to the limited extent which we have indicated.  
Grounds of Appeal against conviction.
4.	Cushnie seeks leave to appeal against conviction on two grounds – 
(1)	That, having regard to the way in which the prosecution presented its case, the conviction of him in respect of the Traders fraud is inconsistent with the verdict of not guilty which was returned upon him in relation to the Versailles fraud, and 
(2)	 That the conviction is unsafe because as against Cushnie the prosecution put forward Clough as a witness of truth, but in a subsequent trial of a man named Black the prosecution took a different stance.
We look at the way in which those grounds are developed later in this judgment, but first we must say something about the background.
Background.
5.	The business in which both Cushnie and Clough were engaged was the provision of funds on a short term basis to small to medium-sized distributors or manufacturers to facilitate their supplies to larger businesses.
6.	Between September 1989 and February 1993 both men were directors of Normandy Marketing, of which Clough was financial director.  The prosecution alleged that they traded fraudulently by transferring funds between the bank accounts of various internal companies so as to give an impression of turnover and of substantial assets.  Thus, for example, in 1991 the asset value appeared to be £407,000 but in fact there was a deficiency of £2.9 million.  
7.	The Versailles fraud, of which Cushnie was acquitted, related to the activities of Cushnie and Clough as executive directors of Versailles Group Limited (VGL) and its subsidiary company Versailles Trade Finance Limited (VTF) between June 1991 and January 2000.  It was the prosecution case that, broadly speaking, the pattern was the same.  The two men conspired to defraud trade creditors, banks or lending institutions induced to provide loans, the Stock Exchange and their own shareholders, by dishonestly overstating trading turnover and assets, and by falsifying and concealing accounting documents.  As with Normandy Marketing there was cross-firing of cheques between the accounts of companies internal to the group so as to create the impression of genuine trading activity, and although the Versailles Group became listed on the London Stock Exchange and joined the FTSE 250 it was actually insolvent.  Share dealing was suspended in December 1999, and the fraud was exposed in January 2000 when the company went into administrative receivership.  Banks who had lent money lost about £70 million.  Trade creditors were owed about £1.8 million, and shareholders who had paid about £100 million for shares were left with worthless paper.
8.	VGL and VTF did conduct a genuine business, but a significant part of the money which went into VTF came from wealthy individuals or “Traders” who were willing to pool their resources to finance specific transactions.  To accommodate those individuals Versailles Traders Ltd (VTL) was incorporated in March 1992 and, as with the other companies, Cushnie and Clough were executive directors.  In 1996 it was replaced by a company of the same name incorporated in the British Virgin Islands, and the name was later changed to Trading Partners Limited (TPL).  Apparently the company was a great success.  Reports and draft accounts showed that between 1993 and 1998 the Annual turnover increased from £3 million to £102 million, but it was all a sham.  There was no legitimate business.  “Profit payments” were made but the money was paid out of capital.  Funds which were supposed to be held separately when not being used for authorised purposes were dissipated, and when the company collapsed in January 2000 about £23 million invested by traders was seen to have been lost.  The operation of VTL/TPL was in due course described by the prosecution as the Traders fraud.  
9.	The position was complicated by the fact that Clough was also operating dishonestly on his own behalf.  The Crown accepted that Cushnie did not know that over the years Clough had stolen almost £19 million.  Cushnie’s own gains were higher, amounting to about £36 million, but he paid back £11 million when the problems began to emerge, bringing the total in his case down to about £24 million.
10.	The nature of the fraudulent activity was such that in order to operate its true nature had to be concealed from a large number of people, including in particular those who lent money to or purchased shares in the companies, auditors, the London Stock Exchange, and the Client Services Division of VTF, which was the only department in the Versailles Group which did any genuine business.  When the fraudulent nature of the activities of the Versailles Group and of VTL/TPL finally emerged Clough accepted responsibility, but Cushnie  contended that he, like many others, had been duped.  That was his defence at trial, so there was no real issue as to whether or not there had been fraudulent conduct.  The only issue was whether it was shown that Cushnie was a knowingly dishonest party to what had gone on.
History of the Indictments.
11.	The original indictment charged three defendants, - Cushnie, Clough and Lorraine Marcia Jones – with two offences.  In count 1 Cushnie and Clough were charged with fraudulent trading in relation to Normandy marketing.  Count 2 charged all three defendants with conspiracy to defraud trade creditors of VTF, banks and other institutions providing loans and overdraft facilities to the Versailles Group and/or VTF, the London Stock Exchange, shareholders of the Versailles Group, and traders providing finance to VTL and TPL by dishonestly –
(a) Falsely overstating the trading turnover of Versailles Group plc and/or VTF;
(b) Falsely overstating the assets of Versailles Group plc and/or VTF;
(c) Falsifying accounts, records or documents made or required for accounting purposes;
(d) Concealing accounts, records or documents made or required for accounting purposes; and
(e) Falsely representing that monies loaned or invested by individuals known as “traders” would be used for the purpose of genuine and specific trading transactions by or on behalf of VTL and/or TPL.
In other words the Traders fraud was presented as one aspect of the Versailles fraud.  Objection was taken to that presentation.  Mr Alun Jones QC, for Cushnie, made four submissions in relation to count 2.  First, he submitted that it was not right to charge conspiracy at all.  Secondly he submitted that the count as formulated was duplicitous or uncertain.  Thirdly, he submitted that the way in which the charge was formulated was such as to confuse the elements of the agreement with the overt acts, and finally he submitted that the allegations concerning traders did not properly form part of count 2.
12.	Jackson J, as the designated trial judge, rejected those submissions in a ruling which he gave on 8th July 2003.  For present purposes it is unnecessary to say anything more about the first submission, but in relation to the second submission the judge said at 12C of his ruling –
“Subject to one reservation – which I shall discuss in part 5 of this ruling – it seems to me that the matters charged in count 2 do constitute a single conspiracy.  The conduct in question is all of a piece.  It is part of a grand design to extract money from creditors, traders, lenders and investors by pretending that internal cash transfers were genuine trading turnover.  Of necessity, the same false picture needed to be presented to all who dealt with the Versailles companies.  If it were not, the whole fraudulent enterprise would collapse.”
As to the third submission the judge found that the elements of the agreement were not confused with the overt acts, and continued at 16D –
“Sub-paragraphs (a) to (e) of count 2 serve a valuable purpose.  They not only set out what allegedly the conspirators agreed to do.  These sub-paragraphs also set out overt acts from which the prosecution contend that the defendant’s conspiracy can be inferred.”
The judge then turned to Mr Jones’ final submission, which is a little difficult to reconcile with the position which he now adopts.  The judge found the submission difficult, and as he explained at 17 A –
“The deception allegedly perpetrated on the traders differed from that perpetrated on creditors, lenders, the Stock exchange and shareholders in three respects: 
(1)	The traders did not deal with VTF or Versailles Group.
(2)	The traders were led to believe that the money which they paid would not go to VTF or VG.  On the contrary it would be used for genuine and specific trading transactions by VTL or TPL.
(3)	Thus the traders were not relying on the false information which was issued by or on behalf of VTF or VG. 
On the other hand, the fraud allegedly perpetrated against the traders was based upon the same device as the other parts of the defendants’ enterprise.  Money was cross-fired and circulated to give a false impression of trading activity.  The same companies were used in the cross-firing operation.  Furthermore, the alleged fraud against traders spanned approximately the same period as the defendants’ other allegedly fraudulent activities.”
As to whether there were two conspiracies or one the judge’s conclusion was that either approach was legitimate so count 2 was not defective, but that the task of the jury could be made easier if the Traders fraud were to be presented as a separate count.
13.	The prosecution recognised the force of what was said, and prepared a fresh three count indictment in which count 1 (the Normandy Marketing count) was left undisturbed, but count 2 was amended by deleting the reference to traders as one of the victims of the conspiracy, and excising sub-paragraph (e).  That count was thus confined to the Versailles fraud.  The new count 3 alleged that the three defendants conspired to defraud –
“Such persons (known as ‘Traders’) who might by way of loans, deposits or investments provide monies to (VTL and TPL) by dishonestly: 
(a) falsely representing that those monies would be used for the purposes of specific and genuine trading transactions by or on behalf of VTL and TPL; and
(b) transferring those monies directly and indirectly between bank accounts held by VTL and TPL and bank accounts held by VTF for the purposes of falsely inflating the turnover and assets of all three companies.”
14.	Clough then pleaded guilty to all three counts, and for case management reasons the judge ordered that count 1 (the Normandy count) be severed from counts 2 and 3, which latter counts should be tried first.  Thus for the purposes of trial the Versailles fraud became count 1, and the Traders fraud became count 2.
The Trial.
15.	The prosecution case at the trial was, of course, that Cushnie was well aware of and a participant in most of the fraudulent activity in which Clough admitted that he had been engaged.  There was no need to dwell for long on the distinction between the two counts, because no one suggested that there had not been fraudulent activity, both in relation to the Versailles Group and in relation to the Traders companies, and the live issue was whether the prosecution could show that Cushnie was knowingly involved.  To that end considerable reliance was placed on the evidence of Clough, but there was also evidence from employees of VG, from those who dealt with that group, from traders (some of whom were also shareholders in the VG) from accountants, solicitors, and investigators.  In due course the prosecution decided to offer no further evidence against Lorraine Jones and she was acquitted by direction of the trial judge.  Cushnie, who had co-operated with the investigators, did not give evidence and there was then, as we would expect, a discussion between judge and counsel as to how the jury should be directed.  The directions given were the product of agreement reached at that stage.  Mr Jones did not appear for Cushnie at the trial, so, despite the agreement to which we have just referred, he is free to contend, as he does, that in two particular respects the judge fell into error.  
16.	In his summing-up the judge in chapter 1 instructed the jury to consider each of the two counts separately.  No one had suggested otherwise.  In chapter 2 he dealt with count 1, the ingredients of the conspiracy to defraud, and the evidence of Clough which showed that the Versailles fraud had been perpetrated.  Similarly in chapter 3 the judge dealt with count 2, where again the issue was whether the Crown had proved that Cushnie had conspired with Clough to carry out the fraud, or whether Clough may have carried it out without Cushnie’s knowledge.
17.	After the jury had returned their verdicts the judge helpfully spelt out in his sentencing remarks his understanding of the jury’s decision, thus we know precisely the basis on which sentence was imposed.  In the course of those remarks the judge said at page 81 of the transcript –
“I should make it plain that any doubts I expressed on the 8th July 2003 have evaporated.  It has become clear that the conspiracy to defraud the traders is an offence which is separate from the Versailles fraud.  It is supported by separate evidence.”
The judge also said at page 85 –
“In my judgment the only impact upon count 2 of Mr Cushnie’s acquittal on count 1 is in relation to the last three words of sub-paragraph (b).  The jury must have been satisfied that funds were being circulated for the purpose of inflating turnover and assets of VTL and TPL.  However, the jury were not satisfied that Mr Cushnie’s purpose was also to inflate the turnover and assets of VTF.  On this basis, the jury were quite entitled to return a verdict of guilty on count 2.
It should be borne in mind that count 1 is primarily focussed on VTF and VG, whereas count 2 is focussed upon VTL and TPL.
Subject to the reservation which I have just mentioned, I am quite satisfied that the whole of count 2 has been proved.”
Ground 1: Inconsistency of verdicts: The Law.
18.	The modern authorities relating to inconsistency of verdicts begin with Durante 56 Cr App R 708, but for present purposes, it is sufficient to refer to Clarke and Fletcher 30th July 1997, cited in Guest [1998] EWCA Crim 239, where Hutchison LJ said –
“It is for the appellant to show (1) that the verdicts are logically inconsistent and (2) that they cannot be sensibly explained in a way which means that the conviction is not unsafe.”
The Submissions.
19.	Mr Jones makes what he describes as five overlapping submissions.  Slightly re-worded those submissions are –
(1)	That the case as presented by the prosecution did not allow for an acquittal on count 1 and a conviction on count 2.  He further submits (which is really a separate point) that paragraphs (a) and (b) in count 2 are an essential part of the agreement alleged, and that an acquittal on count 1 necessarily implies inability to establish part of what must be proved for the purposes of count 2.
(2)	 Alternatively, that if (a) and (b) were not integral to the alleged agreement, the judge should have directed the jury that they must be agreed as to which of those particulars they found to be proved (see Brown [1984] 79 Cr App R 115).
(3)	The verdicts returned show that in relation to count 2 the jury did not find the meeting of minds necessary to establish a conspiracy.
(4)	Count 2 was bad for uncertainty, and 
(5)	The Judge should have enquired of the jury, either by way of requesting a special verdict or otherwise, on what basis it had come to its verdict.
20.	Both in his written and in his oral submissions Mr Jones placed considerable emphasis on the way in which the case was presented to the jury by the Crown – in essence that for over a decade Cushnie was involved in most if not all of the fraudulent activity admitted by Clough – with little attention being paid to the legal distinction between counts 1 and 2.  We regard that presentation as inevitable and entirely appropriate, having regard to the nature of the Cushnie’s defence and the overall nature of the prosecution case.  What matters is that at the end of the day, in clear terms and by agreement, the judge directed the jury to give separate consideration to each count.
21.	As to the proper approach to paragraphs (a) and (b) in count 2, it seems to us that considerable assistance can be obtained from the decision of this court in Hancock [1996] 2 Cr App R 554 in which Stuart Smith LJ said at 559 G -
“Since the case of Landy [1981] 72 Cr App R 237, in a case where conspiracy to defraud is alleged, the Crown are required to set out sufficient particulars of the offence to enable the defence and the judge to know precisely, and on the face of the indictment itself, the nature of the prosecution case and to stop the prosecution shifting their ground during the course of the case.  But simply because particulars of an offence are given does not mean that those particulars are an essential ingredient of the offence.”
22.	In the present case it seems to us to be clear that in order to establish the conspiracy to defraud alleged in count 2 it was not necessary to establish joint involvement in the whole of the conduct particularised in both paragraph (a) and paragraph (b).  As was said in Hancock’s case those particulars did no more than specify the nature of the case the prosecution sought to prove, and the principle overt acts upon which they relied.  As Mr Evans QC, for the Crown, pointed out, the acts relied upon in the present case were not in fact in dispute.  What was in issue was the extent of Cushnie’s knowledge.  If he knew the substance of what was happening in the Traders fraud then, as it seems to us, it cannot seriously be contended that he was not guilty of the conspiracy to defraud alleged simply because the jury was not satisfied that he knew that one of the purposes of moving money was falsely to inflate the turnover of VTF (as well as that of VTL and TPL).
23.	By reference to the management agreement entered into between VTL and VTF Mr Jones submitted that once the jury were satisfied as to the guilt of Cushnie in relation to count 2 they should have recognised the impact of that conclusion on count 1, and convicted him of that count also.  Under the terms of the management agreement, of which Cushnie accepted that he was aware, VTL was required to pay a high percentage of its profits to VTF as remuneration for services provided by VTF.  In fact the agreement was a sham.  There were no profits, because there was no trading except for one transaction at a loss, but the documentation suggested otherwise, and so, Mr Jones submitted, if, as the jury found, Cushnie was a knowing party to the Traders fraud he must also have known that the assets of the VG were being inflated by a bogus profit.  Of course he would have had that knowledge if he had considered the implications of the Traders fraud, but the jury was not bound to find that he did so, and even if he did so that knowledge alone would not be determinative of guilt in relation to count 1.  As Mr Evans put it at paragraph 25 of his skeleton argument –
“There was an undoubted link between the Traders companies and the Versailles companies – but the essence of the deception of the Traders was that they were led to believe they were investing in a company which actually traded and would use their monies for that trading and thereby provide trading profit on their investments, when it did no such thing; and each of the Traders’ agreements referred to in evidence made it plain that their monies would either be used to fund specific and genuine transactions or would be kept in an interest-bearing account.”
24.	Mr Jones also reminded us that many traders were shareholders in the VG, and some were even non-executive directors, so they were able to receive and rely upon information in relation to the group.  They knew of the link between VTL and the VG, including in particular the fact that money invested in VTL was held, allegedly separately, in VTF.  But that was one reason why the Traders operation was presented to the traders as being different, something on which Cushnie relied when in late 1999, after trading in the shares in the VG had been suspended, he assured Traders at their Christmas lunch that their money was safe.
25.	Mr Jones submitted that count 2 could have been charged as a conspiracy contrary to section 1 of the Criminal Law Act 1977, the underlying offences being the obtaining of traders money by deception as alleged in paragraph (a) and stealing the money thereafter as alleged in paragraph (b).  But paragraph (b) does not allege theft, and where the offence is not a statutory conspiracy but conspiracy to defraud, it is of no assistance to be reminded that when a statutory conspiracy is charged each underlying offence probably constitutes an essential element of the conspiracy, as was pointed out by Phillips LJ in Roberts [1998] 1 Cr App R 441 at 449 C.
26.	A further submission was that if any alteration was to be made to the original indictment it should have been limited to the addition of the two counts on which Cushnie was tried in addition to the original count 2, so that the jury would be able to decide whether the Versailles fraud did or did not embrace the Traders fraud.  We disagree.  As the judge said, the prosecution was entitled to present the case as they did.  If they failed to prove the conspiracies alleged, then their case failed.  
27.	At first sight there might appear to be some substance in Mr Jones’ submission that in relation to paragraphs (a) and (b) of count 2 there should have been a direction in accordance with the decision of this court in Brown, even though at the trial no one suggested that no such a direction should be given.  But, as Mr Evans reminded us, such a direction is required in “comparatively rare cases where it emerges that at some stage in the course of the trial, or as result of a question asked by the jury, that there is a risk of disagreement between the members of the jury as to whether a particular ingredient of the offence has been proved” (More [1988] 86 Cr App R 234).  The situation envisaged in More never arose in this case, and that is not surprising because the dishonesty alleged in paragraphs (a) and (b) was undisputed.  All that was in issue was whether Cushnie was a party to it.  In the circumstances a Brown direction was not required, and its absence cannot be said to render the conviction unsafe.  
28.	Mr Jones’ submission that the two verdicts indicate that in relation to count 2 there was no meeting of minds adds nothing to the submission already dealt with that paragraphs (a) and (b) were essential elements of the offence, which in the light of the verdicts the judge was not entitled to re-draft or read down.
29.	The submission that count 2 was bad for uncertainty was never advanced at trial, and we are not surprised.  Everyone knew precisely what was alleged, and had the submission been made it would have had no prospect of success.
30.	Similarly when the jury returned verdicts there was no reason whatsoever to seek further assistance from the jury.  It would have been wholly inappropriate to do so.  As the judge demonstrated, he was able to interpret the verdicts in a way which enabled him to proceed to sentence, and no more was required.
31.	Finally in relation to the first ground of appeal we make three points.  First, it is obvious that counts 1 and 2 differ as to those alleged to have been defrauded.  Second, the two counts differ as to the means by which the victims are alleged to have been defrauded, in other words as to the nature of the fraud.  Where those differences exist we find it difficult to envisage any situation in which it would not have been open to a jury to convict on one count and acquit on the other.  The jury might, for example, be satisfied that the defendant agreed with his co-accused to defraud the victims in group A, but not satisfied that he was party to an agreement to defraud the victims in group B.  Thirdly, as we pointed out to Mr Jones during the course of argument, it was plainly open to the jury to consider count 2 first, and if the trial judge had advocated that approach he could not possibly have gone on to direct the jury that if they convicted on count 2 they must then convict on count 1.  That, in our judgment, speaks for itself.  These verdicts were not logically inconsistent, and in fact they can be and have been explained in a way which shows that the conviction on count 2 is not unsafe.
Ground 2: Clough and the trial of Black.
32.	Mr Jones’ second ground of appeal relates to the Crown’s attitude to Clough as a witness.  After he indicated his willingness not only to plead guilty but also to give evidence for the prosecution a statement was obtained from Clough and on 13th September 2003 that statement was served upon those acting for Cushnie.  It was also served on those acting for a man named Black, who was alleged by the Crown to have been involved in the disposal of the money which had been obtained by fraud.  For obvious case management reasons Black was separately indicted, but it is common ground that he could have been joined with the other defendants in the original indictment.  Initially, it seems, the Crown was minded to call Clough as a witness for the prosecution first in the trial of Cushnie and Lorraine Jones, and secondly in the subsequent trial of Black, even though the statement of Clough tended to exculpate Black.  At a directions hearing in relation to the trial of Black held on 12th February 2004, during the course of the trial of Cushnie, counsel for the Crown said that no final decision had yet been reached as to whether Clough would be called by the Crown in the subsequent trial.  After the trial of Cushnie came to an end the Crown decided not to call Clough in the subsequent trial.  He was in fact called by the defence, and his evidence exculpating Black was challenged by the Crown.
33.	Now it is said in the second ground of appeal that the conviction on count 2 is unsafe because the prosecution regarded Clough as an untruthful witness at the trial of Black, and that at the time of Cushnie’s trial those acting for the defence of Cushnie did not know that the Crown did not accept what Clough had said in his statement about Black.  Mr Jones began his submissions by referring us to this ground of appeal.  He submitted that we should grant leave to appeal and order further disclosure before hearing the substantive appeal.  But in our judgment the ground of appeal is plainly unarguable.  The Crown was entitled to regard Clough as a man who was truthful and reliable about some matters but not about others.  So he was put forward as a witness of truth in the trial of Cushnie and Lorraine Jones, but not in the trial of Black.  That   did not disadvantage Cushnie in any way.   His lawyers knew what Clough was prepared to say.  Mr Jones submits that because during the trial of Cushnie the defence did not know what the Crown would later decide they were deprived of the opportunity to submit that the evidence of Clough should be excluded pursuant to section 78 of the Police and Criminal Evidence Act 1984.  That is incorrect.  The submission was not dependent upon the decision of the Crown whether or not to call Clough as a witness at the later trial.  It could perfectly well have been made on the disclosed statements, but it was not made because, no doubt, counsel then acting for Cushnie, in our judgment realistically, regarded it as a submission which could not succeed.
Sentence: Cushnie.
34.	In relation to sentence Mr Jones relied upon the grounds of appeal drafted by counsel who appeared at the trial.  In those grounds it is submitted that the sentence was passed on a wrong factual basis because it was imposed, at least in part, for an offence of which Cushnie had been acquitted.  We reject that submission.  The judge carefully set out his understanding of the implications of the jury’s verdict, and we have detected  no flaw in his reasoning save where he said, at page 92, that “it follows from the jury’s verdict that Mr Cushnie believed the main Versailles business to be legitimate”.  The words “may have” need to be inserted before the word “believed”.  The error, which was in favour of the defendant, is only worth mentioning because it features in the grounds of appeal, but in our judgment the verdict of the jury cannot be said to have deleted paragraph (b) from count 2 and made it clear that Cushnie “in behaving as he did had no intention to cause loss, no intention to profit and no idea that he was investing these monies into a business that was anything other than very successful and continuing to grow”.  Having referred to the statutory maximum of 10 years imprisonment and to the sentences imposed in other cases of serious cases of fraud, the judge said of the Traders fraud –
“It was carried out over a period of nearly eight years.  It caused losses of over £20 million.  It involved gross breaches of trust towards the individuals who were persuaded to invest in the traders company and to maintain their investments.  It involved a gross deception of many other people and institutions.”
He went on to say that it involved substantial gains for both Cushnie and Clough, and that, leaving aside personal mitigation, the proper sentence for that offence was six years imprisonment.  The judge then referred to Cushnie’s good character which, he said, “counts for little in the case of a conspiracy to defraud upon this scale over a period of eight years”.  So he imposed the sentence which Cushnie now seeks leave to appeal.  In our judgment there was no error in the approach, nor in the conclusion reached by the sentencing judge.
Sentencing: Clough.
35.	On behalf of Clough Mr Jonathan Caplan QC, in an attractive submission, made four points.  First he submitted that the judge’s starting point was too high.  For the Versailles fraud which gave rise to losses exceeding £150 million and involved a massive deception of the London Stock Exchange impacting upon the confidence of investors, the judge took as his starting point the statutory maximum of ten years.  Mr Caplan submitted that he should have left room for even more serious cases, and taken account of Clough’s role as first lieutenant.  In our judgment once fraudulent activity reaches a certain level of gravity a judge is entitled to say that the gravity is such as to justify the statutory maximum even though it is possible to envisage more serious cases, and, as to the role of Clough, the judge was clearly entitled to regard him as bearing full responsibility.  
36.	Mr Caplan’s second point relates to the pleas tendered by Clough and to his co-operation.  The judge did allow for those matters, but Mr Caplan submits that the discount of 50% granted by the judge was insufficient.  We acknowledge that Clough was entitled to a substantial discount, both for his plea and for his co-operation, which shortened the proceedings against him and helped to secure the conviction of his co-accused, even though, as the judge recalled, the co-operation did not extend to answering all of the questions put to Clough by the Serious Fraud Office or by the Receivers.  On the other hand this was not a case where, as sometimes happens, by co-operating and giving evidence Clough placed himself or his family in any obvious jeopardy.  The evidence against him was overwhelming, and it could even be said that by co-operating he had something to gain and little to lose, so in our judgment the judge’s conclusion as to the appropriate discount cannot be faulted.
37.	Mr Caplan’s third point we can deal with briefly because he did not really pursue it.  The judge referred in passing to Clough having been convicted in Jersey in 1966 of offences including false accounting, but it seems clear to us that the judge was doing no more than set the scene.  Just as Cushnie did not receive any discount for good character it is clear that Clough did not receive more than he would have received had he not been convicted many years ago.
38.	Mr Caplan’s fourth point we found more troublesome.  It relates to the consecutive sentence of twelve months imprisonment imposed in relation to count 1, the Normandy count.  It was the Crown’s case that Normandy was simply the start of the fraudulent activity which blossomed in the Versailles fraud and in the Traders fraud.  In those circumstances it is not clear to us why the judge considered that it was necessary or appropriate to impose a consecutive sentence for an earlier phase of a continuous course of criminal conduct, especially when the Crown decided to offer no further evidence against Cushnie in relation to the Normandy count.  In our judgment the right course would have been to order that the sentences in respect of all of three counts be served concurrently.  For that reason we granted Clough leave to appeal, and indicated that unless he gave notice of a desire to be present when his appeal is heard we would allow his appeal to the extent of ordering that the sentences imposed upon him, namely 1 year in respect of count 1 (the Normandy count), 5 years in respect of count 2 (the Versailles fraud) and 3 years in respect of count 3 (the Traders fraud) be all served concurrently.