Case No: 9905055/6001W3
Neutral Citation Number: [2001] EWCA Crim 2621
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29th November 2001

B e f o r e :

LORD JUSTICE KAY
MR JUSTICE BURTON
and
HIS HONOUR JUDGE ZUCKER QC 
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	R	Respondent	
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	ROSALEEN JACINTA NAJERA	Appellant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Miss Claire Andrews (appeared on behalf of the Appellant)
Mr Peter Rook QC and Mr John Hillen (appeared on behalf of the Crown)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Kay : 
1.	On the 2nd September 1999 in the Central Criminal Court, the appellant, Rosaleen Jacinta Najera, appeared before His Honour Judge Beaumont QC to stand trial on an indictment containing a number of allegations of fraud.  Before the jury were sworn, she changed her plea to guilty in respect of two offences, one of false accounting and the other of procuring the execution of a valuable security by deception.  Two further counts, each of obtaining property by deception, were then quashed and a further similar count was ordered to lie on the file.  She was sentenced to nine months imprisonment concurrent on each account, the sentence being suspended for eighteen months and she was ordered to pay £1,000 towards the costs of the prosecution.
2.	She now appeals against conviction by leave of the single judge.
3.	The appellant also seeks to raise an issue relating to the order for costs although no notice of appeal against sentence was given.  It is clear, however, that the failure to give notice resulted simply from failing to tick the appropriate box on the relevant form.  This is manifest because counsel’s grounds and advice refer to this aspect of the matter.  It is, perhaps, unfortunate not only that an error was made in completing the form but also that the appellant’s lawyers seem to have been wholly unaware that the appellant did not have leave to appeal against sentence until the Court pointed out that this was so during the hearing.  Nonetheless, we are satisfied that it would be unjust in all the circumstances to prevent the appellant from raising this aspect of the case.  We, therefore, extend time for the making of an application for leave to appeal against sentence and grant leave.
4.	The background of these offences is a complex one not all of which has any bearing on the issues which we have to determine and accordingly we will summarise the facts relatively briefly.
5.	In April 1994, the appellant, a woman of previously good character, was charged with an allegation of conspiracy to defraud banks and other lending institutions dating back to 1990.  All told 15 others were originally charged and the appellant’s co-accused included her brother, William Johnston, her husband, her two sisters, Beryl O’Shea and Valerie Milsom, and each of the husbands of the two sisters.
6.	The appellant’s family had for many years been involved in a business providing bed and breakfast and hotel accommodation in the Harrow area.  The business prospered and became a public company.  At the heart of the business at the relevant time was the appellant’s brother, William Johnston, and his group of companies was known as the Harrovian Group.  In order to promote the growth of the group, properties were acquired with funds borrowed from financial institutions.  It was the prosecution’s contention that the affairs of the group were conducted fraudulently resulting ultimately in losses alleged to be £1.2 billion.  
7.	The Crown’s unsuccessful allegation was that William Johnston was at the centre of the fraudulent activity.  Apart from the family members, two solicitors, two surveyors, two former bank managers, a former Mayor of Harrow and other businessmen were alleged to be involved.
8.	The role of the appellant was always said to be a limited one.  It was not suggested that she operated any of the companies in the group although she was employed by the family business.  It was alleged against her that in the obtaining of loans, she allowed herself to be used as a front for dishonest representations that were being made.
9.	In due course the various issues were divided into smaller parts.  Those alleged to be the principals in the fraud were to be tried in two separate trials relating to two different aspects of the groups activities and the proposed trials became known as the Harrovian Properties trial and Harrovian Leisure trial.  The case against those not said to be principals was then divided into smaller trials reflecting the allegations that were made against them.
10.	The appellant, her husband, her sister Valerie Milsom and her brother-in-law Martin Milsom were to be tried together.  It was agreed that that trial should await the outcome of both the major trials.  At that stage, it was envisaged that one judge, Judge Beaumont QC, would preside over all the various trials.
11.	The first trial relating to Harrovian Properties resulted in the acquittal of four defendants including William Johnston.  For reasons, into which it is unnecessary to go, the Harrovian Leisure trial was then postponed.  It was ordered as a consequence of that delay that the trial which involved the appellant and also a trial relating to another sister Beryl O’Shea and her husband should proceed before the Harrovian Leisure trial.
12.	Applications were made to stay the proceedings against the appellant, her husband and the Milsoms as being an abuse of the process of the court.  The judge, on the 4th June 1999 rejected those applications.  
13.	On the 5th July 1999, Beryl O’Shea changed her plea to guilty on one count of false accounting on the indictment that she faced.  The prosecution had given an indication that if she did so, they would not proceed further against her husband.  Mrs O’Shea was sentenced to nine months imprisonment suspended for eighteen months and was ordered to pay £1,000 towards the costs of the prosecution.  As they had indicated, the prosecution did not proceed further against her husband.
14.	On the 1st September 1999, the indictment against the appellant, her husband and the Milsoms was listed for trial.  Valerie Milsom changed her plea to guilty to one offence of obtaining property by deception and to one offence of procuring the execution of a valuable security by deception.  She too had been given an indication that upon such pleas being entered, the prosecution would not proceed further against her husband.  She was sentenced in precisely the same way as her sister Beryl O'Shea and the prosecution, in line with the indication given, elected to proceed no further against Mr Milsom.
15.	It is clear that the appellant found herself in a difficult position and time was sought for her to consider what she should do.  In circumstances to which we will return in detail later, she eventually entered pleas of guilty to offences of false accounting and procuring the execution of a valuable security by deception.  She too was sentenced in precisely the same way as each of her sisters.  The prosecution, who had indicated in advance their intention if the appellant pleaded guilty, elected to proceed no further against the appellant’s husband. 
16.	On the 3rd September 1999, Judge Beaumont QC acceded to an application that he should disqualify himself from further involvement with the Harrovian Leisure trial.
17.	On the 23rd December 1999, His Honour Judge Samuels QC upheld a submission made on behalf of the defendants in the Harrovian Leisure trial that to continue with that trial would be an abuse of process and he stayed those proceedings.  
18.	The appeal against conviction raises two matters, the first relates to the circumstances in which the appellant entered her pleas of guilty, and the second to the refusal by Judge Beaumont QC to stay the proceedings.
19.	It is accepted that in entering her guilty pleas, nothing occurred at the time of the plea which could have alerted the court to the fact that the pleas were other than unequivocal pleas freely entered into by the appellant but it is contended that the pleas resulted not from her free choice but from improper and unfair pressures placed upon her by the prosecution and the trial judge.  Accordingly it is submitted that the resulting convictions have to be viewed as unsafe and should, therefore, be set aside.
20.	The complaint made against the prosecution is that by giving an indication that they would not proceed against the appellant’s husband if the appellant pleaded guilty, it placed unfair and improper pressure upon her to plead guilty.
21.	The complaint against the trial Judge relates to his sentencing remarks when he passed sentence upon each of the appellant’s sisters Beryl O’Shea and Valerie Milsom.  It is alleged that remarks were directed at the appellant and her husband and were calculated to make them believe that very different sentencing options were likely if the appellant were convicted after a trial from those likely to follow upon a plea of guilty.  Hence it is contended that the Judge offended against the principles enunciated by Lord Parker CJ giving the judgment of this court in Turner (1970) 54 Cr. App. R. 352 at page 360.
22.	It is convenient to take the point relating to abuse of process first.  The appellant’s argument to the judge was said to have “twin themes”.  First it was argued that reversal of the order of trials so that the appellant’s trial proceeded before the Harrovian Leisure trial despite the original order that it should follow that trial, was an abuse of the process of the court.  Secondly, it was contended that there had in the circumstances been such inordinate delay that to proceed further amounted in itself to an abuse of process.
23.	The argument on the first limb is that since the appellant agreed that her trial should await the outcome of the two major trials for reasons perceived by the Defence to be good tactical reasons, it was unfair to her once she had conceded the right to a relatively speedy trial for her to lose the tactical advantage that she believed would have  resulted from her trial following the other two trials.
24.	We are quite satisfied that this contention is wholly without merit.  Complex fraud on this scale presents very difficult case management problems for the courts.  From their very nature, such trials take a long time to complete.  Where, therefore, a very large potential trial can sensibly be split into elements likely to be more readily comprehensible from a jury’s point of view, decisions have to be made as to the order in which such trials should proceed.  A decision on such matters can, however, never be thought to be a binding and unalterable decision if the circumstances change.  The court is under the obligation, recognised in the second limb of this ground, to ensure that all matters are dealt with with the minimum of delay consistent with the doing of justice in the particular case and having regard to the overall burden of the courts and the needs of other cases.
25.	The original decision that the two Harrovian Group trials should proceed first was clearly one that satisfied these differing requirements.  Since, for good reasons, the same judge was to hear all aspects of the matter, this necessarily meant that the appellant’s trial would be delayed.  The appellant was not merely content with this arrangement but it appears saw it as being to her advantage.
26.	When the planned schedule for the two major trials could not be met, it was clearly necessary for the court to revisit the question in those changed circumstances and reconsider the order in which the trials should take place.  If the trial involving the appellant was to await the outcome of the Harrovian Leisure trial, it would inevitably not commence for a further very substantial period.  We are satisfied that the judge was entitled to conclude that the position had so radically changed that the delay that would be involved in the smaller trials being held back still further was no longer acceptable.  Indeed, the second limb of the appellant’s argument seems to underline the need for the judge to take the course that he did.  In the circumstances we are satisfied not merely that it was a reasonable decision for the judge to have made but that it was plainly the right decision.
27.	We turn next to the second limb of the submission on delay namely that the delay by that stage was in itself inordinate and to proceed was an abuse of process.  This aspect of the case cannot be divorced from the appellant’s own position in relation to the delay.  She had agreed that her trial should be delayed because she believed that it was to her advantage to have the other matters determined first and even at the stage when her trial was advanced ahead of the Harrovian Leisure trial, far from demanding an end to the delay, she was asking for it to be delayed further.  That approach is hardly consistent with the contention that the delay was by then acting to her prejudice still less that it was preventing her from receiving a fair trial.
28.	This case was heard before the Human Rights Act 1998 came into force.  Prior to the coming into effect of that Act the law was as stated by Lord Lane CJ in Attorney General’s Reference No. 1 of 1990 [1992] QB 630 at page 644:    
“…no stay should be imposed unless the Defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no far trial can be held: in other words, that the continuance of the prosecution amounts to the misuse of the  process of the court.”
29.	Miss Andrews on behalf of the appellant draws attention to the decision of the Privy Council in Darmalingum v The State [2000] 1WLR 2303.  However, that decision has to be read in the light of the guidance given by this court in Attorney General’s Reference No. 2 of 2001[2001] EWCA Crim 1568.  In that case the court had to consider whether the requirement to comply with Article 6 of the European Convention on Human Rights meant that the court had to adopt a different approach to questions of delay to give effect to the right of the appellant to a hearing “within a reasonable time”.  It was submitted in that case that once the court had come to the conclusion that the reasonable time required in Article 6(1) had been exceeded, the court had to stay proceedings.
30.	Lord Woolf CJ dealt with that matter in the following way:
“19. The illogicality of this approach, or the nonsense it produces, is illustrated when the position is looked at where it is not a party to criminal proceedings who is complaining about a contravention of the reasonable time requirement in Article 6, but a defendant to civil proceedings.  The position of such a defendant was put to (counsel).  The defendant would say, “Because of the delay my Article 6 rights have been infringed. Section 6(1) means that you cannot proceed with the trial of the claim which is brought against me”. But what about the claimant? The claimant is also entitled to Article 6 (1) rights.  The claimant says that he is entitled to have his rights determined within reasonable time.  If (counsel) is correct, the court would not be entitled to proceed with the trial because of its effect upon the defendant.  With the greatest respect, that approach cannot be right.  Similarly, at the trial of a defendant on a criminal charge, it is not only the defendant who is to be considered.  The public are interested in whether or not defendants are tried for criminal offences they have committed.   As is the case with many of the rights which are contained in the Convention, the courts are called upon to hold the balance between the rights of the individual and the rights of the public.
20.  The explanation for the judge taking the view which he did, in our judgment, is because the judge failed to distinguish between the conduct which constitutes the unlawful act for the purpose of Article 6(1) and the remedy which the court provides for the unlawful act if there has been indeed an unlawful act.  If a person complains of a contravention of the reasonable time requirement in Article 6, and if the court comes to the conclusion that there has been a contravention, then at the request of the complainant the court is required to provide the appropriate remedy.  If the court is willing and able to provide the appropriate remedy, then the court is not compelled to take the course of staying the proceedings.  That is a remedy which the court can grant, but it is certainly not a remedy which it is required to grant.  It seems to us in general that the approach that previously existed as to the provision of the remedy of staying the proceedings should be confined, as it was prior to the Convention becoming part of our domestic law, to situations which in general terms can be described as amounting to an abuse of the process of the courts.  But there are many other actions which the court can take which avoid the need for such action.  In particular, if the court comes to the conclusion that this would provide the appropriate remedy, the court can mark the fact that the way the prosecution has been conducted does contravene the reasonable time requirement in Article 6(1) and acknowledge the rights of the defendant by so doing.  In many cases the court will come to the conclusion that that is not a sufficient recognition of the defendant’s rights.  If that be so, then the court can take other action.  It can, for example, take account of the failure to proceed with the case with due expedition in the sentence which the court imposes.  It has always been the practice for the courts in this jurisdiction to take into account delays of the sort to which we have referred when sentencing a defendant.  It does so, recognising that it is inevitably a disadvantage to a defendant to have a charge hanging over his or her head longer than is reasonably required.  The criminal process inevitably subjects an individual to distress.  Albeit that they are acquitted at the end of the process, they still have been subjected to unnecessary distress.  The difference which the Human Rights Act 1998 makes is that the remedies available to a court can be greater than they were hitherto.  In particular, it is now in appropriate circumstances open to the courts to make awards of compensation.  This court accepts that where a person is acquitted at a subsequent trial, it could be appropriate for there to be compensation if there has been delay which contravenes the reasonable time requirement in Article 6(1) of the Convention.  It depends on all the circumstances whether compensation is appropriate.
21.  There is a certain amount of authority on this subject.  However there is no authority which supports the conclusion that a stay is the appropriate remedy, except in limited circumstances where it is no longer possible for a defendant to have a fair trial, bearing in mind the ability of the court to exclude evidence or to take other action to achieve a fair trial.  If a fair trial is not possible, then a stay would have to be imposed.  Equally it would be appropriate to stay proceedings if the situation is one where it could said that to try the accused would in itself be unfair.”
31.	Thus the court is satisfied in the circumstances of this case the relevant question both before and after the coming into force of the Human Rights Act 1998 was whether a fair trial was still possible.  
32.	There had been substantial delay in this case.  That delay was to a large extent a necessary consequence of the splitting of the allegations into successive trials.  There were additionally other facts that handicapped the prosecution from proceeding with greater speed.  In addition there was a period of five months “slippage” that the Judge found resulted from delay in the preparation of the prosecution’s accounting evidence.  However, the Judge could find no proper basis for concluding that a fair trial of these issues was not possible.  The prosecution points out that this was not a case in which the evidence depended substantially upon oral testimony of events but was one primarily involving contemporaneous documents.  Nothing that was urged before the judge nor before us persuades us that the situation had been reached where a fair trial was no longer possible.  Accordingly, we are satisfied that the judge was right to refuse the application for a stay.  Clearly the delay was an important factor in sentence as envisaged by Lord Woolf in the passage to which we have referred but it is equally clear that the judge gave great weight to that factor in deciding that the sentences of imprisonment should be suspended.  In so far as there may, therefore, have been a breach of the appellant’s Article 6(1) rights, a sufficient and appropriate remedy was provided.
33.	We have considered that aspect of the case without reference to the guilty plea subsequently entered by the appellant.  Arguments were put forward on behalf of the prosecution suggesting that the fact of those guilty pleas negatived any suggestion that a fair trial was not possible since none proved necessary and the appellant could have entered her pleas at any earlier stage.  We find it unnecessary to embark upon consideration of those arguments in the light of our earlier conclusions.
34.	We turn, therefore, to consider the second ground of appeal relating to the circumstances of the entering of the guilty pleas.  It is necessary to set out in greater detail precisely what happened starting from the stage when the appellant’s sister Beryl O’Shea indicated her intention to plead guilty.
35.	The trial of Beryl O’Shea and her husband had been fixed for the 4th July 1999.  Shortly before the trial commenced, counsel for Mrs O’Shea who had been in conference with his client, approached counsel for the prosecution and enquired whether if Mrs O’Shea pleaded guilty, the Crown would proceed further against Mr O’Shea.  The question was raised because handwriting evidence showed that Mrs O’Shea alone had signed the fraudulent documents, and the prosecution case against Mr O’Shea had to be put on the basis that since his name was being used, the circumstances gave rise to an inference that he was a party to the deception.
36.	Prosecuting counsel considered the question with the Crown Prosecution Service and with the police.  Concern was expressed as to whether it would be proper to answer the question but the prosecution reminded themselves of the observations of Taylor LJ in Herbert (1992) 94 Cr. App. R. 230 at Page 235:
“… if Counsel for the Crown is conducting himself conscientiously, he is doing no more than stating what pleas, what resolution of the case, he considers will satisfy the interests of justice.  That… is his duty, and there is nothing improper in his making the Crown’s position clear especially when asked.  Had (counsel), in the present case, failed to answer the question raised by Mrs Herbert’s counsel, or had his answer not been relayed to the appellant, one could well imagine a different challenge being mounted on the basis that the appellant should have been told and that counsel was in dereliction of his duty.”
37.	The prosecution decided that the interests of justice would be met by pleas by Mrs O’Shea without a need to continue the proceedings further against Mr O’Shea.  In accordance with the guidance in Herbert, defence counsel was told of this conclusion and after hearing the answer and being advised by her counsel, Mrs O’Shea pleaded guilty.
38.	Judge Beaumont QC when explaining why he was suspending the sentences of imprisonment which he had passed on Mrs O’Shea said:
“What weighs with me is the length of time that you waited for today, a wait of over five years with the concomitant blight on your family life, and that phrase in mitigation is absolutely right in describing the effects of the last five years on you and your family.  It has taken that time because of the colossal scale of the investigation and the prosecution process that followed, an investigation that was hindered by the wholesale destruction of documents when it became apparent that the game was up.  It made it necessary for third party reconstruction of conveyancing files.  I dwell on that aspect what happened for this reason: to make it clear that there is no evidence that I could act upon that you participated in the filleting and burning of incriminating documents.
The lapse of time, therefore, becomes a factor in the sentencing exercise that I have to undertake that will not necessarily apply to others convicted.”
39.	At the end of July 1999, counsel for the prosecution was approached by leading counsel for Mr & Mrs Milsom.  He was advised that Mrs Milsom might plead guilty to two counts on the indictment against her.  Mr Milsom was in precisely the same position as Mr O’Shea and the prosecution concluded that the interests of justice required them to reach a similar conclusion in such circumstances that they should not proceed against Mr Milsom.
40.	On the 26th August 1999, the Crown Prosecution Service were notified by letter that Mrs Milsom would plead guilty as earlier indicated and the Crown Prosecution Service responded that in such circumstances they would not proceed further against Mr Milsom.
41.	On Saturday the 28th August 1999, prosecuting counsel received a telephone call from Mr Michael Hubbard QC, leading counsel for the appellant at trial.  He indicated that he was aware what was to happen in respect of the Milsoms and enquired whether the same course would be taken in similar circumstances in respect of the Najeras.  It appears that in seeking this information, leading counsel was acting on his own initiative and not in response to any request from the appellant.  Prosecuting counsel replied that he had no instructions as to the acceptability of pleas in their case and pointed to a distinction between Mr Najera’s case and that of Mr O’Shea and Mr Milsom.  In Mr Najera’s case, there were documents in respect of one of the two allegations, which were in Mr Najera’s handwriting, which indicated knowledge of the transactions, albeit that they were dated after the time of the draw-down of funds.  Mr Hubbard was abroad at the time and said that he would telephone again on Monday the 30th August once he had the papers in front of him.
42.	On the 30th August, a further telephone discussion took place between Counsel and the matter was left on the basis that prosecuting Counsel would seek instructions the following day.
43.	On the 31st August, following discussions with the Crown Prosecution Service, a decision was made that if the appellant pleaded guilty, the prosecution would not proceed against her husband.  The decision, as subsequently explained to the judge, was on the basis that there might be perceived to be an appearance of unfairness if the prosecution differentiated in the treatment of the Najeras when compared to the O’Sheas and the Milsoms notwithstanding the evidential difference.
44.	On the 1st September, Valerie Milsom pleaded guilty and the counts against her husband were permitted to lie on the file.  Judge Beaumont QC in sentencing her said:
“I would like you to sit down for a moment please, because it is important that you and the public, together with anyone else, who has an interest in today’s proceedings should understand the basis on which I have imposed this particular sentence.”
45.	Having explained why he considered a sentence of imprisonment necessary, the judge then explained his reasons for suspending that sentence:
“What weighs with me – and I repeat to you what I said to your sister last month – is the length of time you have waited for today.  A wait of over five years with the concomitant blight it has imposed on your family life and the effect that it has had upon you personally.  It has taken that time to reach today for you because of the colossal scale of the investigation and the prosecution process that then followed.  An investigation was hindered by the destruction of documents making it necessary for third party reconstruction of the files that bear upon your case.  I dwell on that fact, as I made plain I hope to your sister, that there is no evidence that I could act upon that you participated in that process of document destruction at all.  That is of critical importance in determining what the appropriate sentence is for you, because it means that lapse of time as a factor in sentencing has real relevance to your case in the sense that you are not responsible for the time that has passed before you were brought before the court.  That, therefore, justifies the view that I have formed that in a sense you have already been punished by the effect of the wait over all of these years.  That in my judgment, amounts to an exceptional reason which entitles me to suspend the inevitable prison sentence.  However long that sentence is in fixing the particular term that I have determined upon is mitigated by your pleas of guilty and by the personal factors including the references I read about you from others, which makes it shorter rather than a longer period.”
46.	On the morning of the 2nd September 1999, the appellant decided that she would plead guilty to the two counts.  She was not, however, admitting to her counsel that she was guilty of the offences and they required her to sign an endorsement on counsel’s brief.  That endorsement reads:
“1.	The prosecution have said that if Mrs Najera pleads guilty to the indictment, they would not proceed against Mr Najera
2	The trial judge, when sentencing Beryl O’Shea to a period of 9 months imprisonment, suspended on the ground of lapse of time, said “the lapse of time, therefore, becomes a factor in the sentencing exercise that I have to undertake that will not necessarily apply to others convicted”.
3.	The trial judge, when sentencing Valerie Milsom, said that the length of the wait was the factor which justified the suspension of the sentence.
4.	Mrs Najera continues to profess her innocence. In the light of the matter set out above, however, Mrs Najera wishes a plea of guilty to be entered on her behalf.”
47.	The grounds of appeal allege in respect of the prosecution 
“The appellant contends that the Crown made an error of judgment in not reaching and communicating a decision not to proceed against Mr Najera independently of the plea of guilty against Mrs Najera because:
i.	In addition in deciding not to proceed against Mr O’Shea, the Crown had decided not to proceed against Mr Milsom (the husband of another sister in a comparable position).  It must have been obvious that to place Mrs Najera in the position of reaching a conclusion which affected the potential liberty of her husband in circumstances where pleas of guilty by her sisters had freed their husbands from such risk would put undue pressure on her to reach one conclusion rather than another; and
ii.	In the subsequent prosecution application to let the matters against Mr Najera lie on the file following his wife’s plea of guilty, the Crown made clear their view that in respect of one count they had, following the handwriting experts report in June that there was “no cogent evidence” to support one count and were dependant in another of making the assertion “he must have known” based upon some events which were ipso facto; and
iii.	It was clear from the sentencing remarks of the learned judge that his mind was also affected by whether or not the defendant in question had participated in the destruction of documents.  The Crown alleged, but had no admissible evidence before the start of the trial, that Mr Najera might have been so involved.  This increased the pressure on Mrs Najera to plead guilty rather than put her husband at risk of conviction and sentence to an immediate custodial sentence.”
48.	In further grounds subsequently settled they added to that allegation the following;
“The appellant will also argue that the failure to communicate to the appellant that no allegation would be made of the destruction of documents for any purpose, notwithstanding the Crown’s concession made to the learned judge some few hours later in the course of the application that the learned judge should disqualify himself from hearing the Harrovian Leisure trial on the grounds of bias compounded the error of judgment alleged by the appellant”.
49.	We have looked with care at the conduct of the prosecution and we can say in simple terms that we can find no fault whatsoever with it.  The question of the pressures on one defendant when a close relative is a co-accused were considered and acknowledged by the court in Herbert.  They are an inevitable part of the process unless the prosecution have “cynically” proceeded against the relation to put pressure on the accused.  It is not suggested in this case that in prosecuting the appellant’s husband the prosecution were “cynically” trying to bring pressure to bear on the appellant or that they were acting with any improper motive in not dropping the prosecution against him.
50.	The prosecution's position, as explained to defence counsel, was that they were intending to proceed to a trial against both the appellant and her husband if the appellant continued to maintain her innocence.  As made clear by Taylor LJ in Herbert, the prosecution, if that was their position, were not merely entitled to give that information to the defence when it was requested but were likely to be the subject of justifiable criticism if they did not.
51.	Where two closely connected persons are jointly charged with offences and where the evidence is considerably stronger against one than the other, the prosecution may perfectly properly take the view that whilst it would not serve the interests of justice to proceed against the defendant in respect of whom the evidence was less strong if he stood alone, the position would be different if both defendants were denying the matter.  To drop the case against one might open up the possibility that the other would falsely assert that he or she had acted innocently at the behest of the person against whom the case had been dropped.  Further the cost of a trial of the two and the court’s time occupied by such a trial would be little more than the cost of and time occupied by a trial against the person in respect of whom the evidence was stronger alone.  However the cost of and time involved in a free-standing trial of the second person alone might be wholly disproportionate to the prospects of success.
52.	Clearly if the evidence does not reveal a prima facie case against one defendant, the prosecution should say so at once.  However, in each of the three cases of Mr O’Shea, Mr Milsom and Mr Najera, the Crown concluded that there was a prima facie case that could be advanced.  We have seen the prosecution openings in each of these matters and the prosecution’s conclusion in each cannot sensibly be disputed.  The strength of the cases might be the subject of differing views but not the fact that there was a prima facie case.
53.	Thus each of the husbands would have faced a trial if his wife had not pleaded guilty and the Crown having reached the conclusion that pleas from the wives would sufficiently meet the interests of justice were entirely right to communicate those views to the defence when asked for such information.
54.	In Mr Najera’s case the fact that the Crown had not proceeded against Mr O’Shea or Mr Milsom did not in any way disqualify them from proceeding against Mr Najera.  That would have been the case even if the strength of the case against Mr O’Shea and Mr Milsom was the same as that against Mr Najera.  In fact because of the documentary evidence, the case against Mr Najera was stronger than those against the other two and certainly would have merited consideration by a jury if the prosecution had taken a different stance.
55.	In these circumstances, it is only necessary to consider further the question of whether the prosecution were at fault in not making clear to the defence that they were not going to suggest that Mr Najera was implicated in the destruction of documents.  The defence asserts that there was “no admissible evidence” that “Mr Najera might have been so involved”.  If there was no such evidence against Mr Najera, it followed that he was at no risk of such a finding by the judge and accordingly counsel were in a position to advise the appellant that this need not be a concern.  We have read the opening in the proposed trial of the Najeras.  If this allegation was to feature in the prosecution case against Mr Najera, the prosecution clearly would have set it out in that opening but there is neither mention nor hint that this was a matter they might suggest during the trial.
56.	It is further the recollection of prosecuting counsel that counsel for Mr Najera had asked whether the Crown relied on any such suggestion against their client and had been informed that the Crown relied only on the documents served in the bundle against Mr Najera which contained no such suggestion.  If Mrs Najera herself was concerned about this aspect of the matter and was unaware of what had been said to her husband’s counsel, we cannot begin to understand why Mr Hubbard did not ask prosecuting counsel about it.  He had received the maximum of assistance on his other enquires and we have no doubt that this query would have been answered just as emphatically.
57.	The reason why no such request was made may well be that it was not a matter uppermost in the mind of the appellant at the time.  Certainly when one turns to her reasons for pleading guilty endorsed on her counsel’s brief as set out above, this aspect is conspicuous by its absence.  Reference is certainly made to the Crown’s position in relation to Mr Najera but no concern is voiced that he may be in a worse position because he might be found to have destroyed documents.
58.	Turning next to the criticism levelled at the judge, reference is made to that part of the sentencing remarks in respect of Mrs O’Shea where the judge said:
“The lapse of time, therefore, becomes a factor in the sentencing exercise that I have to undertake that will not necessarily apply to others convicted”.
59.	It is contended that those remarks caused the appellant to believe:
1.	That the remarks were addressed to her since she was present at the time and must have been recognised by the judge having appeared before him on earlier interlocutory applications; and
2.	That they were intended to convey to her that on a plea of not guilty the outcome would not necessarily be the same.
60.	Further reliance is placed upon the fact that in sentencing Mrs Milsom the judge made similar observations and included in his sentencing remarks:
“It is important that you and the public, together with anyone else, who has an interest in today’s proceedings should understand the basis on which I have imposed this particular sentence”.
It is said that it was “clear that anyone else was Mr and Mrs Milsom and those representing her (and him)”.
61.	It is contended that these remarks amounted to improper pressure contrary to the guidance given by Lord Parker CJ in Turner.
62.	We are far from persuaded that the judge was aware that the appellant was sitting in court when he sentenced Mrs O’Shea .  The chances that he could pick out someone in the public gallery and correctly identify them as an accused in the related matter when all that had happened was for her to appear in the dock with others at preliminary hearings seems to us singularly unlikely.
63.	However, even if that assumption was to be made, it is necessary to examine what the judge did say.  Mrs O’Shea had admitted involvement in a serious fraudulent offence.  As he rightly observed it merited imprisonment.  He could, in accordance with Section 5 of the Criminal Justice Act 1991, only suspend that sentence if he was “of the opinion…that the exercise of the power can be justified by the exceptional circumstances of the case”.  Clearly in passing such a sentence he had an obligation to explain to Mrs O’Shea, to the victims, to the public at large and to anyone else involved in the case who might also fall to be sentenced and whose expectations of the outcome of their case might thereby be affected, his reasons for concluding that there were exceptional circumstances.
64.	Listening to the remarks which we have set out above, any listener could only conclude:
(1).	That the judge considered the criminality involved merited imprisonment;
(2).	That a person, who was not responsible for the delay, was entitled to a lesser sentence because of the delay factor;
(3).	In the case of Mrs O’Shea, and by implication any one in a similar position, that the delay made the difference between an immediate sentence and a suspended sentence; and
(4).	That delay would not necessarily have the same consequences for a person who had brought it about.
(1) (2) and (3) were necessary for the judge to make clear in order to explain his sentence.  (4) was necessary to prevent others in a different position from asserting that the sentence had given rise to a legitimate expectation that they would not go to prison.
65.	Accordingly we are satisfied that these remarks not only were not improper but that the judge would have been at fault if he had not made each of those matters clear.
66.	The suggestion that by saying that similar consideration would not necessarily apply to others “convicted” meant that a person who stood trial and was convicted would not receive a suspended sentence so as to put pressure on other defendants, with every respect to counsel, is nothing short of nonsense.  A person cannot fall to be sentenced unless they have been convicted, whether on their own admission or on the verdict of a jury.  In no sense was the word “convicted” being used as shorthand for “convicted by a jury”.
67.	Even if such a thought had entered someone’s mind it would clearly have been dispelled by the totality of what the judge said.  The judge made quite clear that his sole reason for suspending the sentence was the delay and did not in any way couple that factor with the fact of a guilty plea.  He then went on to explain that he took the guilty plea into account in determining the appropriate length of the sentence which was to be passed and then suspended.
68.	That which we have said about the sentencing of Mrs O’Shea applies equally to the sentencing of Mrs Milsom.  The one factor added by counsel on behalf of the appellant relates to the judge’s reference to the importance of his sentencing remarks to Mrs Milsom “and the public together with any one else who has an interest in today’s proceedings”.
69.	We fail to see how criticism can be made of this remark.  Just as for Mrs O’Shea, the sentencing remarks made to Mrs Milsom were of importance to her, but they were equally of importance to the public and to others.  The others included both the victims and others awaiting sentence for related matters and others who might at some stage fall to be sentenced.  The judge had a clear duty not to give rise to any legitimate expectation in any other defendant that they would necessarily be sentenced in the same way if that was not the case.  He never said anything to suggest that the decision as to whether a sentence would be suspended or immediate depended upon a plea of guilty.  His sole reason given for suspending sentence on Mrs Milsom related to the delay, which again he found was not in any way attributable to her actions.
70.	Once more we consider that the criticism levelled at the judge when he came to sentence Mrs Milsom is entirely misplaced. 
71.	For the reasons we have given we are satisfied that there was no improper pressure brought to bear upon the appellant either by the prosecution or by the judge and that accordingly her appeal against conviction must fail since none of the grounds advanced are made out.
72.	Before leaving this aspect of the case and turning to the costs order, we ought to deal with one other matter that has caused us concern.  It immediately seemed to each member of the court on reading the papers in this case that it could not be right in such circumstances for defence counsel to simply behave as if the plea was an unequivocal plea freely entered into and then lodge grounds of appeal asserting the contrary.  Of course, we have not had the advantage of hearing Mr Hubbard’s explanation for his actions and we have some sympathy for Miss Andrews, who was not the person making the ultimate decisions but who has had to face our probing in this regard.
73.	The Code of Conduct of the Bar specifically deals with the duty of counsel where a defendant indicates a desire to plead guilty but maintains in conference his or her innocence (see Code- Written standards applicable to criminal cases 12.5.1 to 12.5.3.).  We can see no reason to doubt the sound advice given in those paragraphs.  Where a defendant of his or her own free choice pleads guilty whilst maintaining his or her innocence to counsel, provided counsel has taken the steps set out in the standards, there is no duty on counsel to diminish the mitigating effect of the plea of guilty by revealing that in private the defendant is still asserting innocence.
74.	However, paragraph 12.5.1(b) requires counsel to explore with the defendant why he wishes to plead guilty to a charge which he says he did not commit.  Clearly that was done in this case.  The paragraph also requires counsel to explore:
“Whether any steps can be taken which would enable him to enter a plea of not guilty in accordance with his profession of innocence”.
75.	It seems to us that the defence counsel placed in the position in which they found themselves in this case could, and probably should, have done more in this respect.  First they could if it was an issue, have established whether the prosecution intended to suggest that Mr Najera was a party to the destruction of the documents.  Secondly, and much more importantly, they could, and we consider should, have raised with the judge what they contended was his improper pressure and asked him to disqualify himself from dealing with the case further.
76.	We certainly do not consider that counsel can sit back and allow the court to believe that a plea of guilty which has every appearance of being freely entered into was one in respect of which they will subsequently submit that the judge had placed improper pressure on the defendant causing that plea.  If the matter had been raised in this case, the judge would inevitably have repeated his explanation for passing suspended sentences on the appellant’s two sisters and re-affirmed that the reason was not their admission of guilt.  
77.	We are anxious not to be over critical of counsel, particularly as we have not heard directly from Mr Hubbard, but in similar circumstances in the future we make clear our view is that if there are such concerns, there is a duty to raise them with the judge, and afford him the opportunity to correct any misunderstandings that may have arisen or to disqualify himself from further dealings with the case.
78.	However, in this case, we are satisfied that even if Counsel had raised such matters, the appellant would still have entered her pleas of guilty which did not result from any improper pressure upon her and that accordingly such convictions are safe.
79.	Turning to the question of costs, the argument advanced is that since the appellant was not in work, the court could not have made an order for costs against her.  
80.	It is necessary to record what happened during the sentencing process.  The Crown indicated that the costs in relation to this appellant were of the order of £5,000.  This was done in open court and therefore, in the presence of the appellant and her counsel.  Counsel for the appellant were, therefore, on notice that the court would be considering making such an order for costs.  Since each sister had been ordered to pay £1,000, it was all the more clear that an order of that magnitude was a real possibility.
81.	As is made clear in R-v- Northallerton Magistrates Court ex p. Dove [2000] 1 Cr. App. R. (s) 136, a defendant facing a financial penalty by way of fine or order to pay costs to a prosecutor is required to provide such data as is relevant to his or her financial position so as to enable an assessment to be made of what he or she can pay.  In the absence of such information, the court can draw reasonable inferences as to the defendant’s means.  
82.	In this case Mr Hubbard’s response to a direct invitation by the judge to deal with the matter of costs was to say :
“My Lord, there is a slight difference here.  Monthly her husband will pay them.  She does not work..  She is not able to.  She has two children, who do not even attend nursery school yet.  She has no savings.  The breadwinner is her husband.  I simply propose this -- obviously, it is for your Lordship to decide -- but putting the question somewhat rhetorically, is it right for the husband not being proceeded with by the Crown to find costs”.
83.	In a family where the wife remains at home caring for the family, she clearly has an entitlement to a share of the family income.  Thus she is in a position to pay costs out of that entitlement.  If a husband were to deny his wife that to which she was entitled, she would be in a position as a matter of last resort to apply to the courts.  In this case it was being asserted that the husband would provide from the family budget the necessary funds.  It was, thus, perfectly proper for the judge to conclude upon what he had been told that the appellant had an available source of income out of which she could discharge an order for costs.  It was never suggested that the figures which must have been known to Counsel were not capable of being met out of the family budget and accordingly we are satisfied that the judge was entitled to make the order that he did.  For these reasons the appeal against costs will also be dismissed.
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(A costs application was made by the Crown against the appellant in the sum of £6,000.)
LORD JUSTICE KAY:  We consider the appropriate order to make is no order that she should pay the costs.  That is largely on the basis that this was an appeal in which she was legally aided.  The matter was considered by the single judge.  The single judge thought it merited consideration by the Court.  In those circumstances it is not normal to order that an appellant pay the costs where she is legally aided.  We see no reason to depart from the normal course in this particular case, so we make no order.