Case No: 1999 00819 Z4
Neutral Citation Number: [2002] EWCA Crim 2661
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 22nd November 2002
Before :

LORD JUSTICE LONGMORE
MR JUSTICE HOLLAND
and 
HIS HONOUR JUDGE FINDLAY BAKER
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Between :

	TERRY THOMAS PEFFER	Appellant	
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	REGINA	Respondent	

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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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JULIAN KNOWLES Esq
(instructed by Oury Clark) for the Appellant
JAMES CURTIS Esq QC
(instructed by CPS) for the Respondent

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Longmore: 
1.	On 10th September 1990 in the Crown Court at Southwark before Her Honour Judge Pearlman the applicant pleaded guilty to fraudulent trading contrary to section 458 of the Companies Act 1985 (Count 1).  It was ordered that Counts 2 to 13 inclusive, of conspiracy to obtain property by deception, conspiracy to evade liability by deception, and five pairs of counts, each of obtaining property by deception and evasion of liability by deception, remain on the file.
2.	On 18th January 1991 (following the trial, and acquittal, of a co-accused) the applicant was sentenced to 2 years 10 months imprisonment.  A second co-accused Roland Cartwright also pleaded guilty to Count 1, and was sentenced to 3 years imprisonment.  They were both disqualified from being directors of or concerned in the management of any company for 11 years.
3.	The applicant thereafter sought leave to appeal against his sentence.  At a later date he sought leave to appeal out of time against conviction, in spite of his plea of guilty.  In March 1991 Waterhouse J gave leave to appeal against both conviction and sentence, refused bail and ordered an expedited hearing.  It is accepted that the applicant abandoned his appeal against conviction before his appeal against sentence was heard and dismissed on 14th June 1991.  The relevant Form A has long since been lost.  He now applies to the Full Court, more than 10 years later, for leave to withdraw the Notice of Abandonment as a nullity.  He is represented by new solicitors and Mr Julian Knowles of counsel.
4.	The applicant and Mr Cartwright were directors of an English company, Harrington Grange Ltd, incorporated in 1985, which acquired land in Spain on which it was proposed to build apartments to be sold on a time-share basis.  Although it was accepted that the venture was not begun with an intent to obtain dishonest enrichment, it was from the outset seriously underfunded and conducted with financial irresponsibility.  Time-share agreements were sold to the general public through an active and energetic sales campaign, and this was continued beyond April 1986, by which time the directors knew that there was no hope that the venture would succeed with the resources available.  The company was by then clearly insolvent and its management dishonest.  At some stage, the applicant left England for Spain and had to be extradited in circumstances we will have to describe.
5.	In May 1986 the land in Spain was transferred to a Spanish company of which the applicant and Mr Cartwright were the shareholders.  Harrington Grange Ltd did not appear to receive proper payment for it, and the company was wound up in March 1987.  Its liabilities amounted to about £318,000, of which £125,000 was owed to those who had bought time-share agreements.
6.	The Judge considered that a sentence of 4 years imprisonment was appropriate for both the applicant and Mr Cartwright.  In the case of Mr Cartwright she reduced the sentence to 3 years, in the light of a Compensation Order in the sum of £18,000 (the sum in his Spanish bank account).  In the case of the applicant she reduced the sentence to 2 years 10 months, to take account of the fact that he had spent 13 or 14 months in custody in Spain awaiting extradition.
7.	The applicant’s appeal against that sentence was on the Grounds that the reduction of 14 months in respect of the time spent in custody in Spain was inadequate.  The reduction should have been 21 months, to take account of the remission that would have been earned in those days, had he been serving his sentence in an English prison.  The Court of Appeal rejected that argument and dismissed the appeal.  It is reported as Peffer at (1992) 13 CARS 150.
8.	The circumstances of Mr Peffer’s extradition were that, on 30th November 1988 a warrant was issued for the applicant’s arrest, specifying seven offences of obtaining property by deception, two of theft and one of perjury.  On 24th April 1989 he was arrested in Spain on that extradition warrant and remanded in custody.  On 11th October 1989 a second warrant was issued for his arrest, specifying one offence of fraudulent trading, one of conspiracy to obtain by deception, and one of conspiracy to evade liability, as the CPS wanted to proceed against him on the same charges as those on which his co-accused had been indicted.
9.	On 6th March 1990 the Audiencia Nacional, the relevant Spanish Court, granted the first request for extradition, the applicant having unsuccessfully opposed it.  He continued in custody.  On 9th April 1990 the second request for extradition was granted, also by the Audiencia Nacional.  The applicant did not contest it.  On 10th June 1990 he was extradited to the UK from Spain.  On 10th September 1990 he pleaded guilty at Southwark, as we have said, to a single count of fraudulent trading and thereafter sentenced.
10.	Six weeks after sentence had been passed, on 1st March 1991 the CPS wrote to his then solicitors Messrs Reynolds Dawson expressing concern that fraudulent trading was not an extradition crime for which the appellant could be extradited from Spain by reason of the definition of an “extraditable crime” in the 1989 Act, Schedule 1, para 20, and that the applicant’s conviction might therefore be “ultra vires”.  It was this that caused the applicant to apply for leave to appeal against conviction out of time on grounds settled by trial counsel and dated 15th March 1991.  It was submitted that the extradition and subsequent conviction of the applicant for the offence of fraudulent trading was “ultra vires” because extradition had been granted for offences of theft and perjury pursuant to the first extradition warrant of 30th November 1988.  These “grounds” are one of the few documents that have survived for the purpose of this application.  The court’s file was destroyed after 7 years had elapsed.  The applicant’s solicitors’ file has also been lost or destroyed.  Neither of these facts is in the least surprising.
11.	Another document which has survived, however, is a letter of 22nd April 1991 from the CPS to the Home Office.  This was produced from CPS files by Mr James Curtis QC who as junior counsel had appeared for the prosecution at Southwark and re-appeared before us by the direction of Judge LJ, made on 30th October 2000, when this application was first listed but had to be taken out of the list at Mr Knowles’ request.  That letter records the orders made by Waterhouse J in March 1991 and stated that he asked for evidence on two questions:-
(1)	whether the applicant was returned to England pursuant to the procedure for extradition or whether he returned voluntarily;
(2)	if he was returned under the procedure for extradition, what the terms of his surrender were “bearing in mind that extradition was sought on two warrants dated 30th November 1988 and 11th October 1989 respectively”.
The CPS were able to ascertain the answer to the first question because the Foreign Office had already received the certificate of the Secretary to the Audiencia Nacional setting out the decision of that court on 9th April 1990 which stated that the applicant had appeared on 30th March 1990 and expressed his consent to the surrender under the second warrant and that it had accordingly been resolved to grant the applicant’s extradition on the grounds mentioned in that warrant of 11th October 1989, without prejudice to any subsequent decision within the competence of the Spanish government.  It thus became accepted on all sides that when the applicant returned on 10th June 1990 he had not voluntarily returned.
12.	It did not take long for the CPS to discover the answer to the second question raised by Waterhouse J.  By reference to a telex from the British Ambassador in Madrid to the Foreign Office of 25th April 1990, which stated that the Audiencia Nacional had agreed extradition in respect of the requests put forward in both the warrant of 30th November 1988 and the warrant of 11th October 1989, the CPS were able to inform the applicant’s solicitors on 30th April 1991:-
“the extradition agreed by Spain was in respect of all offences for which extradition had been asked.”
(This exchange was also produced for us at the hearing.)  It was, therefore, clear by May 1991 that the Spanish courts had extradited the applicant for, among other offences, the offence of fraudulent trading.
13.	Soon after this it became clear (contrary, perhaps, to the impression given in the CPS letter of 1st March 1991) that the Crown were not going to concede the appeal against conviction, so the applicant’s solicitors and counsel looked at the matter again.  That led to a letter of 10th June 1991 from Mr Colin Reynolds of his solicitors to the applicant which stated:-
“Like you, we were always satisfied that your return to this Country was as a result of extradition proceedings rather than on a voluntary basis.
We have now been shown further evidence from the British Consulate in Madrid and other documents relating to your extradition, which tend to suggest that the point which was taken when the original application for leave to appeal against conviction was lodged is not perhaps now properly one which can be urged on your behalf.
As you will recall, I discussed with you the distinction to be drawn between the current and old legislation and what seemed to have been the case so far as you are concerned.
As a result of the information which has now been provided, we feel it would be unsafe to proceed in relation to the appeal against conviction and therefore have abandoned that.
As you know, it has in any event proved a helpful means of securing you an earlier date than otherwise would have been the case in relation to your appeal against sentence.  Indeed the Court of Appeal recently were indicating they may put the case back because of the appeal against conviction, but we have advised them of the situation, and I am pleased to report that the appeal against sentence will proceed as planned on the 14th June in any event.
Clearly the matter can be discussed at length with Peter Cooper when you see him on Friday, but for the moment I thought I should write and confirm the position.”
14.	On 12th or 13th June 1991 the applicant states that a prison officer gave him “some court paperwork” and told him to sign a letter to the Court of Appeal Registrar to withdraw his appeal against conviction, which he did.  (As we have said, no Form A has been found.)  On 14th June 1991 the applicant attended court, together with his solicitor and more senior Counsel, Peter Cooper (who was to become QC in 1993), and his appeal against sentence was dismissed. 
15.	Mr Peffer has now made a statement for the court of 10th August 2000 saying that, although he signed the papers brought to the prison withdrawing his appeal against conviction, he had not been told of any reason for that appeal being abandoned.  He agrees he had a conference with Peter Cooper (and, he says, Mr Reynolds his solicitor but Reynolds was in fact at another court) before the hearing on 14th June and, according to him, they said they had abandoned the appeal because it looked as if he had returned voluntarily.  He says further that the appeal was dismissed and that it was only after he returned to prison that he saw the letter of 10th June.
16.	Nevertheless it can be discerned that there were two problems about the appeal against conviction going ahead in June 1991.  First that the Crown would oppose the appeal on the possibly persuasive ground that the applicant had been extradited under the second warrant specifically for the offence of fraudulent trading and second that if the appeal was pursued, neither it nor, therefore, the sentence appeal would go ahead on the expedited date.  This second aspect is confirmed by the fact that it was Mr Peffer’s own recollection on consulting new solicitors, as recorded in Ms Colhoun’s letters to Mr Reynolds of 22nd September 1998 and 6th July 1999.  The latter letter says in terms that Mr Peffer’s recollection was:-
“that he was advised both by you and Peter Cooper that he was likely to receive a substantial reduction of sentence” but that “if he proceeded with his appeal against conviction CPS would need time to prepare their case, therefore delaying considerably his release.”
Mr Cooper, who represented the applicant at his appeal, although asked about the reasons for the withdrawal of the appeal against conviction, could not, before he unfortunately died, recollect anything useful about the matter.  The earlier junior, Mr James Dawson, could however say this on 28th November 2000.
“My recollection of the matter is that the Applicant always maintained that after his arrest in Spain there came a point when he did not resist his extradition to the United Kingdom. This was an important part of his mitigation in that it was argued on his behalf that time spent in custody in Spain should be deducted from his sentence by the Learned Judge since there was no provision in law for that time spent to be counted off his sentence.
Grounds of Appeal were settled on the basis that the Learned sentencing Judge had failed to give any or any appropriate credit for time spent in custody.
Before this Appeal was heard the Crown Prosecution Extradition Department contact[ed] Reynolds Dawson expressing a concern over the validity of the extradition.  I was instructed to draft Grounds of Appeals and leave to Appeal was granted.
I was sufficiently confident of the strength of the Appeal that I applied for bail on behalf of the Appellant.  The Court having heard the Application refused but granted an expedited hearing of the full Appeal.
I was not present at the Appeal and cannot comment on what was discussed.”
17.	Once the applicant’s appeal against sentence had been dismissed, he was distressed not merely by the decision of the Court but also by the advice he had received.  He complained both to Mr Cooper and to Mr Reynolds mainly in relation to the advice he had been given in relation to his original plea of guilty and the hopes that had been aroused by advice given about the prospects of appeal against sentence.  Mr Knowles, at the hearing of the application, was able to produce a long handwritten letter of 21st July 1991 from Mr Cooper dealing with both the plea and the sentence.  In relation to the appeal against conviction Mr Cooper said more shortly:-
“Our confidence in an appeal against conviction rose when it was believed that extradition proceedings were invalid.  When we discovered that was not the case, the chances of success evaporated.”
In passing on that letter to Mr Peffer in prison on 23rd July 1991, Mr Reynolds said:-
“For my own part, I have considered very carefully the full attendance notes in relation to the various conferences which you had with Peter Cooper and James Dawson, and also indeed our last meeting before the final conference.”  (These attendance notes have all now disappeared.)
It is clear from these letters that the position about the appeal against conviction must have been fully discussed with Mr Peffer and that there can be no question of it having been abandoned without instructions.  Indeed, Mr Peffer accepts that he did sign a Form A even though it cannot now be found.
18.	It is now settled that the court can only grant leave to withdraw a notice of abandonment of an appeal if it is satisfied that the abandonment was a nullity in the sense that the abandonment was not the result of a deliberate and informed decision, see R v Medway [1976] QB 779.  Thus it is for the applicant to satisfy the court that the abandonment was not the result of a deliberate and informed decision.  This is a difficult matter of which to satisfy the court when the application is made so long after the event and the solicitors file with its attendance notes has been destroyed.
19.	Mr Knowles submits that Mr Cooper must have advised that the appeal should be abandoned because he (wrongly) formed the view that Mr Peffer had voluntarily returned to England.  That is not at all likely since Mr Reynold’s letter of 10th June 1991 says in terms that they were always satisfied that Mr Peffer had not returned voluntarily.  It is much more likely that the advice was given on the basis that, after the information had come from Spain to the effect that Mr Peffer was extradited pursuant to both warrants including the second warrant for fraudulent trading, the appeal against conviction could not be supported.  Mr Knowles said that was wrong advice also.  But that must be very much more doubtful since the Spanish court obviously considered that they were entitled to extradite Mr Peffer on that ground.
20.	Be that as it may, the above narrative shows that the abandonment of the appeal against conviction was part of the tactics of the case as a whole.  First, it had become clear that the conviction appeal was now going to be fully contested; there was a natural anxiety to keep the expedited date of hearing for the appeal against sentence.  Second, as Mr Dawson observed in November 2000, the contention that Mr Peffer did not resist extradition proceedings (even if it may have wrongly coloured the advice given by counsel) was “an important part of his mitigation”, see Jowitt J at page 153 of the report of the sentence appeal.  Third, we draw attention to the grounds for, and the merits of the appeal against conviction.  As already pointed out the application of the 15th March 1991 was based upon the premise that the extradition had been pursuant to the first warrant.  If that premise had been factually valid then the prospects for the appeal were indeed good:  arguably the applicant could not have been lawfully indicted for fraudulent trading such not being encompassed by that warrant.  In the event that premise was undermined by the letter from the CPS of the 30th April 1991 and the resultant intimation to the applicant’s advisers that he had in fact been extradited for, amongst other offences, fraudulent trading as sought by the second warrant.  We are satisfied that it was in the light of this development that these advisers properly reassessed the merits of the appeal against conviction and reasonably advised the applicant as appears from the solicitor’s letter of the 10th June 1991.  We are quite unable to categorise the advice then given to the applicant as wrong.  Fourth, it is likely that advice was given to Mr Peffer before he signed the Notice of Abandonment otherwise it is unlikely he would have signed that document.  Even if that is not right, he did get advice on the morning of the hearing.  If he had not in fact wished to abandon his appeal, he could have sought leave to withdraw the Notice of Abandonment at a time when events were fixed in everyone’s memory.  If he had, his sentence appeal would have been further adjourned.
21.	In the light of Mr Peffer’s position in June 1991 and, after the considerable lapse of time that has occurred with the destruction of many relevant documents, we cannot be remotely satisfied that the decision to abandon the appeal against conviction was anything other than informed and deliberate.  Indeed on the material that has survived we are satisfied that Mr Peffer knew what he was signing when he abandoned his appeal.  It is for these reasons that we decided on 8th November that the application to treat the abandonment as a nullity must be dismissed
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LORD JUSTICE LONGMORE:    On 8th November this court (composed of myself, Mr Justice Holland and His Honour Judge Findlay Baker) heard an application to treat a notice of abandonment as a nullity.  We dismissed that application and said that we would give our reasons at a later date.  This is the date on which I now, on behalf of the court, hand down our reasons.  They are in written form and so there is no need to read them out.  They can be distributed to anyone who is interested.  I have excused the parties from attendance because there is no further order which the court needs, in the circumstances, to make.