R v Andrew James Pilley

[2026] EWCA Crim 384 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT PRESTON (HIS HONOUR JUDGE KNOWLES KC) [T20210682] Royal Courts of Justice The Strand London WC2A 2LL Case No 2024/02721/B3 Wednesday 25 February 2026 B e f o r e: THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION (Lord Justice Edis) MRS JUSTICE O'FARRELL DBE THE RECORDER OF LIVERPOOL (His Honour Judge Menary KC) (Sitting as a Judge of the Court of Appeal Criminal Division) ____________________ R E X - v - ANDREW JAMES PILLEY ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) ____________________ Mr A Darbishire KC and Mr A Bunyan appeared on behalf of the Applicant Mr A Thomas KC appeared on behalf of the Crown ____________________ J U D G M E N T ____________________ Wednesday 25 February 2026 LORD JUSTICE EDIS: Introduction 1. The applicant, Andrew James Pilley, applies for an extension of time in which to seek leave to appeal against his conviction after a lengthy trial in the Crown Court at Preston before His Honour Judge Knowles KC and a jury. The trial started in October 2022 and concluded in May 2023. The applicant was convicted of two counts of fraudulent trading, contrary to section 993 of the Companies Act 2006 (counts 1 and 2), one count of being concerned in an arrangement facilitating criminal property, contrary to section 328 of the Proceeds of Crime Act 2002 (count 3), and one count of fraud by misrepresentation, contrary to sections 1 and 2 of the Fraud Act 2006 (count 4). On 4 July 2023, he was sentenced to a total of 13 years' imprisonment. 2. The basis of the application was phrased in what was then a second ground of appeal and relies upon the impact of the applicant's recent diagnoses of Attention Deficit Hyperactivity Disorder ("ADHD") and alleged associated cognitive impairment, upon the safety of the convictions. 3. The applicant had originally also advanced a separate ground of appeal relating to an alleged jury irregularity arising from matters concerning a juror who had been discharged during the trial. That ground was considered in an earlier judgment of a different constitution of this court which refused leave to appeal. This judgment, therefore, concerns entirely the second ground of appeal which relies substantially on fresh psychological evidence. 4. The fundamental argument advanced on behalf of the applicant is that his convictions are unsafe because at the time of the trial neither the court nor the jury – nor anyone else – was aware that he suffered from ADHD (a neurodevelopmental condition), or of his impaired intellectual functioning. This lack of awareness is said to have placed him at a disadvantage in preparing for trial, in giving instructions to his lawyers, and in particular when giving evidence in his own defence. It is said that at that stage in the proceedings his presentation in the witness box may have been misunderstood as being evasive or manipulative, whereas it might have been a manifestation of his disability. 5. It is also submitted that evidence of ADHD may have supported the applicant's defence evidentially in that he relied on his inability to attend to matters of detail in his business. He said that for this reason he was not aware of the mis-selling, which was an important part of the prosecution case against him, whereas otherwise he might have expected to be so, because an inability to give attention to detail may be a manifestation of ADHD. It is submitted that the new evidence may therefore have been relevant not only to the conduct and management of the trial, but to the substantive issues which the jury had to resolve. 6. The respondent resists the application, arguing that any disability was modest and that a proper consideration of all the evidence about the applicant's abilities demonstrates that he could and did participate effectively in his trial and that the convictions are therefore safe. The Factual Background 7. It is not necessary for the purposes of this ground of appeal to rehearse in detail the case which was placed before the jury over the many months that the trial lasted. It is necessary to summarise its essential features, because they bear on what was known at the time, and what is still known, about the intellectual functioning of the applicant. 8. He was the founder, director and controlling figure behind a group of energy supply companies known collectively as "the BES Group", together with an associated energy contract aggregator company, Commercial Power. The prosecution alleged that over a period exceeding two years the applicant caused or permitted systemic telesales fraud perpetrated by ostensibly independent brokerage firms which in reality were controlled by, or operated for the benefit of, the applicant's companies. 9. That fraudulent conduct involved mis-selling energy contracts to micro businesses through misleading misrepresentations and dishonest sales practices. The Crown's case was that the applicant either knew or deliberately turned a blind eye to the dishonest conduct and that he profited from it through the revenues generated by the contracts which were obtained by this means. 10. Counts 1 to 3 of the indictment related to that activity. Count 2 concerned attempts to mislead an investigation into it by the regulator; and count 3 concerned receiving the proceeds of these frauds as criminal property. 11. Count 4 involved a separate and distinct fraud. It alleged a dishonest campaign designed to damage commercial competitors through false representations about them on internet forums. Its facts may illustrate something about the applicant's level of intellectual functioning at the time of the matters which led to the trial. The judge, when sentencing, said this about count 4: "In 2014 a salesman, who had worked in the companies concerned in this case, was working for a local rival. By chance he told a string of lies in a sales call to one of [the applicant's] staff, who recorded the call. … [The applicant] sought revenge. He then arranged for two employees, one very junior and open to influence and promised a juicy bonus by him, to run a campaign on two internet forums. He caused fabricated posts to be made and promoted. They purported to be by customers and a former employee of the rival energy business. The intention was to cut its sales and drive down its share price. He [the applicant] said it was time for some serious pain heading their way, that the campaign was to be planned with military precision and that he had never been so determined in his life. He planned the detail, used his employees' skills to make best use of the forums and drafted a key post himself." 12. The trial lasted approximately seven months. It involved a substantial body of documentary evidence, including emails, call recordings, internal company communications and regulatory material. 13. The applicant gave evidence over an extended period and was subjected to lengthy and robust cross-examination. He was in the witness box over the course of 18 days at the trial. These days were spread over a much longer period between January and mid-April 2023 because of significant interruptions to the running of the trial caused by illness and a juror's holiday. His examination in chief lasted many days. In it he set out his case at great length and produced files of documents for the jury. He was taken through those files of documents by his leading counsel and by that means, before suffering any disadvantage in cross- examination, had set out his own case before the jury in precisely the way that he wanted to. The Application to Call Fresh Psychological Evidence 14. The applicant now seeks to rely upon fresh expert evidence, pursuant to section 23 of the Criminal Appeal Act 1968, primarily in the form of reports from clinical forensic psychologists now instructed on his behalf. These are Professor Susan Young, who gave evidence orally before us, and Professor Gísli Guðjónsson, who provided a written report but did not give evidence before us. In addition to the psychologists, the fresh evidence includes the evidence of Mr Jonathan Laidlaw KC, who was leading counsel for the applicant at the time of the trial. Mr Laidlaw has provided a substantial and detailed witness statement and gave oral evidence before us in the course of this hearing. 15. The respondent relies also on fresh evidence of its own, namely a series of reports by a chartered psychologist, Professor Stuart Brody. Professor Brody also gave evidence orally to us in the course of this hearing. 16. Section 23 of the Criminal Appeal Act 1968 provides: "(1) For the purposes of an appeal or an application for leave to appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice — … (c) receive any evidence which was not adduced in the proceedings from which the appeal lies." 17. Section 23(2) sets out the following particular considerations to which the court should have regard in deciding whether to admit such evidence: " … (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings." 18. There is no dispute as to the principles applicable, and it is unnecessary for us to address or resolve any novel points of law in the course of this judgment. 19. An appeal based on fresh evidence is no different from an appeal on any other ground in that the ultimate question is still whether the conviction is unsafe: see R v Pendleton [2001] UKHL 66, and R v Pabon [2018] EWCA Crim 420, at [60] to [64]. 20. As we have indicated, during the course of this hearing we have considered the fresh evidence, both its written form and orally from the witness box. We did that on the basis commonly described as "de bene esse". That means that we considered the fresh evidence in order to decide whether to receive it and not because we had already decided that we would do so. 21. The principal psychological expert witnesses, Professors Young and Brody, have prepared two joint experts' statements addressing areas of agreement and disagreement. It is important to record that it is common ground that the applicant has ADHD and that that condition had not been diagnosed at any stage until it came to the attention of the prison authorities following conviction and sentence. The central disputes concern: (1) the severity of the condition; (2) whether the applicant also suffers from clinically significant intellectual impairment; and (3) whether any such conditions materially affected his ability to participate effectively in the trial or otherwise rendered the convictions unsafe. The Psychological Evidence 22. Professor Young's first report, prepared in June 2024, followed a clinical assessment using accepted diagnostic criteria published in DSM-5. In it she concluded that the applicant met the criteria for a diagnosis of ADHD with combined presentation demonstrating significant symptoms of inattention and hyperactivity/impulsivity. 23. Her second report, dated February 2025, incorporated cognitive testing and material originating from the trial and additionally concluded that the applicant had impaired intellectual functioning with borderline IQ and particular weaknesses in processing speed and non-verbal reasoning. Professor Young's opinion was that the combination of ADHD and cognitive impairment would probably have placed the applicant at a disadvantage during the trial, particularly given the volume and complexity of documentary material, the sustained duration of the proceedings and the intensity of cross-examination. She further suggested that aspects of his courtroom demeanour, including argumentative or apparently evasive responses, might have been manifestations of neurodevelopmental difficulties, rather than conscious attempts to mislead, and that knowledge of his condition would have justified appropriate modifications or adaptations to the trial process, including the provision of an intermediary. Such evidence might also have assisted the jury in evaluating his behaviour and state of mind during the indictment period. 24. In later addenda, and in her evidence before us, Professor Young maintained these conclusions and was strongly critical of the methodology and interpretation adopted by Professor Brody, which was set out in a series of reports from him and on which Professor Young commented. 25. Professor Guðjónsson in his report essentially supported the conclusions of Professor Young, particularly in relation to the competence, qualification and methodology of Professor Brody. Professor Guðjónsson was also strongly critical of Professor Brody's competence to provide useful or valid expert psychological evidence to this court in this case. 26. In response, Professor Brody, as we have said, accepted the diagnosis of ADHD, but assessed the symptoms as mild and residual, rather than severe. He did not accept that the applicant had any clinically significant intellectual impairment. He expressed reservations about the validity of the IQ testing results and pointed to the applicant's business achievements and functional abilities, as demonstrated by the evidence in the case, as inconsistent with the suggested level of impairment. He concluded that the applicant's ADHD symptoms would not have had any significant impact upon his ability to participate in the trial and that his functioning was not materially different from that of many defendants encountered within the criminal justice system. 27. As we have said, the ability of Professor Brody to provide expert evidence in this case was the subject of substantial challenge on behalf of the applicant. He plainly possesses extensive experience and impressive academic credentials in the field of psychology. He has worked extensively in the United Kingdom, having first qualified in the United States of America, and later in his career worked also in the Czech Republic. He confirmed that he is, and has been for some time, a Fellow of the British Psychological Society and is entitled to use the title "chartered psychologist". However, he accepted that he was not currently qualified to provide clinical psychological services. He has not been qualified in that respect since moving to the United Kingdom from the United States of America in or about 1992. For this reason he was unable to undertake an independent clinical assessment of the applicant in ordinary clinical practice. His approach, therefore, was confined to a review of Professor Young's assessment, together with the administration of certain tests designed to test the validity of the applicant's performance when subjected to psychological testing. This battery of tests was described by the acronym PVTs (Performance Validity Test). These tests were designed to detect behaviour by the applicant during testing which might affect the reliability of the other test results. Professor Brody said that some of the test results obtained by Professor Young were unreliable because of malingering. 28. In our judgment it does constitute an unsatisfactory position for an expert witness to accept instructions to provide an opinion to the court upon the correctness of another expert's clinical assessment where he himself is unable to undertake such an assessment. It may be, as Professor Brody suggested, that repeating an assessment already conducted could in some circumstances be redundant, but that would only arise where there was agreement between the experts as to diagnosis and severity. Where, as in the present case, there is a fundamental disagreement on those matters, the expression of a contrary opinion necessarily involves the making of evaluative clinical judgments. It follows, in our judgment, that Professor Brody was in substance engaging in an assessment of the applicant, notwithstanding his stated limitations. 29. We do not consider that it is necessary to resolve every aspect of the disputes between the experts for the purposes of determining the application before the court. The issue raised by the application is whether, and if so the extent to which, the applicant's unrecognised ADHD and any cognitive impairment affected his ability to present his defence and participate in the trial so as to ensure a fair process that did not render the convictions unsafe. That is a question of fact for the court, having regard to all the available evidence. 30. Against that background, and for the purposes of determining the application, we consider it appropriate to proceed on a basis broadly favourable to the applicant, namely by accepting that he has ADHD with significant symptoms and, in broad terms, that his intellectual functioning is below average in certain respects. We consider, however, that there are features of Professor Young's reports which suggest that the picture revealed by her WAIS-IV testing may not be wholly persuasive as to the level of severity of any cognitive impairment. In that context she said, among other things: "The information subtest measures an individual's general knowledge. The similarities subtest measures verbal abstract reasoning, logical thinking and verbal concept formation. Vocabulary measures word knowledge, expressive language skills and verbal concept formation. Surprisingly, [the applicant] was unable to define some commonly used words such as 'tranquil' and 'reluctant'. He also failed to define 'acute', 'compassion', 'tangible' and 'evolve'. Taken together, the scores suggest that [the applicant] may present as somewhat more intellectually able than is actually the case." 31. Yet as Mr Andrew Thomas KC, on behalf of the respondent, pointed out, there are passages in the transcripts of the applicant's evidence at trial where he used the words "evolve" and "reluctantly" appropriately in context, clearly understanding their meaning. We did not find Professor Young's explanation of that material wholly convincing. 32. It is right also in this context to refer to some passages of the two joint reports. The first of these included a very long series of questions from which we shall only extract one: test "There are multiple signs of performance that indicate that [the applicant] was appearing more impaired on testing than he actually is." invalid psychological Professor Young's answer to that observation was: "Agree in part. I disagree that there are 'multiple signs." She then set out the fact that the applicant had failed two PVTs, known as the Rey recognition and the IOP-M respectively. She referred also to the embedded validity indices within WAIS- IV, on which Professor Brody had relied, but made the point that these are not, in her opinion, considered reliable or suitable for routine clinical or neuropsychological interpretation. She then said this: "Failure of PVTs do not in themselves establish deliberate underperformance. Other factors such as fatigue, discomfort with the assessment process, anxiety, environmental distraction, interpersonal trust can also reduce engagement. Signs of invalid performance occurred only in Professor Brody's assessment, not mine, and his findings cannot be extrapolated to my results obtained much earlier." In that passage, Professor Young was accepting that the results of the tests to which she referred could be rendered unreliable by extraneous factors. Although she was inclined to exclude malingering as being one of them, she did list a number of the others which, she said, were capable of adversely affecting the reliability of results. 33. In the second joint report the experts were asked to consider this question: "Does [the applicant] have impaired intellectual functioning?" Professor Young's answer was: "[The applicant's] general intellectual abilities were assessed by the WAIS-IV. His full scale IQ score was 79, eighth percentile, falling within the borderline range. He obtained scores at or below the fifth percentile on measures of processing speed and non-verbal functioning, including coding, symbol search and matrix reasoning, indicating a clinically significant weakness or impairment in these specific cognitive domains." That is, as one would expect, a careful and precise response to the question which was asked. Professor Young did not say that the IQ score amounted to an impairment of intellectual functioning. She confined her answer in that regard to the specific cognitive domains which she identified in it. 34. We also consider that some weight should be attached to what Professor Young said in one of her addendum reports prepared in response to Professor Brody's suggestion that the applicant might suffer from antisocial personality disorder. Professor Brody had relied upon material concerning the applicant's behaviour in custody after conviction, contained in a report from the prison, as some support for that suggested diagnosis. Professor Young's response was: "There is no evidence that this behaviour in prison reflects a stable personality trait present across time and contexts, as required by DSM-5 criteria. On the contrary, prior to imprisonment, [the applicant] was characterised as a workaholic, reportedly maintaining a high level of occupational responsibility and performance. It is therefore misleading to cite this isolated custodial behaviour as evidence of a pervasive pattern of irresponsibility." 35. We cite these extracts from the evidence provided by Professor Young in order to strike a note of caution about her conclusions as to the severity of the impact of either the ADHD condition or the cognitive impairment. Having done so, we have come to the conclusion that to the extent that there is disagreement between the experts, we prefer the evidence of Professor Young in so far as it expresses a view about the applicant's disabilities. 36. Mr Thomas, in his closing submissions to us, accepted that Professor Young's expertise is substantially stronger in relation to the issues in this case than that of Professor Brody. We consider that he was right to do so. ADHD is a principal part of Professor Young's work and she sees patients in a clinical setting. It is also true that she spent a great deal more time with the applicant than Professor Brody was able to do. 37. Professor Brody's principal point was to invite the court to consider the evidence relating to the applicant's performance as the owner and operator of multiple successful businesses, together with the evidence contained in transcripts of his testimony in these and other proceedings. He also referred to the very long interviews under caution which were conducted with the applicant by the Trading Standards investigators and which were put in evidence before the jury. He says that if all of that material is taken into account, it casts a very revealing light upon the level of disability from which the applicant actually suffers. 38. That passage of Dr Brody's report was criticised in cross-examination before us on the basis that it amounted to advising the court how the appeal should be decided. On that basis it would stray far beyond the proper remit of an expert witness. The passage in question was in the following terms: "Although it is very understandable that experts have been instructed for the current appeal by [the applicant], I have highlighted in my reports some of the very extensive non-expert evidence that clearly indicates that not only was [the applicant] not disadvantaged at trial due to cognitive impairments and related psychological problems, he actually demonstrated above average cognitive function in his very extensive non-expert evidence (including his building multiple highly successful businesses from nothing, managing multiple businesses successfully and manifesting apparent above average understanding and verbal responses at trial and during his PACE interviews). I respectfully suggest to the court that this very extensive non-expert evidence would in itself likely be sufficient for the court's decision regarding the present appeal." 39. Whether that passage constituted an appropriate expression of expert opinion or not, in our judgment it does in fact serve to illustrate the correct approach to assessing the practical impact of ADHD and any cognitive impairment upon the applicant's ability to participate in his trial, namely by considering the clinical evidence, alongside the substantial body of evidence demonstrating how he functioned in real world settings over a prolonged period. That is the exercise which we have undertaken. 40. If Professor Young's evidence were to be understood as inviting the court to place determinative weight upon clinical assessment and psychometric testing alone, without regard to the extensive evidence of the applicant's performance in circumstances where his intellectual abilities were continuously engaged, that is not an approach which we would accept. In fairness to Professor Young, we do not consider that she advanced her evidence in such absolute terms. Evidence of Trial Counsel 41. Trial counsel, Mr Jonathan Laidlaw KC, told us, and we accept, that had the diagnoses been known before trial, they would have influenced preparation, decisions about whether the applicant should give evidence, and potential applications for procedural adjustments, special measures and appropriate judicial directions to the jury. 42. Whilst we accept entirely that counsel's perspective is sincerely expressed and informed by his extensive experience of the case, it seems to us that we should approach such evidence with an appropriate degree of caution. There is an obvious risk inherent in retrospective analysis by trial counsel, particularly where new information has subsequently emerged. Mr Laidlaw accepted that he and others in the preparation of the case were well aware at the time that the applicant could struggle to remain focused on particular topics. They were nevertheless able to prepare a detailed proof of evidence, as is conventional. This in large measure served as a tool for counsel, rather than for the applicant himself. It constituted a guide through the evidence which the applicant could give and included appropriate references to documentary and other material at points to which they were relevant. 43. Although Mr Laidlaw now questions whether that was the best approach, it is far from clear to us that the preparation for trial could realistically have been conducted in any materially different way. 44. Mr Laidlaw's oral evidence was that had he been aware of Professor Young's opinion at the time of the trial, he would have advised the applicant against giving evidence. That was because he had always anticipated that the applicant might prove to be a poor witness. He was nevertheless called as a witness in his own defence because Mr Laidlaw and the rest of the legal team considered that his evidence was essential if there were to be any realistic prospect of defeating the Crown's case. 45. In his written statement Mr Laidlaw said this at paragraph 42: "But more importantly in terms of the advice I offered to the applicant, had I known of how he might have performed in the witness box, I would have given very serious consideration to advising him that he should not give evidence, but instead to call and rely upon the evidence of Professor Young as to the applicant's psychological impairment, to contextualise his conduct over the indicted period and to rebut any adverse inference under section 35 of the CJPOA 1994. There is little doubt in my mind that the applicant's evidence and the poor impression he made from the witness box was very likely a significant factor in the jury's verdicts." 46. However, this was, and remained, a case in which the central issue concerned the applicant's knowledge and state of mind in relation to documentary material and business practices for which he was directly responsible. In practical terms, it is highly doubtful that he could have defended himself effectively without giving evidence, and there is no basis upon which to conclude that he would necessarily have accepted advice not to do so. 47. As we have already indicated, in his examination in chief the applicant broadly "came up to proof" and was able to advance explanations directed to the allegations on the indictment. Mr Laidlaw described his performance in the witness box as "very poor" and produced extracts from the transcript of that evidence to illustrate his assessment. Those passages are in the main drawn from cross-examination. The counterfactual scenario in which the applicant did not give evidence in his own defence is therefore one in which the jury would have come to determine the case without knowing any explanation from the applicant, except that set out in his interviews under caution, as to how these multiple frauds had been committed to his very substantial financial advantage. The only evidence that they would have heard about the applicant in his defence would have been character evidence, some peripheral factual evidence, and the evidence of Professor Young. Professor Young did not consider that the applicant was unable or unfit to give evidence. She suggested that he might suffer from some disadvantages in doing so, which could be mitigated by taking some measures. 48. Accordingly, in that situation the jury would have had a direction from the judge that they could draw an adverse inference from the applicant's decision not to give evidence in his own defence, and in the circumstances of this case that would have been, in our judgment, a compelling inference. 49. The passage from Mr Laidlaw's witness statement that we have set out is also revealing when considering the functional impact of the diagnosed conditions on the applicant's abilities, given the very extensive opportunities afforded to defence lawyers in circumstances such as these to observe a defendant over a prolonged period and in a wide range of contexts. He said this: "At no point through to the events post-conviction when in April 2024 the applicant told me of his son's diagnosis and, having recognised in himself those features identified in that report he went on to take part in an ADHD screening test offered to him in prison, did I have any awareness (or indeed any suspicion) of the existence of any condition which might have affected the applicant's intellectual functioning or his ability to participate properly in a heavy, lengthy criminal trial. I should add that as far as I am aware neither did anybody else, at any point through the long period of my involvement with the applicant's case, express any such concern. I include within that number my solicitor Mr Rainford and the various paralegals or trainees from [the firm] who accompanied me to conferences; any member of the civil team who had acted for the applicant before I became involved with his case; the co-defendants or any member of BES's staff or my junior Mr Bunyan. Nobody made any reference to any suspicion that that the applicant may have suffered from ADHD and/or cognitive impairment." 50. In any event, although consideration of how the trial might have proceeded differently if the diagnoses had been known before it started are plainly relevant, the question for this court is not whether a different approach might, with the benefit of hindsight, have been taken to the conduct of the trial, whether by the adoption of special measures or alternative forensic strategies on the part of counsel, rather the material issue is whether, in the light of the subsequent diagnoses, the applicant was afforded a fair trial such that the convictions can properly be regarded as safe. Discussion 51. It is now well recognised, as Professor Young explained in her oral evidence to us, that defendants who present with neurodevelopmental conditions, including ADHD and other forms of neurodiversity, may face particular challenges in participating effectively in criminal proceedings. The courts have over recent years placed increasing emphasis on the need to identify such vulnerabilities at an early stage, and, where appropriate, to adapt the trial process so as to sure effective participation and a fair trial. That is an approach which is reflected in guidance such as the Equal Treatment Bench Book and in the developing jurisprudence concerning vulnerable defendants. Such measures may include adjustments to the manner in which evidence is presented, the pacing of proceedings, the provision of breaks, the use of intermediaries in appropriate cases, and the giving of tailored judicial directions. However, the existence of neurodiversity or cognitive difficulty does not of itself render a defendant unable to participate effectively. Nor does it follow that the absence of particular adaptations will necessarily result in unfairness. 52. The question in every case remains a fact specific one, namely whether, viewed in the round the defendant was able to understand the proceedings, give instructions, and present his case such that the trial can properly be regarded as fair. 53. The question for this court is not whether the applicant now has a diagnosis that might have been relevant at trial, but whether the convictions are unsafe. 54. Had the applicant's diagnosis been known, it is possible that additional consideration would have been given to adjustments or explanatory evidence. We accept that knowledge of the diagnosis might have enabled the jury to consider aspects of the applicant's behaviour within that framework and might conceivably have influenced their perception of him. However, traits of ADHD and borderline intellectual functioning cannot be considered in isolation. The court must consider the functional impact upon the trial in the context of all the evidence. Even proceeding on the basis most favourable to the applicant, when that wider picture is considered, we are not persuaded that he was unable to participate effectively, or that any adaptations would realistically have altered the course of the trial. There is no suggestion that the applicant lacked capacity to stand trial or was unfit to plead. He was represented by experienced lawyers, none of whom at the time considered that he could not give instructions or evidence. On the contrary, the evidence demonstrates that he participated actively in the preparation and conduct of his defence over a prolonged period, both before and during the trial. The transcripts show that he was capable of giving detailed and articulate evidence explaining his position, challenging the prosecution case, and advancing his defence. The fact that he sometimes provided expansive or argumentative answers does not, in our judgment, demonstrate any inability to participate effectively. Rather, it is consistent with the manner in which many defendants who strongly contest the allegations against them present their evidence. 55. While the judge had to intervene to encourage the applicant to answer questions directly, the transcripts show that he was able to engage with complex material and maintain his account. The judge's interventions were not hostile and were designed to ensure that the jury actually had the applicant's answers to the questions he was being asked. 56. We should add that, having reviewed the transcripts in detail, it is fair to observe that neither the examination in chief, nor the cross-examination of the applicant represents a model of ideal advocacy. There are frequent examples of rolled-up or multi-part questions, generalised commentary, and exchanges which tended to obscure, rather than clarify, the issues to which the applicant was being asked to respond. It may be that this approach reflected the pressures created by the length and complexity of the trial, a desire to progress the evidence expeditiously, or frustration arising from the applicant's combative manner when giving answers. Whatever the explanation, it undoubtedly made the task of the trial judge more difficult as he sought to maintain focus and fairness in the proceedings. 57. That said, although the judge's interventions were at times firm, we are satisfied that they were directed towards holding the ring and ensuring procedural clarity. We see no basis for concluding that the manner in which the applicant's evidence was taken resulted in any unfairness to him. 58. The reality is that the prosecution case was based upon extensive documentary evidence, together with recordings of the telesales conversations. The jury's conclusions depended upon that material and the applicant's explanations, rather than solely upon their impression of his demeanour. 59. It is also worth noting that count 4 involved an allegation of particular dishonest conduct which would not be affected by the new evidence because it did not involve any lack of knowledge of any detailed material. If the jury were to convict of that, as they did, this would necessarily and appropriately affect their assessment of the rest of the applicant's evidence. 60. In assessing the likely functional impact of the applicant's neurodevelopmental condition, it is necessary to consider the wider evidence of his abilities, as demonstrated in his life and career. He was by any measure a highly capable and successful businessman. Over a number of years he founded, developed and ran a substantial group of companies, at their height comprising numerous corporate entities employing many hundreds of staff. He was also involved with professional football clubs and related commercial ventures. Although he left school with limited formal qualifications, he obtained employment in a customer-facing role with the Post Office, and thereafter worked within the utilities sector as a salesman – a role in which he appears to have been particularly effective and which would presumably have required him to communicate persuasively and confidently with customers about products, pricing and contractual arrangements. 61. Whilst it is clear that as his business expanded he benefited from administrative and managerial support, it must equally be the case that he did not begin his career with such support, and was nevertheless able to establish and grow complex commercial enterprises. 62. None of these matters negates the presence of ADHD or borderline intellectual functioning, but they constitute significant, real world evidence of the applicant's capacity to cope with complex information, make decisions, manage commercial relationships and operate effectively within demanding environments, and they form an important part of the overall picture when considering the extent to which his diagnosed difficulties were likely to have affected his participation in the criminal proceedings. Conclusion 63. Having considered the expert reports, the joint statements, the submissions of counsel and the trial materials, we are not persuaded that the proposed fresh evidence, whether taken individually or cumulatively, affords any ground for allowing the appeal, in that we have concluded that he convictions are safe, even having regard to it. We therefore decline to receive it. 64. That being so, there is no arguable basis on which this appeal could depend. Accordingly, the applications for leave to appeal and the extension of time must be, and are, refused. 65. In those circumstances there is no question of there being any re-trial and there is, therefore, no need for any reporting restriction. The order under the Contempt of Court Act 1981 that we imposed yesterday therefore lapses and these proceedings may be reported in their entirety. 65. MR THOMAS: My Lord, there is an application for costs relating to the appeals. The prosecuting authority in this case is Cheshire West and Cheshire Council, who have conduct of proceedings on behalf of regional Trading Standards in the North West. So it is at public expense. The application is for an order that the applicant pay the respondent's costs of and associated with the appeals in a sum to be determined at a further hearing, if not agreed. 66. LORD JUSTICE EDIS: Yes, I see. Thank you. Mr Darbishire? 67. MR DARBISHIRE: My Lord, I was not – I am not criticising Mr Thomas – I was not aware of the application. I wonder whether one way forward might be for the court to ask Mr Thomas to provide within a suitable period of, say, 14 days or so, the application and the figure? 68. LORD JUSTICE EDIS: Yes. 69. MR DARBISHIRE: We can respond and the court can consider the application on the papers. 70. LORD JUSTICE EDIS: Yes. 71. MR THOMAS: We will do that – in the lower court the costs were agreed – within 14 days. 72. LORD JUSTICE EDIS: So you will provide your application, with a bill of costs, so that if they do agree it, they have the opportunity to do so – 14 days? 73. MR THOMAS: Yes, please. 74. LORD JUSTICE EDIS: Mr Darbishire? 75. MR DARBISHIRE: May we have 14 days to respond? 76. LORD JUSTICE EDIS: Yes. So, 28 days hence we will have both sides' materials and we will decide the issue on the papers. If we conclude that we need another hearing, we will let you know, but we will strive to avoid that. 77. MR DARBISHIRE Thank you. 78. LORD JUSTICE EDIS: Thank you both – and all – very much for your help. Thank you. __________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________ 24