Asplin convicted after Court of Appeal cleared way for private prosecution

Asplin: Sentenced to seven years in prison

The former chief executive of DAS UK was convicted of a 14-year-long fraud in a private prosecution brought by the company after it overturned a court decision to stay the case, it has emerged.

In the largest corporate private prosecution to date, Paul Asplin was sentenced to seven years’ imprisonment after being convicted in July of conspiracy to defraud and furnishing false information.

Also convicted of conspiracy to defraud were solicitor David Kearns, formerly DAS assistant general manager, and Sally Jones, formerly DAS marketing manager.

Kearns was jailed for four years and three months, and Jones for three years and nine months.

They all received director disqualifications as well, Asplin for 12 years and the other two for eight years.

The court found that Asplin and Kearns established a medico-legal reporting agency, Medreport, in which they both held secret interests. They fed profitable casework to Medreport and committed DAS contractually to it.

Through these arrangements – which were an abuse of their positions – they drew substantial personal financial benefit for themselves and their wives, which they deliberately concealed from DAS.

An initial analysis by accountants EY suggested that DAS may have lost £6.9m in its dealings with Medreport between 2000 and 2014.

The defendants were, however, cleared of undertaking a similar fraud using the law firm CW Law. Three other defendants were cleared of all charges.

Confiscation proceedings are set to be heard in December.

Describing Asplin’s defence, the trial judge, His Honour Judge Beddoe, said: “I am quite sure you are a greedy, arrogant and manipulative man who for years exploited the trust the German shareholders had in you.

“As a matter of honour and decency they felt they had no choice but to support you… Your defence was a mean-spirited attempt to denigrate the honest and decent people who came here to tell the truth. It did not succeed.”

In a statement, DAS, which instructed specialist private prosecution law firm Edmonds Marshall McMahon (EMM) to run the case, said it was pleased with the outcome.

“The DAS brand itself stands ‘First for Justice’. Having found evidence indicative of wrongdoing, it was important that the company pursued the matter to its conclusion.”

Both the police and Serious Fraud Office declined to investigate, citing insufficient evidence, before DAS pursued the private prosecution.

Since the convictions, a Court of Appeal ruling from July 2017 has been published, in which it overturned a March 2017 decision by Her Honour Judge Korner QC to stay the prosecution.

She held that DAS “has carried over its motives for bringing the prosecution into its investigation and preparation for the trial. It set out to look for evidence which implicated the defendants and wilfully ignored or tried to suppress evidence which did not assist in that goal”.

She also criticised the conduct of EMM, which she found had “irredeemably tainted the whole process”.

HHJ Korner concluded: “In my judgment what has happened cannot be remedied through the trial process.”

In D Ltd v A & Ors [2017] EWCA Crim 1172, Lord Justice Davis said this decision “simply cannot stand” because there was an error of law and principle in the judge’s approach.

HHJ Korner did not identity to evidence to support her finding that DAS ignored or tried to suppress evidence, and indeed the defendants had made no such submission.

The appeal court’s “own clear conclusion” was that the documents put forward to it by the defendants to support the findings “do not begin to justify the conclusion expressed by the judge”.

The judge’s criticism of EMM was also “unjustified on the available material. Certainly, the judge identified no specific examples and made no specific finding in support of so strong a conclusion”.

This error “infected” the whole ruling and ultimate decision, Davis LJ said.

“Moreover, whilst the judge refers [to DAS’s] motives for bringing the prosecution, she in fact – and notwithstanding that she had been addressed at very great length on that issue by the defendants – made no findings at all as to what those motives were.”

Again, Davis LJ said there was the court could see “no proper basis for a finding of improper motives”.

He continued: “The predominant motive seems clear: to seek just retribution from defendants who the applicant is convinced have engaged in a sustained criminal fraud on the applicant. There is nothing improper in that.

“On the contrary, it is a facet of the pursuit of justice in punishing alleged criminality: which is itself the rationale for the statutory right to bring a private prosecution.”

The judge said bad faith or dishonesty on the part of the prosecutor was not alleged and such criticism as could be made against DAS and EMM “does not begin to justify a stay, when set against the public interest in upholding a person’s statutory right to initiate and pursue a private prosecution and the public interest in alleged serious criminality in the form of a sustained and major fraud”.

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