In the case of R v Sharma [2025] EWCA Crim 1122 (18 July 2025) the Court of Appeal upheld the appellant’s convictions for fraud by misrepresentation, despite the particularised representations in the indictment referring to future conduct and not clearly particularising what the prosecutor was alleging. The Court of Appeal found that the issue had been cured by the trial judge allowing the prosecution to amend the indictment to set out the particulars of the false representations. In determining this, the Court of Appeal considered the law regarding the drafting and purpose of an indictment and provided helpful guidance on how fraud charges should be particularised.
Background to the Case
On 31 January 2024, Mr Vikas Sharma was convicted of five counts of fraud by misrepresentation contrary to section 1 of the Fraud Act 2006, one count of possessing criminal property contrary to section 327 of the Proceeds of Crime Act 2002 (“POCA”) and one count of transferring criminal property contrary to section 329 POCA. He was acquitted of a further three counts of fraud. Mr Sharma was sentenced to four years’ imprisonment concurrent on each count.
The offending by Mr Sharma related to his work as a real estate agent. In 2014 and 2015, he encouraged individuals to invest in properties located in Germany and Portugal and received substantial funds for the purchase of these properties. No properties were ultimately purchased and most investors did not get back their funds. This led to Mr Sharma being reported to Action Fraud in 2018 and subsequently prosecuted.
Drafting issues with the indictment
One of the issues in the case was the way in which the indictment had been drafted for the fraud by misrepresentation charges. For each count relating to the false representations made to the investors, the same format or wording was used:
VIKAS SHARMA between the 1st day of June 2014 and the 31st day of March 2015 committed fraud in that, dishonestly and intending to thereby to make a gain for himself or another, or to cause a loss to another, or to expose another to risk of loss, he made a false representation to Jasbinder Dhanda which was and which he knew was or might be untrue or misleading, namely, that he would arrange the purchase of foreign properties on their behalf…
Responding to an application by the Defence that there was no case to answer, the prosecution submitted that the language of the indictment had to be read as including all misrepresentations made in respect of the properties, including misrepresentations as to the deposits, the security, and using the real estate agency’s name, and that of an investment company, for marketing purposes. In the alternative, the prosecution sought leave to amend the indictment to spell out these points. The trial judge granted the prosecution’s application and allowed it to amend the indictment to “make explicit what was implicit”.
Grounds of Appeal
The appellant appealed his convictions on two grounds:
- The learned judge should have acceded to the submission of no case in to answer in relation to each count of fraud. On each count there was no evidence that the representation alleged on the indictment was false.
- Alternatively, the judge should have discharged the jury after determining that there is a case to answer given the serious prejudice to the defendant caused by his defence having been conducted on the basis of what the learned judge had ruled was a fundamental misunderstanding of the particulars of the fraud counts alleged.
Defence counsel also sought leave to add a third ground to the appeal which was that neither the trial indictment, nor the amended version, pleaded a representation within the meaning of section 2 of the Fraud Act 2006. The Court of Appeal granted leave and also considered this ground.
Court of Appeal’s analysis
The Court of Appeal found that the wording of the trial indictment was significantly flawed for the following reasons:[1]
The particulars of an indictment must contain “reasonable information as to the nature of the charge” (Indictments Act 1915, s.3). Paragraph 10.2 of the Criminal Procedure Rules goes, if anything, further. It requires the particulars to “make clear what the prosecutor alleges against the defendant”.
In considering the offence of fraud by misrepresentation in particular, the Court of Appeal stated:[2]
It follows that [the] particulars of a charge of fraud by misrepresentation, contrary to section 2 of the Fraud Act 2006 must clearly identify the representation that is alleged to have been false and to have been made dishonestly with intent to gain or to cause loss or risk of loss. Section 2(3) of the Act defines “representation” to mean “any representation as to fact or law, including a representation as to the state of mind of the person making the representation”.
In this case, the trial indictment stated the prosecution case in an inherently ambiguous way. There are two possible analyses of a representation that a person “will” do something. The first and most obvious is to treat it as a representation about what will happen in the future, that is to say either a promise or prediction. Neither of these amounts to a representation of fact or law. A representation of that kind falls outside the scope of the Fraud Act.
Furthermore, the Court Appeal commented that, whilst it is possible for an indictment to contain implied allegations as to future conduct, this should be avoided:[3]
The language of the indictment in this case is capable of implying an allegation that the appellant falsely represented that he intended to obtain properties for the investors but such an implication is not obvious or inevitable. The authorities caution against over-readiness to treat a promise as to the future as an assurance about the present, particularly where this may have criminal consequences.
Findings and reasoning
Ultimately, the Court of Appeal found that the pleaded allegations of misrepresentation did not refer to the “manner” in which the scheme had been marketed by Mr Sharma. Therefore, the three specific allegations as to the deposits, the security and using the real estate agency and investment companies’ names for marketing purposes were not implicit in the wording of the indictment.
However, the Court of Appeal found that the prosecution’s amendments to the indictment adequately remedied the issue and that the appellant was not unfairly prejudiced by the case proceeding as it did.
Conclusion
This case is a timely reminder of the importance of particularising the counts on an indictment in a way that clearly outlines what the allegations against the defendant are. For counts relating to fraud by misrepresentation, the use of the word “would” in the particulars could be interpreted as a reference to a promise or prediction of future conduct which wouldn’t be an adequate representation as required under the Fraud Act 2006. Plain language that is incapable of dual meaning should always be used.
Georgina Diamante – Edmonds Marshall McMahon
[1] R v Sharma [2025] EWCA Crim 1122 (18 July 2025) at para [26]
[2] Ibid at para [27] – [28]
[3] Ibid at para [29]
