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Jack, DPP Reference 5 of 2019
Factual and Procedural Background
The offender was sentenced at Belfast Crown Court on 25 October 2019 for eight counts of fraud by abuse of position under section 4 of the Fraud Act 2006, committed between 2 and 8 June 2012. The total amount defrauded was £78,500. The sentences imposed were concurrent community service orders totaling 240 hours, alongside a compensation order initially in favor of an individual anonymised as BS, later amended to Santander. The Director of Public Prosecutions (DPP) sought leave to refer the sentences as unduly lenient, which was granted on 16 December 2019, with the application proceeding on that date. The court delivered its outcome on 20 December 2019.
The offender commenced employment with Santander on 9 January 2012 as a customer service adviser with online access to customer bank accounts. The offences involved the offender fraudulently accessing accounts without customer consent, using the login credentials of BS, a colleague, and transferring funds to mule accounts. BS was not at work during some fraudulent transactions, and Santander’s records confirmed the offender’s presence and use of BS’s credentials. The offender resigned abruptly on 8 June 2012, the last day offences were committed, citing a job offer from The University which was not genuine.
Investigations began immediately after the offences were discovered on 9 June 2012. BS was initially suspected and treated poorly by Santander, leading to her leaving employment. Police interviews with the offender commenced on 24 October 2014, with further interviews on 31 October 2014 and 25 May 2017. Criminal proceedings began in May 2018, with the offender pleading guilty to all counts on 9 May 2019. The offender had one unrelated prior conviction for a traffic offence and was assessed as presenting a medium likelihood of reoffending.
Legal Issues Presented
- Whether the sentences imposed for the fraud offences were unduly lenient.
- Whether there was a breach of the reasonable time requirement under Article 6(1) of the European Convention on Human Rights (ECHR) due to delay between the criminal charge and sentencing.
- What is the appropriate remedy for any breach of the reasonable time requirement, including whether a reduction in sentence was justified.
- Whether community service orders were an appropriate sentence given the nature and seriousness of the offences.
Arguments of the Parties
Director of Public Prosecutions' Arguments
- The sentences of community service orders were unduly lenient given the seriousness of the offences and the financial harm caused.
- The offender’s culpability was significant, playing a central role in organised fraud involving multiple transactions and victims.
- The appropriate sentence should have been immediate custody reflecting the loss amount and aggravating factors.
- The delay between charge and sentencing breached the reasonable time requirement, but no reduction in sentence was warranted as the breach was not significant enough.
Offender's Arguments
- The offender contended there was a breach of the reasonable time requirement under Article 6 ECHR due to the delay between the charge and sentencing.
- The offender argued that the sentencing judge was entitled to impose community service orders instead of imprisonment as a just and appropriate remedy for that breach.
- The offender denied involvement in the fraudulent activity during police interviews and asserted innocence before pleading guilty.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Barrick [1985] Cr App R (S) 142 | Sentencing guidelines for theft and fraud involving breach of trust. | Used as a foundational guideline for sentencing range and aggravating/mitigating factors. |
| R v Gault [1989] NI 232 | Sentencing principles for fraud by abuse of position. | Applied alongside Barrick to determine appropriate sentence bands. |
| R v Clarke [1998] 2 Cr App R (S) 137 | Sentencing guidelines adapted for inflation and harm assessment. | Helped establish sentencing ranges adjusted for present day values. |
| R v McKeown, R v Han Lin (DDP's Reference Nos 2 and 3 of 2013) [2013] NICA 28 | Applicability of English sentencing guidelines in Northern Ireland. | Confirmed that definitive English guidelines do not apply but offer useful guidance. |
| R v McCaughey and Smyth [2014] NICA 61 | Sentencing guideline applicability and harm assessment. | Supported the court’s approach to sentencing fraud offences. |
| Dyer v Watson [2004] 1 AC 379 | Interpretation of Article 6 ECHR rights including reasonable time requirement. | Guided the court’s analysis of delay and breach of reasonable time requirement. |
| O’Neill v HM Advocate (No 2) [2013] UKSC 36 | Definition of ‘criminal charge’ for purposes of Article 6 ECHR timing. | Used to determine when the offender was officially charged for reasonable time calculation. |
| Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72 | Clarification of official notification of prosecution under Article 6 ECHR. | Applied to assess when the offender was officially notified of likely prosecution. |
| R v Dunlop [2019] NICA 72 | Principles for assessing whether delay breaches reasonable time requirement. | Outlined factors such as case complexity, defendant conduct, and administrative handling. |
| Director of Public Prosecution's Reference (Number 1 of 2018) Vincent Lewis [2019] NICA 26 | Impact of delay on offender and appropriate remedies. | Informed the court’s approach to balancing delay impact against public interest in punishment. |
| Attorney General's reference (No 4 of 1989) [1990] 1 WLR 41 | Court’s discretion in quashing or upholding unduly lenient sentences. | Supported the court’s discretion to not quash the sentence despite finding it unduly lenient. |
| DPP's Reference No 1 of 2016 (David Lee Stewart) [2017] NICA 1 | Approach to discounting sentence for guilty plea and mitigating factors. | Guided the court in applying plea discount after considering delay mitigation. |
| R v Loughlin (Michael) (DPP Reference No 5 2018) [2019] NICA 10 | Principles on reduction of sentence for time already served and double jeopardy. | Informed sentencing adjustments considering time served on community service. |
| R v Corr - Director of Public Prosecution's Reference (Number 4 of 2018) [2019] NICA 64 | Discretion in sentencing and interference with unduly lenient sentences. | Reinforced the court’s discretion in deciding whether to increase sentence. |
Court's Reasoning and Analysis
The court carefully analysed the offender’s role, the nature of the offences, and the applicable sentencing guidelines. The offences involved deliberate, organised fraud by abuse of position, causing financial harm of £78,500 and emotional harm to victims, including an innocent employee, BS. The court applied established sentencing principles from Barrick, Gault, and Clarke, concluding that the appropriate starting point for a custodial sentence was at least two years, increased to two years and six months considering aggravating factors, especially the impact on BS. A plea discount of approximately 20% was appropriate.
The court examined the delay between the effective criminal charge and sentencing under Article 6(1) ECHR. It found that the offender became subject to a criminal charge on 31 October 2014, when police interviews made clear an official notification of likely prosecution. The delay until sentencing on 25 October 2019 was excessive, constituting a breach of the reasonable time requirement for 2 years and 8 months.
Despite recognising a modest adverse impact on the offender due to delay, the court emphasized the public interest in realistic punishment. The appropriate remedy for the breach was a public acknowledgment rather than a reduction from imprisonment to community service. The sentencing judge’s imposition of community service orders was considered unduly lenient and a significant departure from established guidelines.
However, the court exercised discretion not to quash the existing sentences due to the offender’s positive engagement with the community service, the benefits of supervision on his risk-taking behaviour, and the need to balance double jeopardy and time already served. The court noted that community service orders involve loss of liberty and should not be viewed as a soft option.
Holding and Implications
The court held that the sentences imposed were UNDULY LENIENT. The appropriate sentence should have been a custodial term of approximately two years, with a public acknowledgment of the breach of the reasonable time requirement under Article 6 ECHR. Despite this, the court exercised its discretion not to quash the existing community service sentences, considering the offender’s compliance and the mitigating factors related to delay and double jeopardy.
The direct effect is that the offender’s current sentences remain in place, but the judgment clarifies sentencing expectations for fraud by abuse of position offences and the approach to breaches of the reasonable time requirement in criminal proceedings. No new legal precedent was established beyond reinforcing existing guidelines and principles.
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