England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 1 March 2012

1. MR JUSTICE LLOYD JONES: On 7th September 2010 at the Crown Court at Southwark before His Honour Judge Robbins, the applicants Mullen and Davison pleaded guilty on rearraignment to a conspiracy to defraud, which was count 1 on the indictment. On the same day Davison also pleaded guilty on re-arraignment to conspiracy to defraud on counts 2, 3 and 6. On 15th September 2010 before the same constitution the applicant Bingham pleaded guilty to conspiracy to defraud (count 1). On a later occasion, on 17th March 2011, Bingham pleaded guilty to a breach of bail having failed to attend for a scheduled hearing on 7th February 2011. On 2nd February 2011 before the same constitution the applicants Mullen and Davison were sentenced and on 3rd May 2011 Bingham was sentenced.
2. The sentences imposed were as follows. Mullen was sentenced on count 1 (conspiracy to defraud) to two-and-a-half years' imprisonment. Davison was sentenced on counts 1 and 2 (conspiracy to defraud) to five years' imprisonment concurrent on each count. On count 3 (conspiracy to defraud) he was sentenced to six years' imprisonment, that sentence to be concurrent. On count 6 (conspiracy to defraud) he was sentenced to one year's imprisonment, that sentence to be consecutive to the other sentences. He was also made subject to a financial reporting order under section 76 of the Serious Organised Crime and Police Act 2005 for a period of 15 years. Count 7 (conspiracy to defraud) was to remain on the file.
3. Bingham was sentenced on a later occasion as follows. On count 1 (conspiracy to defraud) the sentence was one of five years' imprisonment. He was also sentenced to six weeks' imprisonment consecutive, that sentence in respect of breach of bail. He was made subject to a financial reporting order under section 76 of the Serious Organised Crime and Police Act 2005 for a term of 15 years.
4. There were three co-accused. Christopher Fay pleaded guilty to entering into an arrangement contrary to section 328 of the Proceeds of Crime Act 2002 (count 4) and he was sentenced to 12 months' imprisonment. Derek Voysey was convicted of conspiracy to defraud (count 2) and was sentenced to 18 months' imprisonment and made subject to a financial reporting order for five years. Patrick Golding pleaded guilty to conspiracy to defraud (count 1) and he was sentenced to 20 months' imprisonment and was made the subject of a financial reporting order for seven years. His application for leave to appeal against sentence was refused by the single judge and was not renewed.
5. These three applicants now renew their applications for leave to appeal against sentence following a refusal of permission by the single judge.
6. This case concerns a number of what are known as boiler room frauds -- so called because they involve the bringing of intense pressure to bear on victims. It is said that the applicant Davison was the primary participant, the architect. The frauds were sophisticated, well-organised and well-planned. Pressure was brought to bear on victims, many of them retired individuals, to part with thousands of pounds for shares that were either worthless shares in companies that did exist or purported shares in companies which did not exist. Some of the victims had died by the time this case came to court. Others were due to give evidence in the trial and arrangements had been made for some of them to do so by video link because their health prevented them from coming to court. Some of the victims had been targeted more than once.
7. The fraudsters used glossy brochures, elaborate fake websites and convincing share certificates. On occasions dividends were paid to the victims and they were offered opportunities to buy more shares. Trained salesmen using false names and high pressure sales techniques persuaded their victims to part with their money. The salesmen usually contacted their victims by unsolicited telephone calls. The salesmen were persuasive. They claimed to work for genuine companies and they were very persistent. Statements had been obtained by the prosecution from 43 investors who had been defrauded. Victims were given details of where to send their money with a contract note or a share sale agreement. The accounts into which the money was paid were controlled by one or other of the applicants. Many of the victims received what appeared to be share certificates designed to create the impression that they had invested in something of value and that in turn assisted the fraudsters when they made follow-up calls seeking to persuade the victims to invest more money in worthless shares. Thereafter they heard no more from the salesman and they found it impossible to contact anyone in connection with their supposed share purchases. The victims subsequently discovered that they had not become owners of any shares at all or if they had that the shares were worthless.
8. Count 1 was brought against Davison, Bingham and Mullen and also Golding and Voysey. That fraud involved telling the victims that they would be buying shares in a company which was investing in London properties concerned with the 2012 Olympic games. The company whose shares were being sold was originally Almena Properties Limited. That company did exist but it did not carry on any business and the claims that it was investing in London properties concerned with the 2012 Olympic games were totally untrue. That fraud came to an abrupt end because the bank account which was being used in Gibraltar was frozen. It appears that it was at that point that Davison moved on to the fraud which was the subject of count 2. This fraud also involved telling the victims that they would be buying shares in a company which was investing in London properties concerned with the 2012 Olympic games. In this fraud the victims were told they would be buying shares in Liddle & Middleton Limited. In fact no such company existed.
9. Count 3 was brought against Davison and count 4 was brought against Fay in relation to another fraud which Davison had committed while on bail in respect of counts 1 and 2. This again involved telling victims that they would be buying shares in a company which was investing in London property concerned with the 2012 Olympic games. The company used in this fraud was Ventus Vox Limited. That company did not exist.
10. Finally, count 6, was brought against Davison alone. This fraud involved telling the victims that they would be buying shares in Tesco. None of them actually received any Tesco shares, nor was it intended that they ever would.
11. These three applicants entered bases of plea. In the case of Mullen his basis of plea was that he had joined the fraudulent scheme which was the subject of count 1 after it was up and running. He was no part of the controlling mind of the fraud and his role was limited to that of a salesman. Although he had joined the operation in Barcelona in the summer of 2005, he had not become a knowing guilty member of the dishonest scheme selling shares in Almena Properties Limited until 14th September 2006 and thereafter he participated in the scheme until April 2007. His basis of plea was that he had benefited from his guilty participation in the total sum of 18,280.
12. Davison's basis of plea was that the count 1 fraud, the Almena scheme, was already in existence when he had joined and he had not been the architect of this fraud. At first he did not suspect any fraudulent activity. However, within a relatively short period of time he realised that its activities were not legitimate. The Crown took the view that he took an active role in the Almena fraud, knowing that a fraud was occurring within a relatively short time of its inception and continued to do so throughout. The Crown was content that he be sentenced on that basis.
13. With regard to count 2, Liddle & Middleton Limited, Davison's basis of plea was that he had been responsible for implementing this fraud, albeit with the assistance of Honess (who had died before he could be brought to trial) and it was Honess who managed the Spanish end of the fraudulent enterprise. The Crown on the other hand maintained that this fraud was Davison's brain child. However, it did not invite a Newton hearing and was content that he be sentenced on his basis of plea.
14. With regard to counts 3 (Ventus Vox) and count 6 (Tesco) it was Davison's basis of plea that he provided web facilities to others who went on to perpetrate the frauds. The Crown did not agree that basis. It took the view that his role in these frauds was instrumental and his involvement was similar to that in counts 1 and 2. However on the basis that he had effectively handed over a ready made package for use in these frauds, this was still a significant role. When coupled with the sentencing exercise that would take place on counts 1 and 2, it was the view of the Crown that the differences between the Crown and the defence on the exact role of Davison in relation to these counts would not make any difference to the eventual sentence and subject to the view of the judge it was proposed there was no need for a Newton hearing.
15. Bingham's basis of plea stated that he had been retained by Davison to act on his behalf concerning his business interests, VAT taxation and property related matters. He had not known that by July 2006 Davison was selling non-existent shares in Almena properties and that Davison was writing letters using the applicant's name and representing him as company secretary without his authority. The applicant was aware that Davison was conducting some fraudulent activity on shareholders during the period September to November 2006 and the applicant had benefited in the sum of £1,566-odd. It was the basis of plea of Bingham that he had fallen out with Davison in mid-December 2006.
16. The Crown did not seek to dispute that on the available evidence Bingham had received £1,566 for dishonest services. However, the Crown's case was that he was involved in the fraud from August 2006, the beginning of the fraud, and that he was certainly aware of the nature and scale of the Almena fraud from his dealings with the investor correspondence and sums passing through the London listings bank account.
17. During the hearing of these applications this afternoon, Mr Mann, who did not appear below and who has represented Mr Bingham on this application, has accepted that the benefit to Mr Bingham is likely to be assessed in the region of about £20,000, but he emphasises in his submissions to us that the involvement of Mr Bingham in the conspiracy in count 1 ended in December of 2006.
18. Mullen was aged 43. He had been before the courts in Scotland on two previous occasions in 1988 for two offences for theft and again in 1992 for theft. The sentence had been deferred on the first occasion and a fine was imposed on the second. In the pre-sentence report he was assessed as presenting a low risk of re-conviction.
19. Davison was of previous good character. The pre-sentence report assessed him as presenting a medium risk of re-conviction.
20. Bingham was aged 72. He had been before the courts on two previous occasions. First, in June of 1990 when he was sentenced to nine months' imprisonment for possession of an offensive weapon, possession of a prohibited firearm, affray and administering poison, and in July 1990 he was convicted of 12 counts of dishonesty as a solicitor. He received a total sentence of six years' imprisonment in respect of those dishonesty offences and was disqualified from being a company director for a period of 15 years.
21. There was a report prepared by Dr Peter MacCallum, a consultant haematologist, dated 17th November 2010 which stated that he suffered from atrial fibrillation and required anticoagulant therapy to minimise his risk of stroke. The risk of his treatment included fatal bleeding and he required regular monitoring. He was at high risk of stroke, heart attack or major internal bleeding.
22. The judge in passing sentence observed that these were outrageous and elaborate scams, boiler room frauds preying on victims who had lost considerable sums of money. The victims had been often retired people who could ill afford to lose their savings and the judge found that the total sums involved amounted to some £434,500. The judge referred to a publication by the Financial Services Authority which described the background to offending of this sort. The judge considered that the message had to be sent out to those tempted to operate this type of fraud that they could expect to receive deterrent sentences. The judge took account of their guilty pleas, the matters raised in mitigation and the principle of totality.
23. In sentencing Davison it was noted that he had been on bail when he committed the count 3 matter. The judge also made observations about the bail status of Davison when he committed the count 6 matter to which we shall return. In the case of Bingham he had a relevant previous conviction for dishonesty as a solicitor involving substantial sums of money for which he had been imprisoned. The judge considered that to be an aggravating feature of this offence. The judge considered that Davison had been the architect of the boiler room fraud and that Bingham had been his right-hand man. The judge imposed a consecutive sentence, as we have indicated, on Bingham in respect of his failing to surrender to bail.
24. We propose to consider the applications of each of the applicants in turn.

Mullen

25. On behalf of Mullen it is submitted by Mr Hislop QC first that the judge gave insufficient weight to a number of factors; that insufficient weight was given to the basis of plea and the resulting limitations on the culpability of Mullen both as to his role and the duration of his involvement. He submits that the applicant had joined a fraudulent enterprise which was already up and running and that at the time of joining the enterprise he did not know of its dishonest nature. He submits that the applicant left that conspiracy entirely of his own volition. He draws attention to the sums involved in his particular criminality, it being said that he benefited to the tune of some £18,000. It is said that as a salesman the applicant had no organisational role whatsoever and Mr Hislop is able to point to the relatively good previous character of this applicant.
26. Secondly, it is submitted that the judge gave insufficient credit for the plea of guilty. We are told that the judge had given an indication on the first morning set for the trial, that was 6th September, that even at that stage he would give substantial credit for pleas. Mr Mullen did plead guilty on that same day, 6th September.
27. Mr Hislop also submits that there is a disparity between the culpability of Mullen and that of Davison and this is not properly reflected in the sentences imposed. Mr Hislop has drawn our attention to first instance decisions showing the sentences imposed by Crown Courts in cases in which even more substantial sums had been obtained by frauds of this kind, not, as he explains, to rely upon the sentence imposed but to demonstrate the scale of this type of fraud that comes before the courts. He and other counsel in the case have also drawn our attention to the Sentencing Guideline Council guidelines on statutory offences of fraud and to analogous lines of sentencing authorities in this court, in particular that including Barrick [1985] 7 Cr.App.R (S) 142 and Clark [1998] 2 Cr.App.R (S) 95.
28. We approach this case, as did the single judge, on the basis that this was wholesale, widespread fraud which targeted vulnerable people. In the case of each of the applicants the grounds of appeal and the advice on which they are based play down or ignore the background to the offending. These were mean and despicable offences which clearly called for substantial immediate custodial sentences. The only question in the case of Mullen is whether the sentence imposed can be said to be arguably manifestly excessive.
29. On his own basis of plea, Mullen was involved in this criminal conspiracy for some seven months. During that time he was actively involved as a salesman. He was a substantial part of the criminal conspiracy. It may well be that, as he now contends, the loss to victims specifically attributable to his sales activities under the assumed names of Kieran Johnson or John Gregg was some £18,000-odd. However the loss to investors as a result of the conspiracy during the period of his involvement was well over £100,000. So while his part has to be considered, it also has to be considered in the context of the overall fraud.
30. We consider that the analogy with statutory fraud and the Sentencing Guideline Council's guidelines in that regard needs to be approached with some caution. We note that perhaps the closest analogy, and it is one which has been drawn to our attention in particular by Mr Ramasamy this afternoon on behalf of Davison, is in the case of confidence fraud, the highest category of which contemplates confidence fraud involving deliberate targeting of a large number of vulnerable victims.
31. The reason we say that the analogy needs to be approached with a measure of caution is because the offences with which we are concerned involved the particularly cynical targeting of vulnerable individuals and the application of repeated pressure on them. Similarly, it seems to us that the analogy with the Barrick line of authority is not particularly helpful - see the decision of this court in Roche [2002] 1 Cr.App.R (S) 12.
32. It is also relevant to point out that we are here concerned with a conspiracy case and the sentencing court and this court must necessarily, in seeking to arrive at a just sentence, view the overall gravity of the conspiracy and also take a view of the individual role before coming to an appropriate conclusion as to the appropriate sentence. Mullen himself, we are told, was instructed to work off lists which had been prepared by others, in particular by Davison. It seems to us that the predatory element may not have been quite as pronounced in the case of Mullen as it was in the case of the other applicants. Nevertheless, the applicant Mullen would have been aware of the nature of the operation and well aware of what was required of him.
33. Having said that, it does seem clear that the role played in this conspiracy by Mullen was a considerably lesser role than that of the other two applicants. Indeed in terms of scale of involvement he seems to be towards the bottom of the scale. Furthermore, there are certain features here which need to be taken into account in Mullen's favour. He thought he was joining a legitimate operation and it was only after he joined that it became apparent to him that it was a dishonest scheme. Similarly, we attach weight to the fact that he left the criminal enterprise of his own volition and we have regard to his relatively good previous character. The judge here indicated that he would give a substantial discount for the plea, even at that late stage of the first day of the trial.
34. In the light of that it seems to us that the judge must here therefore have taken a starting point in the region of four years and it seems to us that there is force in the submission made by Mr Hislop that the sentence imposed is too long to an extent which permits this court to intervene. Having regard to all of these circumstances, we propose to grant Mullen leave to appeal against sentence to this court. We propose to quash the sentence and to substitute a sentence of 24 months' imprisonment.

Davison

35. Here, Mr Ramasamy has submitted that the sentences imposed were manifestly excessive in that in relation to counts 1, 2 and 3 the judge took too high a starting point, gave insufficient credit for the guilty pleas and failed to reflect the defendant's previous good character. It is also submitted that the sentences imposed on Davison fell outside the appropriate sentencing range on the facts of this particular case. Mr Ramasamy has, as we have indicated, drawn our attention to the Sentencing Guideline Council's guidelines on fraud. The particular analogy which is drawn is to confidence fraud and in that top category of confidence fraud which we have already described, involving the deliberate targeting of a large number of vulnerable victims, where the value of the property or consequential loss is in the range £100,000 to £500,000, the recommended starting point is five years' custody and the appropriate range is four to seven years in custody.
36. We have already indicated why we consider that the analogy needs to be approached with a measure of caution. That starting point and that range, of course, are indicated in respect of sentence following trial in the case of a person of previous good character. However in the present case it has to be borne firmly in mind in the case of Davison that we are concerned with the operation of successive fraudulent schemes.
37. In addition Mr Ramasamy has drawn our attention to a number of authorities, in particular he places at the forefront of his submissions Attorney General's Reference (Nos 48, 49, 50 to 51 of 2002) (Paulson and others) [2003] 2 Cr.App.R (S) 36. In that case a term of seven years was considered appropriate as a starting point for conspiracy to defraud in the form of an investment fraud resulting in losses to the public of some £7 million. Mr Ramasamy draws attention to the difference between the sums of money involved in that case and the proved sums in excess of £430,000 in the present case. However, we note from paragraph 28 of the report that in the Attorney General's Reference there was no deliberate targeting of small investors and that seems to us to be a vital difference between that case and the present case. Furthermore, we are concerned in the present case, so far as Davison is concerned, with successive fraudulent schemes and there is, as my Lord, Toulson LJ observed in the course of argument, apparent here a sheer determination by Davison to carry on with these frauds even after the first fraud ran into the difficulties of the freezing of the bank account.
38. This was a series of highly professional frauds of considerable duration which involved Davison shifting from one fraud to the next. Subject to one point to which we will come in a moment, it seems to us that even when allowance is made for a substantial reduction for a guilty plea, it is in all the circumstances simply not arguable that the total sentence of seven years' imprisonment was manifestly excessive. On the contrary, it is, as the single judge indicated, broadly in accordance with similar cases in this court.
39. We turn to the specific matter to which we have referred and that is an observation made by the judge during the course of his sentencing remarks as to the basis of the consecutive sentence which he imposed on count 6. The judge said this:

"As far as you are concerned, Adrian Davison, on count 1 a sentence of 5 years' imprisonment; on count 2 a sentence of five years' imprisonment concurrent; on count 3, that was whilst you were out on bail, six years concurrent; on count 6 you were on bail a second time and you yet again offended."

There is no doubt that the judge was right so far as count 3 was concerned. That offence was committed between July 2008 and April 2009 and Davison had been on bail since December 2007. So there is no doubt that the offence in count 3 was committed at a time when Davison was on bail and the judge rightly regarded that as a serious aggravating feature of that offence. It appears however that the judge made a slip when he suggested that the events which gave rise to count 6 had taken place at a time when Davison had been placed on bail a second time in respect of the matters which gave rise to count 3. In fact Davison was not arrested in respect of the matters which formed the subject of count 3 until 22nd April 2009. At the sentencing hearing, there was a debate in relation to those parts of the basis of plea in which Davison had indicated that he had not been involved in any criminal activities after April 2009. In particular, the allegations made in relation to criminal activities of a similar kind between June and September 2009, which originally had been the subject of count 7 and which subsequently became subsumed within count 3, were denied by Davison. The matter was canvassed with the judge. It was the prosecution's position that they did not require a Newton hearing, subject to the view of the judge. Accordingly, the prosecution accepted that it was appropriate to take the end date of Davison's involvement in the offending as April 2009. The judge indicated that he was satisfied that he had adequate sentencing powers by proceeding on that basis without having to hold a Newton hearing. This is not a case in which the judge said that it was clear on the documents that the involvement of Davison had continued beyond April 2009 and that therefore it was not necessary for that reason to hold a Newton hearing.

40. In those circumstances, it seems to us that Mr Ramasamy does establish that the judge was in error when he said in relation to count 6 that Davison was on bail a second time. The true position was that he was on bail in respect of the matters giving rise to counts 1 and 2, but he was not on bail at the time of his admitted involvement in count 6, in respect of the matters which became the subject of count 3. It seems to us that had the judge not made this error he might well have structured his sentences differently. Nevertheless, it does seem to us that the total sentence imposed, one of seven years, was entirely justified. We also consider that it was entirely appropriate that the judge should have imposed a consecutive sentence in respect of what was yet another fraud on the part of Davison. In the circumstances, we do not consider that there has been any injustice and we do not consider that we should interfere with the sentence imposed on that ground. We refuse permission to appeal against sentence. We will return to the question of the financial reporting order.

Bingham

41. The first of the original grounds advanced is that the judge failed to have any or any sufficient regard to the basis of plea. It is fair to say that Mr Mann in his submissions to us today placed less reliance on the basis of plea than perhaps was indicated in the written submissions. Secondly, it is submitted that the judge wrongly assessed the applicant's culpability as equal to Davison. It is said that the loss occasioned by this applicant playing his part in count 1 was about £90,000. The point is made that in spite of the applicant's cessation of fraudulent activities in December 2006, when he appears to have fallen out very badly with Davison, Davison continued and used others to perpetrate this fraud. Furthermore, it was apparent from his plea to counts 2 to 3 that there is no evidence that Bingham participated in the planning of the fraud or that he recruited co-conspirators. There is no evidence, it is said, that he was very much involved before the summer of 2006 and it is said that there is an objectionable disparity between the sentences imposed on Bingham and on Davison, both of whom were sentenced to a term of five years' imprisonment in respect of count 1. It is also said that the judge set his starting point for sentence too high and failed to have regard to the applicant's true period of involvement.
42. Bingham was involved in one conspiracy. The judge imposed the same sentence on count 1 as in the case of Davison. The count 1 conspiracy lasted some seven months. The fraud was based outside the United Kingdom. Bingham operated the United Kingdom end of the fraud. It was he who paid the so-called dividends to the investors and it was he who transferred the money out to Davison.
43. In sentencing Bingham, the judge stated that he regarded Bingham as Davison's right-hand man. We are satisfied on the basis of the material that we have seen that he was clearly entitled to come to that conclusion. Bingham was an integral part of this fraud. His involvement was in circumstances where he knew from the outset that this was a dishonest scheme. His involvement was on a commission basis and was a continuing one. It seems to us that his role was pivotal to the perpetration of the fraud. We do not consider that the judge's view of his role as Davison's right-hand man was in any way inconsistent with the basis of plea. Furthermore, there was in the case of Bingham an aggravating factor not present in the case of Davison. Bingham had previous convictions for dishonesty and very serious dishonesty. In 1990 he was convicted of 11 counts of theft and one of procuring the execution of a valuable security by deception and sentenced to a total of six years' imprisonment. This was in our view a substantial aggravating feature.
44. In all the circumstances, it seems to us that the sentence of five years' imprisonment is within the permissible range even when one makes allowance for a substantial reduction for a plea of guilty. That plea was not entered even on the first day of the trial, 6th September, when the judge gave his indication. In fact the plea was not entered until 15th September. It was entered only as the jury was on the point of being empanelled, after two witnesses expressly required by Bingham to travel from abroad to give evidence had been brought to the United Kingdom and after the prosecution had been required to redraft its opening and prepare new jury bundles.
45. In the further grounds, the applicant relies on his age and his current poor health. The applicant is 71 years of age. He is currently suffering from diabetes, hyperthyroidism, hypertension, heart disease, osteoarthritis and cataracts. He was sentenced in May 2011. All of the evidence before us as to his medical condition, subject to one new matter, dates from November 2010. We have already referred to the fact that Bingham absconded. In fact he was a fugitive between 2nd February and 17th March 2011 when he was found living in bed and breakfast accommodation in Surrey using a false name.
46. There is now a further report on Bingham provided by the NHS trust operating in Wandsworth Prison. That indicates that Bingham's mobility is now further restricted, that he is in a wheelchair and that he has ulceration of both feet. It sets out the drugs which he is currently prescribed and these include warfarin.
47. It seems to us on the basis of this further medical report that he is not in a critical condition, nor is this in our judgement a case where a very long sentence has been imposed where the length of the sentence is likely to affect the health of the prisoner. His condition is quite serious, but the appropriate medical care will be available to him in Wandsworth Prison or wherever else he serves his sentence, and it does not seem to us that this is a consideration which should cause us to reduce the sentence imposed.
48. It is also submitted in the additional grounds that the judge failed to pay sufficient regard to the sentencing guidelines on confidence fraud. We have already indicated the court's view in relation to that. It is said that the judge took insufficient account of the fact that Bingham's last conviction was 15 years earlier. It seems us that notwithstanding their age, those convictions remain highly relevant. They show him to be a thoroughly dishonest man. It is said that the judge took insufficient account of the fact that the applicant's age and ill-health mean that there is little risk of his reoffending. However we note from the letter from his general practitioner which was before the sentencing judge that he had been suffering from hyperthyroidism since 1998, from heart disease since 2001, from hyperlipidaemia since 2004, from cataracts since 2004, from obesity since 2005, from hypertension since 2006 and from left ventricular hypertrophy since 2006. On his own account he was suffering from all of those conditions at the time of his offending.
49. We consider that it is not arguable that the sentence imposed was manifestly excessive or wrong in principle and accordingly we refuse permission to appeal to this court against that sentence.

Financial reporting orders

50. We turn to the financial reporting orders made in respect of Davison and Bingham. We begin with the observation that it seems to this court that such ancillary orders need to be given very careful consideration before the sentencing court. We understand that it will often be the case that the attention of everybody concerned will be concentrated upon whether a custodial sentence will be imposed and, if so, its length. However, these ancillary orders are matters of considerable importance and they do require very careful attention. There is a need for the Crown to present its case as to precisely what is required in terms of obligations to report under such an order and to demonstrate why such conditions are necessary. It is then appropriate for the defence to respond in detail to such an application.
51. This court is placed in the difficulty that we suffer a severe lack of information in relation to the orders made and as to the precise basis on which they were made. We have considered the possibility of adjourning this part of the hearing for further information to be obtained and further submissions to be made in relation to the financial reporting orders. However, we have come to the conclusion that it would be disproportionate to take that course.
52. We limit ourselves to these observations. Under the Serious Organised Crime and Police Act 2005 a court sentencing a person for an offence of conspiracy to defraud may impose a financial reporting order which requires the person to provide reports at stated intervals providing the required particulars of his financial affairs. Such an order may be imposed only if the court is satisfied that the risk of the person's committing another stipulated offence is sufficiently high to justify the making of the order.
53. In the cases of Davison and of Bingham the judge imposed, in each case, such an order for the maximum period of 15 years. The purpose of such an order is not to punish the applicant but to protect the public. (See the judgment of this court in Terence Adams [2008] EWCA Crim 914, in particular at paragraph 25.)
54. In the case of Davison we note that the pre-sentence report concluded that there was in his case a medium risk of reoffending. Notwithstanding the fact that he had no previous convictions, we consider that the persistent and repeated criminality involved in his offences amply justifies the judge's conclusion that the risk of his committing another such offence was sufficiently high to justify the making of the order. There is insufficient material before us to persuade us that the judge was wrong to make it for the period of 15 years.
55. In the case of Bingham, his history of offending is such as to lead us to the view that the judge was clearly correct in concluding that the risk of his committing a further such offence was sufficiently high to justify the making of a financial reporting order. Notwithstanding the fact that the pre-sentence report assessed his risk of reoffending as low, we consider that his history of dishonest offences entirely justified the making of the order and readily satisfied the statutory test. In his case, again, we are not persuaded on the material before us that it has been shown that the order was made for too long a period and accordingly we do not propose to disturb that order.
56. Finally, in this regard, we note that it may be possible for an application to be made in due course for the variation of these orders in certain circumstances, including if there is a change of the circumstances of these applicants.
57. We refuse permission to appeal against the financial reporting orders.
58. These have been reasonably complex cases and we have all been assisted greatly in our preparation for the hearing by the very helpful written submissions. We have also been assisted today by the clear and concise submissions by all counsel involved and we wish to record our gratitude.
59. MR HISLOP: My Lord, may I raise one matter? I of course appear today without a representation order and I wonder whether the court would see fit, certainly in the case of Mullen, to grant a representation order?
60. LORD JUSTICE TOULSON: Yes, granted.
61. MR RAMASAMY: May I just address your Lordships briefly on that as well? We of course have been unsuccessful and I appreciate that there are ordinarily consequences to that. Of course the court has accepted that we have established that there was an error in the sentencing process which required the court to consider what to do about it. Could I invite the court to consider whether in those circumstances an order might be made in respect of Mr Davison.
62. LORD JUSTICE TOULSON: I am afraid not. Notwithstanding the genuine plaudits which your advocacy has received, the fact of the matter is he has renewed an application which we do not consider to have any merit and I am afraid that is that.
63. MR RAMASAMY: On behalf of the Bar can we thank your Lordships for sitting late to finish the case.