We covered the sentencing hearing for Achilleas Kallakis and Alexander Williams following their convictions for various offences of fraud
The sentences passed were referred to the Court of Appeal by the Attorney-General who asked the Court of Appeal Judges to rule on whether the sentences passed were ‘unduly lenient’.
What happened at the Court of Appeal
Full details can be obtained from the Court of Appeal Judgment,. The main questions that were addressed were set out at para 1 :
i) Whether and to what extent the Sentencing Guidelines Council’s guideline upon sentencing for statutory offences of fraud is relevant to the task of sentencing for an offence of conspiracy to defraud;
ii) To what extent the absence of loss may constitute mitigation of the seriousness of the offence;
iii) The appropriate use of the power to impose consecutive sentences for substantive offences of fraud and for conspiracy to defraud.
The Court of Appeal answered those questions at paras 72-78. Broadly speaking, the Court considered that the starting point picked by the Judge was correct, but he should have a passed a consecutive sentence, even though this would have taken the sentence over the 10 year maximum.
In light of the scale of the fraud, the Prosecutor’s appeal was allowed and Mr Kallakis received a total sentence of 11 years (rather than 7) and 8 years for Mr Williams. This (coupled with the other case considered) indicates perhaps willingness to pass higher sentences for fraud than previously..
Comment – Polluter Pays?
The trial Judge had indicated that the banks had “undoubtedly acted carelessly … Indeed [the Bank of Scotland] was given clear and precise warnings by its lawyers about the risks of accepting assurances in a letter from an alleged co-conspirator, a Swiss lawyer. It almost beggars belief senior management chose to disregard that warning and rushed to complete the deal at all costs. It is apparent … both the defendants took full advantage of the prevailing banking culture in which corners are cut, and checks on them superficial and cursory”.
The Court of Appeal rejected that this provided mitigation, but should they have done? The fact that someone is easily conned, normally makes them more vulnerable (and the offence more serious), but it is clear that the banks were sophisticated individuals. “You can’t con an honest man” so the saying goes and there is a suspicion that it was greed on the part of the financial institutions that lead them to turn a blind eye.
It is a difficult and interesting question that we would be interested in your views on.
On a separate point, the banks have a pretty good deal at the moment. Michael Turner QC (the Chair of the Criminal Bar Association) made the point in a recent speech – “Frauds on banks who care little for creating fraud proof systems because, they never have to pick up the bill. They are allowed to write off the money stolen against tax, the ensuing criminal case is then investigated and prosecuted at the tax payers expense and in the event of conviction the civil action is delivered to the banks on a plate at minimal cost.”
This is more clear cut. Given the current problems with legal aid, the argument that the banks should pay towards the costs of a prosecution (in part due to their own failings) is a very strong one.