Bright, R v

Where a defendant has been properly convicted of conspiracy to defraud, the maximum sentence is the statutory maximum for that offence. The maximum for an overlapping statutory offence may guide sentence, but does not impose a lower cap. An appellate court must assess a sentence against the correct maximum, despite the sentencing judge’s error, although a defendant’s own appeal cannot increase the sentence.

A maximum sentence is reserved for crimes of the utmost gravity. It need not await the most serious hypothetical case that can be imagined. Release provisions govern the administration of a custodial sentence. They do not alter the term which the court has imposed.

The appellant, the former managing director and chief executive of Independent Insurance, was convicted at the Crown Court at Southwark of two conspiracies to defraud. The conspiracies involved concealing substantial claims liabilities and unfavourable reinsurance arrangements, thereby misleading actuaries, directors, shareholders, creditors and policyholders.

He received concurrent sentences of seven years’ imprisonment. The sentencing judge had proceeded on the mistaken basis that the maximum sentence was seven years because the conduct also fell within fraudulent trading under the Companies Act 1985. The judge also initially misstated the applicable release regime.

The appeal challenged the maximum-sentence analysis, the length of the sentence, and the effect of the release provisions.

1. Appeal dismissed. The appellant was properly convicted of two counts of conspiracy to defraud. The available maximum was ten years’ imprisonment under section 12(3) of the Criminal Justice Act 1987, rather than seven years.

2. The fact that the conduct could also have constituted fraudulent trading under section 458 of the Companies Act 1985 did not restrict sentence for the properly charged common-law conspiracies. A parallel statutory offence can guide the sentencing exercise, and in some circumstances may justify sentence by reference to its lower maximum. It is guidance rather than prescription. The scale and nature of this fraud made conspiracy to defraud an appropriate charge.

3. The Court was required to review sentence by reference to the correct statutory maximum. The Crown had not made a representation on which the appellant was entitled to rely, and a judicial error could not curtail the Court’s sentencing jurisdiction. On an offender’s appeal, however, the sentence could not be increased.

4. A maximum sentence is exceptional and reserved for crimes of the utmost gravity. It is unnecessary to identify the worst conceivable example of the offence. The question is whether the case falls within the broad band of the gravest cases ordinarily encountered. The prolonged, systematic fraud, its vast financial consequences, and the appellant’s leading role satisfied that standard. His mitigation, the alleged disparity, and delay did not make the concurrent seven-year terms manifestly excessive.

5. Section 33 of the Criminal Justice Act 1991, not the later statutory regime, governed release. That correction affected the explanation of release eligibility, not the seven-year sentence itself. The judge had not intended to impose a term measured by an assured period actually served.

• Court of Appeal (Criminal Division): The appellant’s appeal against concurrent sentences of seven years’ imprisonment for two conspiracies to defraud was dismissed.
• Crown Court at Southwark: Before His Honour Judge Rivlin QC and a jury, the appellant was convicted on 22 October 2007 of two counts of conspiracy to defraud and sentenced to concurrent terms of seven years’ imprisonment.