Mangena, R v

Under section 139(1) of the Criminal Justice Act 2003, a witness need not first demonstrate a failure of memory before using an earlier statement to refresh memory. The statutory conditions must be met, but the judge must also assess whether the witness’s recollection was likely to have been significantly better when the statement was made.

In sentencing a fraudster, laundering and spending the proceeds may aggravate the fraud but, where it is part and parcel of the same course of conduct, the gravamen should be reflected in the fraud sentence rather than by consecutive sentences. Youth may justify a limited reduction even in a grave and remorseless fraud.

The applicant was convicted at Southwark Crown Court, following a second trial, of fraudulent trading, money laundering and carrying on an unauthorised investment business. The prosecution alleged that he was the driving force behind a Ponzi fraud which obtained about £3.25 million from more than 1,000 investors. He received five years’ imprisonment for fraudulent trading, two years consecutively for money laundering, and 18 months concurrently for the unauthorised investment business, making seven years in total.

He renewed an application for leave to appeal against conviction. His principal ground challenged the trial judge’s general practice of allowing investor witnesses to refresh their memories from police statements under section 139 of the Criminal Justice Act 2003. With leave, he also appealed against sentence, contending that the laundering was part of the same overall fraud and that the total sentence was excessive.

1. Conviction. The renewed application for leave to appeal against conviction was refused. Section 139(1) of the Criminal Justice Act 2003 did not impose a preliminary requirement that a witness must first stumble or display a defective memory before refreshing it from an earlier statement.

   Although the witness had to state that the document recorded an earlier recollection, and that the recollection was likely then to have been significantly better, the latter issue ultimately required the judge’s assessment. The provision therefore left a discretion to the judge once its conditions were engaged. The trial judge, who had experience of the first trial and the detailed evidence involved, was well placed to exercise that discretion. There was no arguable wrongful use of the power and no basis for questioning the safety of the convictions.

2. Sentence. The appeal against sentence was allowed. The court accepted that the offending was an exceptionally serious fraud involving a large number of victims who had entrusted money to the applicant. The sentencing approach in Clark [1998] 2 Cr App R 137 was directly relevant to fraud involving the deliberate misuse of entrusted investments.

   However, the money laundering consisted of the fraudster’s spending of the company’s ill-gotten gains. It aggravated the fraud but was part and parcel of it. The gravamen should therefore be reflected in the fraudulent-trading sentence, rather than by treating the laundering as a separate basis for consecutive punishment.

3. The court did not regard the case as one of the utmost gravity requiring the seven-year statutory maximum for fraudulent trading. The applicant’s youth justified some reduction, despite his lack of remorse. The total sentence of seven years was quashed and replaced by six years: six years for fraudulent trading, two years for money laundering concurrently, and 18 months for carrying on an unauthorised investment business concurrently.

• Court of Appeal (Criminal Division): Renewed application for leave to appeal against conviction refused. Appeal against sentence allowed and total sentence reduced from seven years to six years.
• Crown Court at Southwark: On 7 March 2008, the applicant was convicted of fraudulent trading, money laundering and carrying on an unauthorised investment business. On 10 March 2008, he received a total sentence of seven years’ imprisonment.