David Ames v R

Section 4(1)(c) of the Fraud Act 2006 contains one overarching ingredient of intention to cause a financial impact. The alternatives of gain, loss and risk of loss are mechanisms by which that ingredient may be proved, not separate ingredients requiring jury unanimity. A Brown direction is required only where the alternatives concern distinct events, different defences or different matters constituting the ingredient. The conviction appeal was dismissed. Consecutive sentences were justified by the separate periods, entities and victims involved, together with the exceptional scale of the offending. The sentence appeal was also dismissed.

The appellant controlled companies forming the Harlequin Group and was convicted at the Crown Court at Southwark of two counts of fraud by abuse of position. He received consecutive terms totalling 12 years’ imprisonment and a 15-year director disqualification.

On appeal, he argued that the gain and loss alternatives in section 4(1)(c) of the Fraud Act 2006 were separate legal ingredients, requiring a Brown direction. He also challenged the consecutive sentences as excessive and contrary to totality. The central questions were whether the jury needed to be unanimous about the precise form of intended financial impact and whether the total sentence was manifestly excessive.

The court dismissed both the appeal against conviction and the appeal against sentence.

1. Section 4(1)(c). The offence under section 4 contains three essential ingredients: occupying a position in which the defendant is expected to safeguard another’s financial interests; dishonest abuse of that position; and an intention, by means of the abuse, to make a gain or cause loss or expose another to a risk of loss. The alternatives in section 4(1)(c)(i) and (ii) are mechanisms for proving one overarching intention, not separate ingredients. The word “or” is used inclusively. The gain or loss may be temporary or permanent, and actual success is unnecessary under section 5. The reasoning was consistent with R v Harrison [2017] EWCA Crim 296 and R v Pennock [2014] EWCA Crim 598.
2. Jury unanimity. R v Brown (1984) 79 Cr App R 115 requires unanimity about every ingredient, but subsequent authorities distinguish ingredients from ancillary mechanisms. A Brown direction is required only in the relatively rare case of an appreciable danger of disagreement about the ingredient, distinct events each capable of constituting it, or different means giving rise to different defences. R v Smith (Owen) [2014] EWCA Crim 2163, R v Dunleavy [2021] EWCA Crim 39, R v Philips [2019] EWCA Crim 577 and R v Chilvers [2021] EWCA Crim 1311 illustrated that distinction. The appellant’s case involved no different defence or distinct event. The jury was properly directed and no prejudice arose.
3. Sentence. Under the Sentencing Council’s Totality Guideline, consecutive sentences may be appropriate where offences involve different facts or where concurrent sentences would not reflect the overall criminality. They must not be imposed merely to evade a statutory maximum. The different periods, companies and victims, together with losses greatly exceeding the Fraud Guideline’s starting-point category and the sophisticated, sustained offending, justified consecutive terms. The available mitigation, including age, health, delay and previous good character, had been considered. The total sentence of 12 years was not manifestly excessive.

• Court of Appeal (Criminal Division): The appeals against conviction and sentence were dismissed: [2023] EWCA Crim 1463.
• Crown Court at Southwark: The appellant was convicted of two counts of fraud by abuse of position and sentenced to consecutive terms totalling 12 years’ imprisonment. A 15-year director disqualification was also imposed.