Jersey Unreported Judgments

Inferior Number Sentencing - supplying false or misleading information to the Jersey Financial Services Commission.

[2015]JRC132

Royal Court

(Samedi)

19 June 2015

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Kerley and Sparrow

The Attorney General

-v-

Andrew Crawford Norman Fleming

Sentencing by the Inferior Number of the Royal Court, following a guilty plea to the following charge:

1 count of:

Supplying false or misleading information to the Jersey Financial Services Commission, contrary to Article 28(1) of the Financial Services (Jersey) Law 1998 (Count 1).

Age:  48.

Plea: Guilty.

Details of Offence:

Over the course of four weeks from June to July 2013 the defendant told a multitude of lies to the Jersey Financial Services Commission in the course of a dishonest attempt by him to acquire the business of a Jersey trust company for a multi-million pound sum.  The defendant claimed that he could buy the trust company with his own money, and that the purchase would not involve any third party money, claimed that he had never been subject to bankruptcy proceedings and had no previous convictions.  In reality he had no legitimate source of wealth at all and was impecunious.  He had been declared bankrupt in Scotland in 2010 and convicted in Scotland in 2008 of breaching a disqualification from acting as a company director.  The evidence suggested that if the defendant had access to sufficient money to acquire the business it would have come from funds he had obtained from unknown third parties on the pretext of investing them in a trade in Hong Kong, and who were by now pursuing him for repayment having seen no return on their money.  The provenance and legitimacy of such funds, to which the defendant was not lawfully entitled, in any event, would have been entirely opaque, and with obvious risks to both the trust company and the integrity of the Island's finance industry should the purchase have gone through.  In order to bolster these lies the defendant told many other lies and forged bank statements and correspondence suggesting he held hundreds of millions of pounds on deposit.  These he then passed off as genuine to the Jersey trust company and his Jersey lawyer.  He was arrested after the Commission obtained proof that he had a previous conviction and had been declared bankrupt.  The other lies as to his wealth, and the forged bank documents, were not discovered until later in the course of the ensuing police investigation. 

Aggravating features

Concerted and sophisticated dishonesty over a protracted period in which he sought to mislead the Commission, both in writing, and by lying to its officers in face-to-face meetings.  Had he succeeded, the Commission would have been deceived into concluding that an inveterate liar, forger, former bankrupt and convicted offender who was being pursued by unknown third parties for the return of money he had obtained from them was a fit and proper person to own a Jersey trust company.  The risk to the integrity and reputation of the finance industry was obvious. 

Details of Mitigation:

Guilty plea, albeit at the eleventh hour and in respect of overwhelming evidence of guilt.  The attempt to deceive the Commission failed.  The lies about bankruptcy and no previous convictions had been relatively easy to discover and were determinative of his attempt to acquire the business.  It was always unlikely that his attempt to deceive the Commission would have succeeded. 

Previous Convictions:

1 conviction in 2008 of breaching disqualification and acting as company director for which sentence received was 80 hours' community service.

Conclusions:

Count 1:

(Based on a starting point after trial of 20 months' imprisonment).  15 months' imprisonment.

Forfeiture of the defendant's laptop under Article 2(1)(a) of the Criminal Justice (Forfeiture Orders)(Jersey) 2001 sought.

Sentence and Observations of Court:

Count 1:

12 months' imprisonment.

Forfeiture of the defendant's laptop ordered under Article 2(1)(a) of the Criminal Justice (Forfeiture Orders)(Jersey) 2001.

The offence passed the custody threshold.  The finance industry is a major contributor to the Island's economic wellbeing, such that it is of fundamental importance that its integrity be maintained.  If the defendant had been successful in his bid to acquire the trust company the reputation of the industry and of the Island would have been severely undermined.  The lies were a concerted effort by the defendant to achieve his ends.  The Court would make it clear that lying to the regulator would not be tolerated. 

The Crown's reference to the cases of AG v Michel and AG v Christmas as examples, by way of indirect analogy, of other cases in which the defendant's conduct threatened to undermine public confidence in important public institutions was only of limited assistance, since in those cases the defendants enjoyed position of public trust, which was not the case here. 

M. T. Jowitt, Esq., Crown Advocate.

Advocate M. P. Boothman for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        You are to be sentenced today in respect of a single count of supplying false and misleading information to the Jersey Financial Services Commission, contrary to Article 28(1) of the Financial Services (Jersey) Law 1998.  Although this is a single count, it relates to a continuous set of actions over a period of approximately one month, between 25^th June and 25^th July, 2013.  It is not necessary for the Court to set out the detail of your offending at length; this has been explained by the Crown, and the Court has had the opportunity to review the documentation contained in the Crown's bundle, which supports the characterisation of your offending by the Crown. 

2.        The context of this offending is your attempt to acquire a local trust company.  The Jersey Financial Services Commission was involved as part of that process.  Your lies included that you had amassed a substantial personal wealth to the effect that you could afford to buy the trust company in question from your own resources; that such was your wealth that you and your family had been at risk of kidnap and you had employed professionals to remove your internet profile as a result; that you had never been subject to bankruptcy proceedings and that you were of good character in that you had no previous convictions.  None of those things were true. 

3.        In furthering your attempt to purchase the trust company you duped professionals into acting for you and, as you were challenged from time to time as to why information that was required or more funds that you promised were not forthcoming, you came up with excuses seeking to account for this, which were of course also untrue.  It would be possible for the Court to go on at some length, detailing the individual lies and deceits that you perpetrated in the course of your attempted acquisition of the trust company in your dealings with the Commission. 

4.        The Court notes that you have one previous conviction.  In 2008 you were convicted at Ayrshire Sheriff's Court of one offence of breaching disqualification and acting as a company director in respect of which you were sentenced to 80 hours' of community service. 

5.        You have pleaded guilty and you are entitled to credit for that.  However, the Court has had the benefit not only of the very detailed explanation of the facts provided by the Crown, but also the opportunity to review some of the evidence contained in the Crown's bundle, and it is clear that the evidence against you is very strong.  Furthermore, you did not plead guilty at the earliest opportunity but allowed the matter to progress to a significant stage in the trial process before you accepted your guilt and entered a guilty plea.  Accordingly, we cannot give you the full credit that we would otherwise have been able to had your guilty plea been entered on the first possible occasion. 

6.        We have considered carefully all of the mitigation put forward on your behalf by your counsel and, in particular, the letters both from you and your family and friends.  They paint a very different picture of you than that painted by the detail of your offending. 

7.        This is the first occasion on which the Court has been called upon to impose a sentence under Article 28 of the Financial Services (Jersey) Law 1988.  The maximum penalty permitted by statute is one of 5 years' imprisonment.  It has been pointed out to us that this is rather higher than the equivalent offence in the United Kingdom but that does not surprise us.  The finance industry in Jersey is an important part of the economy of the Island and for Jersey to operate as the leading financial services centre it is, requires that the integrity of the financial services industry is maintained.  Had you been successful in your ploy to acquire the trust company in question, and had provided funding from sources undisclosed to the Commission, Jersey's reputation and the integrity of the industry would have been severely undermined. 

8.        The lies told in this matter were not reckless, they were deliberate and part of a concerted effort to produce the result that you sought.  In the circumstances the Court considers that, as accepted by your counsel, the custody threshold is passed.  This matter can only be met by a sentence of imprisonment.  However, we are not entirely satisfied that the cases of AG-v-Michel [2011] JRC 093 and AG-v-Lewis Christmas Foot and Cameron [2012] JRC 177 are sufficiently comparable to provide a very clear guide to the Court.  They are, as your counsel has said, different in many ways, although they do in our view provide some assistance. 

9.        In the view of the Court the correct sentence is one of 12 months' imprisonment and that is the sentence we impose. 

10.      We also order the confiscation of your laptop as one of the instrumentalities of the offence.  This order was not opposed. 

Authorities

Financial Services (Jersey) 1998.

AG-v-Michel [2011] JRC 093.

AG-v-Lewis Christmas Foot and Cameron [2012] JRC 177.