On 16 June 2014 the Court of Appeal in London heard the appeal of Mr Sam Ernest against a confiscation order in the sum of £308,380 made against him at Kingston-upon-Thames Crown Court. The Appeal Court judgment R v Ernest  EWCA Crim 1312 makes interesting reading.
Mr Ernest purported to run a business as an events organiser. He would claim to have contacts from whom he could obtain sought-after tickets to popular high profile events, such as Wimbledon, the London Olympics, rock concerts or film festivals, in return for money.
Mr Ernest sometimes provided the tickets for which he had been paid, but often he would not. When tickets were not provided he would usually promise refunds – on some occasions refunds were given, but on others they were not.
His victims were in the main either wealthy people or organisations who could afford to pay substantial sums of money for prestige events, or men whom he had befriended or women with whom he entered into relationships.
One woman with whom he was having a relationship got a party of 18 people together, some from the USA, to attend events at the London Olympics. She paid almost £4,000 to Mr Ernest. He continued to promise that the tickets would arrive right up until after her friends had arrived in the UK.
In total Mr Ernest defrauded his victims of over £48,000.
The police investigation
Mr Ernest’s activities had first been reported to the police in 2009, but they took no action at that stage. It was not until 2012, when a special team of police officers were investigating fraud associated with tickets for the London Olympics, that attention was focused on his activities.
On discovering that the police wished to speak to him, Mr Ernest prevaricated and would not agree to attend for interview. No doubt this was in part because he was a United States citizen who had entered the UK on a six month tourist visa in 2005 and was an illegal over-stayer. His passport had expired in 2010.
However in December 2012 Mr Ernest pleaded guilty to 17 counts of fraud and was sentenced to 4 years imprisonment. Confiscation proceedings followed.
The confiscation proceedings
Mr Ernest was subject to confiscation proceedings on the basis that he had a ‘criminal lifestyle‘ having been convicted in the same proceedings of more than 3 offences from which he had obtained a benefit and had, in aggregate, obtained a benefit of at least £5,000, s75 Proceeds of Crime Act 2002.
The Appeal Court judgment does not, of course, give a full history of the confiscation proceedings. We do not know what was in the prosecution’s s16 statement or in Mr Ernest’s response. We do know, however, that the confiscation went to a full hearing in the Crown Court which heard evidence from a Detective Constable Knowles and from Mr Ernest.
The prosecution assertions
DC Knowles referred to bank accounts held by a Ms Barbara Howell which had apparently been used by Mr Ernest (and by Ms Howell for legitimate purposes). There was also a bank account in the name of J Bailey Morgan which apparently Mr Ernest controlled. DC Knowles considered the movements on these bank accounts since the ‘relevant day’, which it was agreed was 29 August 2006 (six years prior to the date on which Mr Ernest had been charged).
DC Knowles calculated the amount of money in these accounts paid in by known victims together with all of the unexplained credits to the accounts, that is all the monies deposited during the relevant period other than those which represented Ms Howell’s legitimate earnings and funds. This figure came to £209,980. This figure included sums specifically identified as being monies paid into that account by persons identified as victims of Mr Ernest’s activities.
The prosecution invited the court to assume all these sums credited to the various bank accounts to be benefit of Mr Ernest’s general criminal conduct pursuant to s10(2). Presumably to avoid risk of double counting the prosecution did not seek to assert, as benefit of particular criminal conduct, any additional benefit of the 17 offences of which Mr Ernest had been convicted.
However the prosecution did assert that a further assumed benefit arose, under s10(4), in respect of Mr Ernest’s day to day living expenses over the period since the ‘relevant day’. These were estimated at £16,400 per year for 6 years, so £98,400 in total. The prosecution accepted that to some extent Mr Ernest had been financially supported over this period by a succession of girlfriends but contended that, even so, he would have incurred this £98,400 expenditure himself.
In consequence, the prosecution’s total benefit figure was £308,380. The prosecution apparently did not accept that Mr Ernest’s ‘available amount’ would be less than his benefit.
The defence evidence
Mr Ernest asserted that on at least some occasions he had supplied tickets for which he had been paid and on other occasions he had made refunds to customers. So it would not be correct, in his view, to treat the entirety of the sums banked as benefit. He also asserted that he had no assets available and no hidden assets.
However the defence produced no books and records of the business and no report of a forensic accountant, nor did the defence produce documentary evidence of Mr Ernest’s current ‘available amount’. The defence relied upon the oral evidence of Mr Ernest.
The judgment in the Crown Court
The Crown Court judge entirely rejected the oral evidence of Mr Ernest. He was, the judge concluded, a “career fraudster” who had used the bank accounts of others and had produced no documents in support of his oral evidence. The judge concluded that he was a dishonest man who had lied repeatedly under oath.
The judge accepted the benefit figure of £308,380 asserted by the prosecution and found that the defendant had not discharged the burden upon him to show that his ‘available amount’ was less than his benefit.
Accordingly he ordered Mr Ernest to pay £308,380 within 6 months, with a default sentence of 3 years consecutive to the prison term he was already serving.
The Court of Appeal judgment
On appeal it was argued that the judge should have reduced the benefit figure to reflect legitimate business activities conducted by Mr Ernest where he had provided tickets or had made refunds. Furthermore Mr Ernest had incurred expenditures in obtaining the tickets which he had supplied.
The Court of Appeal would have none of this. It noted the absence of evidence in support of the asserted legitimate activities and commented that “the fact that some unidentified proportion of that money might conceivably be referable to some specific (but unidentified) business transaction does not render the making of the assumption incorrect”.
The Court was not prepared to make any reduction in the benefit figure in respect of expenses which Mr Ernest might have incurred. It regarded the occasional provision of tickets by Mr Ernest as a means of furthering his fraudulent purpose by luring customers to do more business with him.
The £209,980 assumed benefit arising from credits to the bank accounts was therefore upheld.
But the Court of Appeal did accept that the bank statements showed expenditures by Mr Ernest on his living costs. These expenditures had therefore been met from monies already included in assumed benefit. This undermined the prosecution’s assertion that Mr Ernest would have incurred £98,400 of living expenditure funded entirely by additional assumed criminal conduct. There was no other suitable figure before the court, so this head of benefit was omitted on appeal.
In consequence the benefit figure was reduced to £209,980. The court ordered Mr Ernest to pay this lower figure and reduced the default sentence to 2 years 6 months.
One doesn’t know whether in this case the defence had instructed a forensic accountant or not. It is possible that a forensic accountant’s report had been obtained but had not been disclosed as part of the defence evidence (perhaps for good reason!).
However it should come as no surprise to find a Crown Court judge entirely rejecting the unsupported oral evidence of a convicted defendant. Possibly if a forensic accountant had given evidence in the Crown Court confiscation hearing the judge might have accepted that the defendant, having incurred the expenses shown on the bank accounts, would not have had an ‘available amount’ equal to the total of his assumed benefit. Such a conclusion would have been consistent with the Court of Appeal decision in McIntosh & Marsden v R  EWCA Crim 1501.
In the event this defendant seems destined to serve his default sentence in due course.
(Note: This article applies to confiscation proceedings under the provisions of Part 2 of the Proceeds of Crime Act 2002 in England and Wales. There are a number of additional issues which could be relevant to a defendant’s confiscation proceedings in particular cases which it is not possible to deal with in a relatively short article such as this. Appropriate professional advice should be sought in each individual case.)