R v John Geoffrey Cooper 2013

The appellant offender (C) appealed against a total sentence of nine months' imprisonment imposed for two offences contrary to the Financial Services and Markets Act 2000.


C and his co-accused (H) had been financial advisors who were regulated by the Financial Services Authority (FSA). C and H sold their firm and received a low purchase price as the purchasers had gone into liquidation. In 2010 H faced bankruptcy but was authorised by the FSA to give financial advice because of his association with a different financial services company. C joined H and assisted with finding clients, and shared the resulting commission. They targeted their previous clients, most of whom were retired. H became aware that the FSA were investigating him and thus resigned from his existing role which terminated his FSA authorisation to give financial advice. H stated that he had "passported" his right to advise as a result of joining a Cypriot financial services firm. H continued to give financial advice between May and October 2010 without authority and failed to disclose that fact to his clients or that he was an undischarged bankrupt. H persuaded his clients to cash in a fund for no reason other than that he would secure a large commission. In 2011, the FSA banned him from giving financial advice; however he continued between June and November 2011 and neither H nor C told their clients about H's prohibition. H became involved with a high-risk investment fund and concealed the fact that he had moved his clients' funds into it to receive a £50,000 commission. Between July and October 2011 C advised an individual to invest in the high-risk investment fund, but he invested elsewhere. H was convicted of a number of offences contrary to the 2000 Act and received a sentence of two years' imprisonment and C was convicted under s.19, s.23(1), s.397(1)(b) and s.397(2). The judge noted the differing roles of H and C but that C had full knowledge of what H was doing even though C played a subordinate role and engaged in criminal behaviour for a shorter period than H; that immediate custody was necessary, that C knew the consequences that H's bankruptcy had on the "passported" rights and that they both concealed the fact that H did not have FSA authorisation; and had exposed clients to substantial risk and eroded public confidence in financial advisers.


C submitted that the judge had (1) wrongly taken into account as aggravating features matters that were not relevant as the judge, having indicated that he was taking into account the entire indictment period because he had found that C knew what was happening, sentenced C as if he were convicted of offences of which he was acquitted; (2) given too much weight to the risk to which the clients were exposed when there was no such risk; (3) failed to sufficiently reflect C's role in the joint enterprise; (4) failed to give sufficient weight to the effect custody would have on C, C's partner and C's father; (5) failed to give sufficient weight to the passage of time between the commission of the offence and sentence; (6) erred in determining that a sentence of nine months was warranted, that the offences crossed the custody threshold and in failing to suspend his sentence.


HELD: (1) C's argument was not well founded. The judge had been entitled to conclude that C's close friendship and business relationship with H meant that throughout the entire period of criminality C knew exactly what H was doing. The jury's acquittal meant that the jury were unsure if C had committed those offences, but it did not mean that they were to be ignored. The judge had not gone behind the jury's verdict; he had made legitimate findings within the parameters of the evidence. (2) It was merely fortuitous that no loss had been caused to H and C's clients as they had been exposed to substantial risk. By virtue of the Criminal Justice Act 2003 s.143, the judge had to have regard not just to the harm caused but to the harm intended to be caused and to the harm that might have been foreseeably caused. As such, the judge was right to state that the crime was not a victimless one. H and C's clients were exposed to substantial risk and anxiety. (3) There had been a clear distinction in sentence between C and H. (4) Although the effect of custody on C's loved ones were all important points of mitigation which the judge had taken into account, they could not dictate the sentence. Unfortunate as those facts were, namely the absence of anyone to care for C's father and likelihood that C's partner might become homeless, they were a consequence of C's actions. (5) The passage of time had been as a result of C's denial of guilt. (6) The judge had made clear in his sentencing remarks why the offences were serious. It did not assist C to point to the different penalties to which he would have been exposed had he been convicted of other offences. The judge was entitled to conclude that nothing less than immediate custody was appropriate.

Appeal dismissed

Counsel:

For the appellant: A O'Mara

For the Crown: ZQC Johnson