Director of Public Prosecution's Reference (Number 5 of 2019) - Harrington Legen Jack
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2020] NICA 1 |
| Date | 08 January 2020 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2020] NICA 1
Ref:
STE11150
Judgment: approved by the Court for handing down
Delivered:
8/1/2020
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
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DIRECTOR OF PUBLIC PROSECUTION'S REFERENCE (Number 5 of 2019)
HARRINGTON LEGEN JACK
__________
Before: Morgan LCJ, Stephens LJ and McCloskey LJ
________
Stephens LJ (delivering the judgment of the court)
[1] Harrington Legen Jack (“the offender”) was sentenced by His Honour Judge
Finnegan QC at Belfast Crown Court on 25 October 2019 in respect of eight counts of
fraud by abuse of position in breach of section 4 of the Fraud Act 2006 which
offences were committed between 2 and 8 June 2012. The total amount defrauded
was £78,500. The sentences imposed were concurrent community service orders
amounting to 240 hours of community service together with a compensation order of
£14,000 initially in favour of an individual whom we anonymise as BS but then
amended so as to be in favour of Santander. The Director of Public Prosecutions
sought leave to refer the sentences to the Court of Appeal pursuant to section 36 of
the Criminal Justice Act 1988 on the grounds they were each unduly lenient. On
Monday 16 December 2019 at the hearing of the reference we granted leave and the
application proceeded on that date. On Friday 20 December 2019 we stated the
outcome of the application with reasons to follow which we now deliver.
Mr McDowell QC with Mr Henry appeared for the Director and Mr Duffy QC with
Mr Browne for the offender.
Background including the circumstances of the offending
[2] The offender, now 37 commenced employment with Santander on 9 January
2012 at its call centre in Belfast as a customer service adviser dealing with telephone
enquiries from Santander customers in relation to their bank accounts. In order to
respond to enquiries and to perform transactions at the direction of the customer s
the offender had online access to the customers’ Santander bank accounts.
[3] The offender resigned from his employment with Santander on 8 June 2012
which was the last day upon which he committed these offences. It is apparent that
he knew that the offences would be discovered so that he had to resign before that
occurred. Also it is clear that he deliberately committed the offences in such a way
2
that another employee whom we have anonymised as BS would be the prime
suspect.
[4] BS also commenced employment with Santander on 9 January 2012 as a
customer service adviser. She trained and worked alongside the offender until he
resigned.
[5] The customer service advisors are not restricted to individual computers or to
an individual work space in the Belfast call centre. They can login on various
computers but in order to do so they are req uired to use a password unique to that
employee together with a unique employee number. The unique employee number
and password is required every time an employee signs onto a computer and the
unique number is requ ired every time the employee conducts enquiries and
transactions on the computer system. All the enquiries and transactions on the
computer system are recorded. In this way there is not only a record of all the
enquiries and transactions on the computer system but also everything can be
attributed to a particular employee’s unique number and in that way to a particular
employee .
[6] The offender knew the unique number of BS which was only one digit apart
from his number. Also the offender knew BS’s password. In this way he had the
ability to log onto the computer system performing transactions in her name.
[7] In May and June 2012 the offender accessed the accounts of two Santander
customers without having spoken to either customer and without any valid business
or banking related reason for doing so. The purpose of doing so was to gain
knowledge of the balance on those customers’ accounts.
[8] On three different dates namely on 2, 7 and 8 June 2012 the offender logged
onto the computer network pretending to be BS using her password and her unique
number. He made a total of eight fraudulent transfers from the Santander bank
accounts of the two Santander customers to “mule” bank accounts from which the
monies were then withdrawn by the “mule” account holders . Those “mule” bank
accounts were not in the name of the offender and the withdrawals were not made
by him.
[9] Evidence from Santander was that BS was on leave on the 7 June 2012, the
second of the three dates when monies were transferred. Employees must use an ID
card to access the Belfast call centre and Santander were able to confirm that BS’s ID
card had not been used to enter the building on 7 June 2012 nor could she be seen on
the CCTV images for that day. Quite simply she was not at work and could not have
made any of the 7 June 2012 fraudulent transfers.
[10] Also Santander were able to confirm that the offender was working every day
there was a fraudulent transfer and they were able to identify that the offender had
logged on at a workstation neighbouring the computer from which each fraudulent
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Queen v Gerald O'Hara
...on a convicted Defendant’”. [14] This topic was further considered by this court in DPP’s Reference (No 5 of 2019): Harrington Legen Jack [2020] NICA 1, at [40] – [45]. There are two especially noteworthy principles to be distilled from these passages. The first is that in cases where a bre......
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R v Morgan & Others
...of time or delay between arrest and conviction has been dealt with in this jurisdiction in the case of DPP’s Reference (No 5 of 2019) [2020] NICA 1 at paragraphs 40-52. It is clear that this was a complex investigation involving the assessment of a large volume of material involving multipl......
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King v Qing Wen Lin, Long Quang Lin Lin Zheng, Zhu Lin & Yang Wu Chen
...themselves …. that sentencing is an art not a science.” [30] Taking his cue from R v Harrington Jack (DPP’s Reference No 5 of 2019) [2020] NICA 1, the Recorder formulated the following guidance, beginning at para [37], recommending the approach of: “… (identifying) a starting point based on......
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King v Adrian Kozak and Caolan Johnston
...was maintained up to the date of trial. [51] In R v Dunlop [2019] NICA 72 and in DPP Reference No 5 of 2019 Harrington Legen Jack [2020] NICA 1 the principles the court should apply when determining this question are set out and summarised at [46] of Jack: (i) The threshold of proving a bre......
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