On 25th November 2020, following a contested confiscation trial from which the defendant wilfully absented himself, a confiscation order of £343,147.00 was made against Gerard Lawless and a default sentence of 2.5 years imposed. The defendant was given 3 months to satisfy the confiscation order.
Gerard Lawless was unanimously convicted of fraud by abuse of position (contrary to S.1 and S.4 of the Fraud Act 2006) and Theft, (contrary to S.1 of the Theft Act 1968) at St Albans Crown Court on 12th October 2018. He received a concurrent sentence on both counts of 7.5 and 5-years imprisonment and was disqualified from acting as a Director for 10 years.
Hertfordshire Police, to whom this matter was initially referred by Action Fraud in 2015, cited difficulties committing resources to conduct a full investigation at the time. Edmonds Marshall McMahon (“EMM”) conducted a criminal investigation and prosecution on behalf of Hunter Worldwide Publishing Limited (“Hunter”) thereafter resulting in the conviction of the Defendant.
A private-state partnership
Further to the conviction of the Defendant, EMM on behalf of Hunter, approached Hertfordshire Police for assistance with the confiscation investigation.
EMM in partnership with the Regional Asset Recovery Team (RART), Eastern Region Special Operations Unit (ERSOU) conducted a joint confiscation investigation and proceedings in a successful example of a private-state partnership in asset recovery.
By working with an appropriate officer, as defined by the Proceeds of Crime Act 2002 (s.378(1)), RART was able to conduct a full confiscation investigation on behalf of the private prosecutor to identify the value, extent and whereabouts of the assets of the defendant in addition to the assets of third party tainted gift recipients to the value of the gift received, for the satisfaction of any compensation and/or confiscation order.
Summary of case
Between 2003-2013, Gerard Lawless stole in excess of £1.5 million from a group of companies owned by Vincent Tickel to fund a lavish lifestyle for himself and his family, causing a substantial loss to the companies.
Mr Lawless misappropriated monies from the companies by transferring money to his and his wife’s personal accounts, cashing company cheques to his personal account and using the company credit card for personal spending. Expenditure on the company credit card included purchasing golf trips abroad, expensive champagne and extravagant holidays for his family and friends. The defendant’s wife, Angela Forde-Lawless, received £318k of unauthorised payments from the company, including monthly payments made directly to her bank account for which she provided no consideration. The extent of Mr Lawless’ spending contributed to one of the companies having to enter into voluntary liquidation in 2013. The scale of dishonesty displayed by Mr Lawless was described as “staggering in every aspect” by the judge when passing sentence.
Tainted gifts
The defendant sort to argue that it would be disproportionate to include tainted gifts as part of the defendant’s available assets on the basis that they are now irrecoverable; the money was spent as part of the lavish lifestyle maintained by the Lawless family further to the defendant’s criminality.
The prosecutor relied on the tainted gifts regime as held in Regina v Beverley Johnson [2016] EWCA Crim 10 (para 26):
The statutory policy is to apply pressure to those who have dissipated (or more usually laundered) their assets during a period when they were benefiting from crime. The aim is [to] coerce them into making good the losses they have caused by all means at their disposal. If they were always able to defeat confiscation proceedings by relying [on] gifts [or] assets which cannot be recovered this would undermine the efficacy of the scheme. Such transactions may be difficult to investigate. The recovery of gifts by legal proceedings against the recipient is a matter which is unlikely to be capable of easy determination in confiscation proceedings and may raise complex issues of civil law. Legal proceedings against the recipient may only rarely actually be required if the offender faces a term of imprisonment unless the gift is returned by the recipient. The recipient will return the value of the “gift”. Protestations about the difficulty of proceedings which will never happen should carry little weight. This is why the tainted gifts regime is as it is.
Mr Recorder Bridge found that the defendant/his witnesses had failed to provide clear, cogent and unassailable evidence to support their assertions and was satisfied that it would not be disproportionate to include tainted gifts made to them as available assets of the defendant.
Compensation
The confiscation order is to be paid in its entirety to Hunter in compensation[1].
In the news: https://www.bbc.co.uk/news/uk-england-beds-bucks-herts-45889102
Marie-Claire Amuah
[1] pursuant to section 130 Powers of Criminal Court (Sentencing) Act 2000
