R v Fortune Tofa

On 27th March 2025 in the Military Court Centre at Catterick before Assistant Judge Advocate General Smith, the Applicant was convicted by a military board of three counts of fraud, in the amounts of £1,800 (on charge 1), £300 (on charge 2) and £1,200 (on charge 3). The sums involved therefore totaled £3,200.

The brief facts were that records showed that soldiers being ‘discharged as of right’ were given early payments in cash, known as EPIC payments, and signed against their names for receipt of those payments. The cash had been paid to somebody because the books balanced. Thirteen soldiers gave evidence that they had not received the payments and had not signed for them. On examination, their signatures appeared to have been forged. The Applicant was in sole charge of the process, including the ordering of the cash, the issuing of the cash to soldiers and the supervision of their signatures in the correct place on the nominal roll.

The prosecution case was that the Applicant had identified soldiers who were leaving and who would not in fact be receiving EPIC payments, that he had forged their signatures to create a false record of payment to them, and that he had taken the money for himself, knowing that, because the soldiers had left, they were less likely to become aware that they were recorded as having received payments which they had in fact not received.

He now seeks leave to appeal against his convictions, following a refusal of leave by the single Judge.

On 20^th May 2025 the same Board, sitting with Assistant Judge Advocate General Smith, sentenced the Applicant, then aged 44, to 6 months’ imprisonment suspended for 12 months on each charge concurrently, with a requirement that he undertake 140 hours of unpaid work in the community. He was dismissed from service. He had served for over 21 years, including operational tours of duty in Afghanistan and Iraq, and he was 8 weeks short of retirement. The effect of his dismissal was to deprive him of a lump sum of £45,519 and an annual pension of £14,813. He remained entitled to a pension, but his pension entitlements were reduced by these amounts.

He now seeks leave (separately from his application for leave to appeal conviction) to appeal his sentence, following a refusal of leave by the single Judge.

Both applications have been very clearly and skillfully developed before us in writing and also by the Applicant appearing before us in person to make oral submissions today. He has made his points very well. We are grateful to him for his careful and respectful presentation of the case. At his trial he was represented by a barrister who took on the case without a fee a few days before it started.

Three grounds are advanced in support of the renewed application for leave to appeal the convictions.

Ground One is that the convictions rest on documentary evidence obtained from an unlawful search of service living accommodation. This evidence included the nominal rolls with the forged signatures, and other EPIC paperwork recovered from the financial systems administrator’s office and the regimental administration office, without a warrant. The Applicant argues that he often slept in those offices as well as working in them and that, consequently, a warrant should have been obtained because they were service living accommodation.

The powers of entry and search conferred by Section 83 of the Armed Forces Act 2006 require a warrant. However, Section 95 preserves the power of a service policeman or commanding officer without a warrant to enter and search or order the entry and search of premises:

“Which are occupied for the purposes of any of Her Majesty’s Forces to the extent that the premises do not constitute service living accommodation.”

The question is therefore now raised as to whether the offices, which were plainly occupied for the purposes of His Majesty’s forces, to any extent constituted service living accommodation.

Section 96(1) includes within the definition of service living accommodation any building or part of the building which is occupied for the purposes of any of Her Majesty’s Forces but is provided for the exclusive use of a person subject to service law, with or without members of his family, as living accommodation (see section 96(1)(a)). That was clearly not the case so far as the offices were concerned.

Section 96(1)(b) also includes in the definition of service living accommodation:

“…any other room, structure or area (whether on land or on a ship) which is occupied for the purposes of any of Her Majesty’s Forces and is used for the provision of sleeping accommodation for one or more persons [subject to service law].”

However, although it seems that the Applicant may have taken it upon himself to sleep in the offices occasionally, they were not provided to him as sleeping accommodation. It is not therefore arguable that they were service living accommodation within the meaning of the Act. Consequently, no warrant was required.

We also observed that this objection to the evidence was not taken at or before the trial, which is when it ought to have been taken, if it was to be taken at all. We recognise that the Applicant could not afford to pay a barrister, but he had a barrister without fee, who (from the transcript) represented him effectively and with a full mastery of the case.

Ground Two is that the prosecution was the product of a procedural irregularity, in that the referral decision statutorily reserved to the commanding officer by the Armed Forces Act 2006, was unlawfully displaced by the service police.

The charges against the Applicant were capable of being dealt with summarily, or of being referred to the Service Prosecuting Authority, or, of course, of not being proceeded with at all. After investigation, they were referred to the Applicant’s commanding officer, as required by Section 116 of the Act. Subsequently, they were referred by him to the Service Prosecuting Authority, which the commanding officer was empowered to do by Section 120 of the Act.

The argument is that his referral was taken for granted and pre-empted, and that he did not exercise an independent discretion; or, perhaps, make any decision at all.

However, we have examined the underlying documents. It is clear that the commanding officer’s role was recognised and that it was he who was expected to refer the charges. He did so. This can be seen from an email sent on his behalf by Major Goodbody on 16^th January 2024 which is at page V1-51 of the Military Case System. The decision was not taken away from him. It was his to make and he made it. Given the seriousness of the charges, in their factual context, it would have been surprising if the commanding officer had not referred them to the Service Prosecuting Authority. It is not surprising that he was expected to do so. He did not need personal knowledge of the facts to make this judgement. We do not think it is arguable that the process was conducted unlawfully.

Furthermore, this is another point which was not taken at trial. Had it been taken, it is inconceivable that there would have been a stay of proceedings or a finding of abuse of process, or any outcome other than the trial before a board which the charges warranted.

Ground Three is that the convictions are, in any event, unsafe, the case being wholly circumstantial, and the handwriting and other evidence being (it is said) incapable of safely supporting the inference that the Applicant forged signatures and dishonestly took cash.

This Ground correctly focuses on the key question under Section 12 of the Courts-Martial (Appeals) Act 1968 which provides that this Court will allow an appeal against conviction only if we think that the conviction is unsafe; and in any other case will dismiss it.

The Applicant points to the lack of handwriting expert evidence that the forged signatures were forged by him, and to the fact that no eyewitness to him forging signatures was produced, and no misappropriated funds were traced to him.

However, the case was proved, not by evidence that was lacking, but by the evidence which was produced. It is apparent from the closing speeches and the very full summing up of the Judge that the evidence against the Applicant, although circumstantial in the sense that no witness saw him forging a signature, was very strong. The thirteen soldiers were independent of each other, and all testified that they had not received EPIC payments or signed their names. There was no dispute that the cash had been paid to someone and, if it was not to them, it was to someone who was not entitled to it. There was no dispute that the signatures were on the record and, if they were not the signatures of the soldiers named on the roll, they had been forged by someone else. Some of the signatures contained errors which it was not likely that the person named would have made in respect of their own name and signature. The Applicant was in sole charge of the process, ordered the cash, and supervised the signatures. He was arguably the only person with a thorough knowledge of how a fraud of this nature might successfully be perpetrated, and he was certainly the person in the best position to carry it out.

The arguments in the Applicant’s favour were put to the Board, including what were said to be alternative explanations for the evidence and a challenge to the motives of the officer who had originally escalated the issue which led to the charges. It was for the Board to evaluate those arguments, and we are not at all persuaded that they were compelling. No other culprit and no innocent explanation was credibly suggested.

We have also considered complaints about disclosure which, however, do not, in our judgement, have substance or consequence. In other words, they do not make a difference to the weight of the evidence.

We have no doubt that the convictions are safe and that there is no arguable point of appeal. We therefore refuse leave to appeal the convictions.

Turning to the application for leave to appeal the sentence, two grounds are put forward. The first is that, because of the alleged usurpation of the commanding officer’s role in referring the case to the Director of Service Prosecutions, the sentence ought not to have exceeded the sentencing powers of the commanding officer. However, we have already considered and rejected the basis for this argument when refusing leave to appeal the convictions. In any event, this is not the sort of point which would ever have deprived the Board of its full sentencing powers.

The second ground relied upon is that the sentence was manifestly excessive and wrong in principle.

The reasons for sentence given by the Judge Advocate on behalf of the Board included the observation:

“You do not need to serve an immediate sentence of imprisonment; it is not in the public interest to do that.”

It is argued that this was inconsistent with the imposition of a custodial sentence, albeit one that was suspended. It is also argued that, since the total sum involved was £3,200, a sentence of 6 months’ imprisonment (suspended) and 140 hours of unpaid work was disproportionate when accompanied by dismissal which deprived the Applicant of such significant pension benefits.

It is argued that the aggregate of the suspended sentence, the unpaid work requirement and the financial consequences of the dismissal was (contrary to the principle of totality) not a sentence just and proportionate to the offending as a whole.

It is also said that mitigation was not given sufficient weight, which included his effective good character and unblemished service record, the impact of his dismissal (not least on his pension) and the personal circumstances of his wife and daughter.

We have considered these arguments.

The reasons for sentence carefully and correctly applied the relevant sentencing guideline when placing the offending in the high culpability but category 5 bracket, based on the amounts (which exceeded the bottom category 5 indicative amount) and abuse of a position of trust and responsibility, which indicated high culpability. The Board avoided double counting when not identifying any additional service factors relevant to harm or culpability. In the Applicant’s favour, they discounted matters which might have affected the Applicant’s good character and made no adjustments for particular vulnerability on the victim’s side. From this, they derived a Guideline starting point of 36 weeks’ imprisonment in a range between a high-level community order to 18 months’ custody if dealing with a civilian.

They decided no movement from the starting point was required by aggravating or mitigating features. They then followed the Judge Advocate General’s stepped approach by turning to the service facts, but they avoided double counting by not treating any of those facts as requiring any increase in the sentence, because they had already been reflected in their guideline categorisation. They quoted the Judge Advocate General’s guideline stating:

“Dishonesty is not consistent with service in the Armed Forces, because it is corrosive to unit cohesiveness and morale and breaches the bond of trust which exists between service personnel. Dismissal will be appropriate in all but the most minor cases.”

The Board had received a Victim Personal Statement which confirmed that impact in this case.

The Reasons for Sentence specifically considered the factors identified in the Imposition Guideline when deciding to suspend the sentence. It was in this context that the reasons included the remarks said to have been inconsistent with imposition of even a suspended custodial sentence. The quotation is not, “You do not need to serve a sentence of imprisonment”, but, “You do not need to serve an immediate sentence of imprisonment”. There was no inconsistency in that.

The Reasons had regard to the principle of totality. They emphasised: “We must, by law, take into account the financial implications of dismissal upon you”, and recognised the significant financial effect, on account of the pension implications, of a dismissal so close to a point where enhanced pension benefits would have been earned. They said “We very much take that into account”.

The proposal, which the Board considered but did not adopt, that the Applicant should be demoted, rather than dismissed, was not realistic on the facts of this case, where there had been a serious breach of trust, significant impact (reflected in the Victim Personal Statement) and no remorse, in that the Applicant did not admit what he had done.

The Reasons did consider whether dismissal was disproportionate or rendered their proposed sentence disproportionate as a whole. They reasonably argued that it would be wrong to spare a senior and long-serving staff sergeant dismissal when a more junior soldier, with less service, would not be spared dismissal. It is not arguable that this reasoning was wrong in principle.

This was serious offending, committed in breach of trust and involving forgery of signatures and more than one charge. The financial impact of the dismissal was rightly and carefully taken into account, but it was not realistic to suggest that it should have allowed the Applicant to escape any other punishment. The sentence of imprisonment was of a suitable length and was suspended. The 140 hours of unpaid work were below the middle of the available range of 60 to 300 hours. It is not arguable that the sentence passed was manifestly excessive.

We must therefore refuse leave to appeal the sentence as well as the convictions.