Legal Developments 2010

Legal Developments 2010

Developments in the Law: 2010
(Serious Crime)

Useful Cases and Materials

  • Note: The Coroners and Justice Act 2009 (Commencement No. 4, Transitional and Saving Provisions) Order 2010: SI 2010 No.816 brings a large number of provisions of the CAJA 2009 into force on various dates. For example (6th April 2010), possession of prohibited images of children in England and Wales and Northern Ireland (ss 62-68, schd. 13); certain indecent pseudo-photographs of a child (s 69); genocide, crimes against humanity and war crimes in the International Criminal Court Act 2001 (s 70); offence of slavery, servitude and forced or compulsory labour in England and Wales and Northern Ireland (s71); provisions amending the SOCPA 2005 (s 113); the Sentencing Council for England and Wales (ss 118-136, schd15); the retention of knives surrendered to, or seized by, a court security officer (ss146 and 147); investigation anonymity orders (ss 74-83, 85). On the 4th October 2010, amendments to the Homicide Act 1957 re the partial defence to murder of diminished responsibility in England and Wales (s 52); abolition of provocation and the new partial defence of loss of control (ss 54-56); amendments to the Infanticide Act 1938 (s 57). Link
  • Note: The Coroners and Justice Act 2009 (Commencement No. 3 and Transitional Provision) Order 2010: SI 2010 No.145 brings a large number of provisions of the CAJA 2009 into force from the 1st February 2010, including s.35 (Chief Coroner and Deputy Chief Coroners); ss.59 to 61(encouraging or assisting suicide), s.72 (conspiracy); s.112 (admissibility of evidence of previous complaints); s.114 and 115 (bail); ss.140-141 (appeals against confiscation orders); s.174 (data-sharing code of practice); and various schedules (in whole or in part). Link
  • Note: The Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2010: 2010 No. 197 raises the normal sentencing starting point to 25 years’ imprisonment for murder where D (aged 18 or over) takes “a knife or other weapon to the scene of the crime with the intention of using it to commit any offence or to use it as a weapon and does use it in committing the murder” (Explanatory Note). Link

Cases

  • White and others [2010] EWCA Crim 978. [transcript]
    The case is essential reading in connection with the making of confiscation orders that involve the smuggling of tobacco and the evasion of duty and/or VAT payable thereon. The first step is to determine whether the 1992 Regs [SI 1992/3135] or the 2001 Regs [SI 2001/1712] apply. Under the 1992 Regs, the person who is principally liable to pay duty is the “importer” (see Reg.5(9)). Under the 2001 regs, that person is the one who is “holding” the “tobacco products” at the “excise duty point” (reg.13). But, other persons are “jointly and severally liable to pay duty”. Under the 1992 regs, these are persons specified in reg.5(3)(a)-(f). Under the 2001 regs, the persons are those specified in reg 13(3). In each instance, the persons specified include the person “who causes or has caused the imported goods” (1992, reg.5(3)(f)), or “who caused the tobacco products” (2001, reg.13(3)(e)), “to reach the excise duty point“.
    In the interests of clarity, and in an attempt to avoid incompatibility between the Regs and the EC Directive 92/12/EC [one may query the degree of harmonisation actually required], the Court held that the duty is payable (per Art.7(3)) from: (a) the person making the delivery in the UK for commercial purposes in the UK; or (b) the person holding the products in the UK with the intention of delivering them there for commercial purposes in the UK; or (c) the person in the UK receiving the products for use for commercial purposes in the UK by a trader; or (d) the trader who in the UK is using the goods for commercial purposes there [see paras 76 and 93 of the judgment]. Thus, the “importer” (1992), or the person “holding” the tobacco (2001) must come within (b), but note that the excise goods “are held for commercial purposes in the UK at the point of ‘importation’ in the UK” [judgment, para.74]. Those person who “cause“/”caused” the products to reach the excise duty point should fall within (a)-(d): but note the observations of Toulson LJ in Mitchell [2009] EWCA Crim 214, cited at para.113 in White and oths. The “consignee” of the excise goods (1992) will fall within (c).
    NOTE 1: the “excise duty point” on imported goods is the moment that the tobacco enters the limits of a port of the UK [judgment, para.57]. NOTE 2: Excise duty is not the same as VAT payable by “taxable persons”: see s.3(1) VAT Act 1994. NOTE 3: The value of the tobacco itself might be a ‘benefit’ under POCA 2002. NOTE 4: in relation to vehicle drivers, see paras.188-190 in the judgment. NOTE 5: the case does not decide whether the Directive would permit recovery of more than the excise duty due in respect of the goods [see para.82].

  • R v Nguyen [2010] EWCA Crim 2658. N’s appeal against his conviction for being concerned in the production of a controlled drug, contrary to s.4(2)(b), MDA 1971, was dismissed. N ran a hydroponics shop which, to his knowledge, was supplying the materials necessary to set up and run cannabis factories. That was his only involvement in the production of cannabis. In a short judgment, the Court saw no justification for distinguishing the instant case from Jackman 76 Cr App R 223 where it was held that the act of “concerning” can either take place before or after the substantive offence. As the Court observed, “[t]hat case concerned a charge of being concerned in the importation of drugs, and the court said that a person who is concerned in the importation may play his part before or after that moment”. Although it is true that offences of “being concerned” can be construed in terms that give them a wide reach, it was also open to the court (it is respectfully submitted) to have limited the reach of s.4(2)(b) MDA 1971. Arguably, on the facts of Nguyen, a charge of ‘production’, put on an accessorial basis, was viable given that an act of production had taken place. The impact of this decision for those engaged in some drug harm-reduction schemes, is debatable and a matter of concern. Regulation 6A of the Misuse of Drugs Regulations 2001, exempts from s.9A MDA (drug kits) the provision of swabs, utensils for the preparation of a controlled drug (e.g. spoons), citric acid, filters, and ampoules of water for injection, by the following persons (i) medical practitioners; (ii) pharmacists; and (iii) persons employed or engaged in the lawful provision of drug treatment services (e.g. nurses and needle exchange personnel). Converting a drug from (e.g.) base to a salt (and hence citric acid) has been held to be an act of “production”. Where do those practitioners now stand if they know that the article supplied will be used for ‘production’? There may be some comfort in the current CPS charging standards that say “You should charge…being concerned in the production of a controlled drug under s.4(2)(b) when there is evidence of knowledge of commercial production and indirect participation in that production”. The key word is “commercial”.
  • Constantine [2010] EWCA Crim 2406.[transcript]
    With regards to an application that the defendant pay the costs of confiscation proceedings, the Court of Appeal is satisfied that the correct interpretation of POCA 2002, s.13(2) and 13(3)(a), is that the Crown Court must take account of a confiscation order before making an order “involving payment by the defendant” of costs relating to those proceedings.

  • Aklark [2010] EWCA Crim 2342.
    The case is of interest to the extent that the Court of Appeal expressed the “tentative view” that the procedure laid down in new s.11(3A) of the Criminal Appeal Act 1968 has nothing to do with the postponement provisions enacted under s.14 of the POCA 2002, and the time limits imposed on the Crown Court for the purpose of making determinations under the 2002 Act. [Note that s.11(3A) of the 1968 Act was inserted by s.140 of the Coroners and Justice Act 2009 which came into force on February 1, 2010 (see the Coroners and Justice Act 2009 (Commencement No.3 and Transitional Provision) Order 2010 (SI 2010/145)].

  • Zahid [2010] EWCA Crim 2158.[transcript]
    The Court of Appeal saw no reason to distinguish several earlier decisions of that Court which held that offences under s.1 and s.5 of the Firearms Act 1968, impose strict liability, and that there is no scope for a defence based upon passages in the speeches of their Lordships in Warner v Commissioner of Police of the Metropolis [1969] 2 AC 256; and see Deyemi [2008] 1 Cr.App.R.25. In as much as a passage in the judgment of the Court in R v Vann and Davis [1996] Crim LR 52 sought to suggest that the defendant may have a defence if he had a genuine belief that the article in his possession was something other than a firearm, that passage was expressly disapproved by the Court of Appeal in Deyemi. There is no distinction between cases where D believes that the contents of a container (e.g. a bag) were something innocent as opposed to not knowing what the contents were: Waller [1991] Crim LR 38 considered.

  • Shabbir [2010] EWCA Crim 2010.
    A confiscation order was quashed by the Court of Appeal (and a rehearing ordered under s.11(3A) of the Criminal Appeal Act 1968) in circumstances where no specific finding had been made in relation to the history of the payment made by S as a deposit towards the purchase of a house. [Note that s.11(3A) of the 1968 Act was inserted by s.140 of the Coroners and Justice Act 2009 which came into force on February 1, 2010 (see the Coroners and Justice Act 2009 (Commencement No.3 and Transitional Provision) Order 2010 (SI 2010/145)].

  • Varsani [2010] EWCA Crim 1938.[transcript]
    For the purposes of s.5(1) of the Tobacco Products Duty Act 1979, the expression “cigarettes of that description” includes both “genuine goods and counterfeit goods of substantially the same type made up to resemble them” (per Rafferty J, para.20). For the purposes of Part 2 of the POCA 2002, the value of a defendant’s benefit in respect of the duty chargeable, but evaded, on counterfeit cigarettes, is to be calculated on that basis.

  • Ward [2010] EWCA Crim 1932.[transcript]
    It is not open to a defendant to appeal to the Court of Appeal (Criminal Division) a decision made by the judge pursuant to POCA 2002, s.23. An order varying a confiscation order made under s. 21, 22 or 29 of the 2002 Act is included in the definition of “sentence” as it appears in the Criminal Appeal Act 1968, s.50, but an order for variation of a confiscation order made under s.23 of the POCA 2002 is not.

  • McCormick [2010] EWCA Crim 1556.
    In upholding a confiscation order made in M’s absence, the Court of Appeal said that “absconding” is not the same as simply “being absent”. M had merely decided not to turn up at the hearing, but he was represented by counsel. No application had been made by either party to the proceedings for an adjournment. A court should be cautious in continuing criminal proceedings in the absence of a defendant.

  • Dimmock [2010] EWCA Crim 1440.
    A schedule produced by the customs authorities in Germany suggesting the smuggled shipments of cigarettes into the UK, was admissible in evidence in confiscation proceedings. The judge is not bound by strict rules of criminal evidence, and it was for him to decide what weight to attach to the material placed before him: Silcock and Levin [2004] Cr App R (S) 61, considered.

  • Aspinwell [2010] EWCA Crim 1294.
    The Court of Appeal rejected the argument that the term of imprisonment imposed on A, in default of payment of a confiscation order, was inconsistent with the earlier determination by the Court of Appeal on the successful appeal against sentence that it would not be appropriate to send A to prison on the grounds of his ill-health. A defaulter is not compelled to go back to prison: it is his own choice (see, Price [2009] EWCA Crim 2918).

  • Del Basso [2010] EWCA Crim 1119.[transcript]
    The appellants operated a ‘park and ride’ business (as a parking association) but they failed to comply with an enforcement notice contrary to s.179(1) and (2) of the Town and Country Planning Act 1990. In confiscation proceedings, and on appeal, the case proceeded on the basis that the ‘park and ride’ operation was criminally unlawful from the moment that the enforcement notice became effective. The Court rejected the contention that Part 2 of the POCA permitted the court to look at what the appellants ‘actually made’ net of all expenses: the reverse is the case (see the Endnote to R v May [2008] UKHL 28, [2008] 1 AC 1028. R v Seager, R v Blatch, [2010] 1 WLR 815 emphasised the need to focus on the property obtained by the offender (in place of the causation test which had been undermined in Jennings). What happens to that benefit after it has been obtained (for example, how it might have been spent) forms no part of the statutory test.

  • Modjiri [2010] EWCA Crim 829.[transcript]
    Several useful statements of principle, and observations, were made by the Court. First (leaving aside real estate investment trusts, which are formally constituted investment vehicles) although it would be difficult to sell a part-beneficial interest in a flat or house, or to borrow moneys from a bank or other lending institution on the security of such a beneficial interest (because there is no market in such interests), the property will nonetheless have a market value. Unless the trustees agree to the sale of the property, the beneficiary cannot realise the value of his interest. The same is true of property that is vested in joint names on trust for the joint owners beneficially. Unless the joint owners agree, or an order is obtained for the sale of the property under s.14 of the Trusts of Land and Appointment of Trustees Act 1996, the property cannot be sold. The fact that the beneficiaries have expressly agreed that a property is not to be sold without their unanimous agreement is a factor that the court will take into account on an application under s.14, but it does not preclude the court from ordering a sale in appropriate circumstances [para.16]. Secondly, numerous confiscation orders have been made on the assumption that the market value of a part-beneficial interest in real property is that proportion of the whole value that equates to the extent of the part-beneficial interest (e.g. Davies [2004] EWCA Crim 3380, and Ahmed and Qureshi [2005] 1 WLR 122). Thirdly, the wording of the POCA 2002, s.79(3), is not crystal clear, but the effect of the subsection is that only the value of the interest is taken into account: otherwise the subsection would be otiose. The equivalent provisions of the earlier legislation were clearer (i.e. s.74(4), CJA 1988, and s.7(1) of the DTA 1994). Section 79(3) of POCA is concerned with the realisation of property as well as its valuation. It does not require the court to assume that a beneficial interest has to be sold separately. The court must proceed on the basis that the defendant can obtain an order under the TLATA 1996 for the sale of the property as a whole, and that he will, on a sale, receive his proportion of the proceeds of sale. Fourthly, the possibility that the defendant will not obtain an order for the sale of the property as a whole does not affect or diminish its market value (although the costs of obtaining the order may be relevant). Fifthly, property does not have a market value of nil because a beneficial owner may not readily be able to obtain an order for its sale in order to realise its value. This is to confuse market value (for the purposes of a valuation under POCA) with an individual’s personal difficulty in e.g. putting the property on the market. The same applies to the market value of a beneficial interest in the property.

  • Syed and another v City of Westminster Magistrates Court [2010] EWHC 1617 (Admin).[transcript]
    S and F each succeeded in their application for judicial review on the grounds that the delay on the part of the Crown Prosecution Service in enforcing the confiscation orders against them was unreasonable, and infringed their right (Art.6.1, ECHR) to have the enforcement proceedings brought against them within a reasonable time if the magistrates’ court was to be asked to activate the sentences of imprisonment passed in default of payment many years after S and F had served the sentences which had been imposed for their offences.

  • In the Matter of Re L [2010] EWHC 1531 (Admin).[transcript]
    Where the value of a gift has been included in the amount of a confiscation order, it is “not open to a defendant later to seek a certificate of inadequacy on the basis that he cannot realise or recover that gift. It is implicit in the statutory scheme that, where a defendant is unable to satisfy an order including the value of such a gift because he cannot himself realise that gift, the confiscation order will remain unsatisfied and the ‘realisable property’ (which includes the gift in the hands of the donee) will not be inadequate for the purposes of [the DTA 1994, s.17]” (per Hickinbottom J). It is submitted that these principles hold true in relation to confiscation orders made under Part VI of the CJA 1988, and Part 2 of the POCA 2002. The case also usefully illustrates the principles to be applied where D advances money to a third party that enables the latter to purchase property that is registered in that party’s sole name.

  • In Re S [2010] EWHC 917 (Admin).
    S, the wife of the defendant, failed in her application under s.77(7) of the CJA 1988 to vary a restraint order for the release of funds to pay her reasonable legal expenses to make an application to discharge the restraint order. The application was made by a third party, not by a defendant, in a situation where there are no outstanding appeals either against conviction or against the confiscation order, and in circumstances where funds were restrained to enable the confiscation order to be enforced: “[t]here would have to be very strong reasons to permit the release of funds to a third party in that post confiscation situation” (per Sir Michael Harrison).

  • SOCA v Perry [2010] EWCA Civ 907.[transcript]
    An appeal against the judgment of Foskett J in SOCA v Perry [2010] 1 WLR 910, was dismissed (by a majority, Richards LJ dissenting). A disclosure order made pursuant to s.357 of POCA does not of itself order anyone to disclose anything. Rather it confers authority on an appropriate officer, by notice in writing, to require persons to answer questions, provide information or produce documents, as the case may be. Once made, the order can be used by the officer to pursue the investigation without need for further recourse to the court (per Carnwath LJ, para.25). Carnwath LJ remarked that “some limitation on the extra-territorial scope of a disclosure order must be implied” [39] but the court did not specify what those limits are. However, “[at] the time of making the order, the court needs to know sufficient about the expected lines of inquiry to satisfy itself that the information sought is likely to be “of substantial value” to the investigation and in the public interest. But [POCA 2002, s.357] gives it no control over the persons on whom notices are to be served, nor of the directions of inquiry which SOCA may decide to pursue under it. I see no basis for reading into the section a requirement for SOCA to return to court as soon as its inquiries lead it to a foreign source of information. If that is not a requirement for the initial order, it is hard to see why it would be appropriate for the court to introduce it by a later variation, on the application of a particular foreign recipient. If the disclosure order itself is valid, and the notice is reasonably directed to obtaining information under it, it is difficult to see what legal grounds there would be for variation or discharge.” (per Carnwath LJ, para.44).

  • Gale v SOCA [2010] EWCA Civ 759.[transcript]
    A recovery order was made pursuant to Part 5 of the POCA 2002, against DG and his wife TG. At an earlier hearing, an Interim Receiving Order was made under which an insolvency practitioner was appointed as Interim Receiver. The Part V claim was not statute-barred as it was for the appellants to establish the facts necessary to make out a limitation defence, in particular a link with pre-limitation property, and they had failed to do so. The principal question under the Limitation Act 1980, s. 27A, is not whether the relevant authorities had the makings of a cause of action, but when the “cause of action” first accrued in respect of the property sought to be recovered. Until that issue is resolved in a respondents’ favour, the matters specified in s. 32 of the 1980 Act do not arise. The standard of proof to be applied is the civil standard. Section 241(3) of the POCA 2002 refers expressly to “matters alleged to constitute unlawful conduct”, which are to be decided “on a balance of probabilities”. That, in the view of the Court, is expressed “in terms too clear to admit of any equivalent reinterpretation” [per Carnwath LJ, para.42]: R v Briggs Price [2009] 1 AC 1026, considered and distinguished. Part V of the 2002 Act is not necessarily linked to criminal proceedings of any kind (see Butler v UK (2002), relating to the separate forfeiture regime of Part II of the 1994 Act). The purpose is the seizure of property, not the conviction of any individual, and accordingly there is no reason to apply “article 6 under its criminal head” [para.44]. On the issue of costs, the Court could see no reason why costs which are costs of the receivership may not also properly be regarded as costs of the civil recovery proceedings, to the extent that they represent the cost to SOCA of obtaining and presenting the evidence to prove the agency’s case. Accordingly, the receiver’s report and the investigations which lead to it fall under that category, and the cost to SOCA of their work should properly be regarded as costs which the court may order the respondent to pay [paras.125-126].

  • Larkfield Ltd v RCPO [2010] EWCA Civ 521.[transcript]
    Although para 18 of the judgment of His Honour Judge MacKie QC, at first instance ([2009] EWHC 1826 (QB)), was approved in R v Modjiri [2010] EWCA Crim 829 (Stanley Burnton LJ, Davis J and HH Judge Roberts QC), Stanley Burnton LJ simply said “We agree”, without any further comment or elaboration. Judge MacKie QC stated “Once assets have been identified as relevant realisable property they may be recovered, subject to the protection afforded by ss. 80(8) and 82(4). They may be recovered from any trust or company irrespective of any legal obstacles or protections for the direct or indirect benefit of the Defendant which would otherwise arise under company or trust law”. The Court of Appeal did not regard the citation of para.18 to be any confirmation that, when identifying realisable property for the purposes of a confiscation order, anything other than conventional property principles are to be applied save where statute clearly provides otherwise

  • CPS v Neish [2010] EWCA Crim 1011 [transcript]. The CACD allowed the prosecutor’s appeal in circumstances where the judge ruled that he had no jurisdiction to continue confiscation proceedings. Within the two year period (POCA 2002) the judge was unable to sit on a fixed date to hear the proceedings. He instructed the listing officer to remove the case from the list and to relist it before him on a date convenient to both advocates. This was done. In the words of the Court, “Whether it was described as an adjournment or a re-listing, in our judgment a decision to put the hearing back to a later date constituted a postponement. It was effected by the judge giving instructions to the listing officer and the listing officer carrying out his instruction. This culminated in the new date notified to the parties. That process, taken as a whole, constituted an extension of the postponement for the specified period to the fresh hearing date. All was effected well within the 2 year ‘permitted’ period defined in section 14(5).” [para.11]. The court added that “Whether or not the postponement process arises from an application by one or other or both parties, the judge must first decide whether to postpone them, then put in hand the arrangements for a fresh date for the proceedings, and then fix that date. In our judgment it makes no difference if the listing officer fixes the date without obtaining further express approval from the judge. The re-listing is still consequent on and forms part of an order made by the court.” [para.12]. In other words, this was not an instance where, for example, the list officer, acting administratively, and without the matter having been considered by a judge, removes the case from the list and then relists it.
  • R v Waya [2010] EWCA Crim 412 transcript]. Despite the detail, necessarily set out in the judgment, the principles in this confiscation case are clear. W, using clean funds of £310K bought a house worth £775K. The balance of £465K was obtained (by deception) by way of mortgage. W remortgaged the house for £838,943. The first mortgage was redeemed. By the date of confiscation proceedings the house was worth £1.85M. The judge erred in calculating the benefit as £1.85M less £310K (£1.54M). The correct calculation was 60% of £1.85M = £1.11M. This is because the proportion of clean funds, to tainted funds, when W originally bought the house, was £465K/£775K * 100 = 60%. The house had increased in value and therefore the value of the benefit obtained by W fell to be assessed under s.80(3)(b) and (c) of POCA 2002. It is submitted that the decision is plainly right: see Walls [2002] EWCA Crim 2456, Nadarajah [2007] EWCA Crim 2688, and Roach [2008] EWCA Crim 2649. It is further submitted that there was no room for the further argument that W never obtained an interest in the funds that passed through his solicitor’s account but only in the property that was acquired in consequence of the mortgage arrangement [18]: see Ward [2008] EWCA Crim 2955 (para.21), and consider Olupitan v ARA [2008] EWCA Civ 104.
  • R v Anderson [2010] EWCA Crim 615 [transcript]. This case usefully illustrates the position in confiscation proceedings where there is no evidence that enables the court to decide whether the proceeds of criminal conduct had been obtained jointly (and see Gibbons [2003] 2 Cr App R (S) 169). But, the case is more interesting in relation to the “available amount” where property is held on trust. On the facts in Anderson, a house (£295,000), was purchased by way of a mortgage/loan of £100,000 to A and Mrs Y, and by a payment by Mrs Y of £195,000 on behalf of herself and her children. A trust deed recited the intention of the parties that the proceeds of sale of another property should be used by A to repay the loan of £100,000, and that until that happened Mrs Y and her two children should have 33.3% each of the first mentioned property (the house). When the repayment was made by A, then he was to have 35%, and the others 21.66% each. These were defined as “the relevant proportions”. In the event, A did not use the proceeds of the sale of the second property to repay the loan. Accordingly, A never got his 35% interest in the proceeds of sale of the house.
  • R v Kirman [2010] EWCA Crim 614 [transcript]. This is another case where the appellant contended that the value of a confiscation order was inconsistent with the factual basis on which he had been sentenced. The Court remarked (a) that the acceptance by the Crown of a plea of guilty tendered on a particular basis does not of itself mean that in subsequent confiscation proceedings the issue cannot be reconsidered. A plea of guilty may be acceptable on a particular basis because it is recognised that it would be difficult or impossible to prove to the criminal standard that the defendant’s culpability was greater than indicated by the terms of the plea. But in confiscation proceedings the burden and standard of proof differ [para.7]; (b) It is important that the Crown should make it clear to a defendant whether or not his involvement in the offending asserted by his plea is accepted for all purposes [8]. (c) If the Crown accepts the basis of plea without qualification, in subsequent confiscation proceedings the court may well regard an attempt to go behind the acceptance as establishing a serious risk of injustice. This was the position in Lunnon [2005] 1 Cr App R (S) 24 [8]; (d) the court will not, save in exceptional circumstances, go behind the consent even if it is subsequently asserted that it was based on erroneous advice. There may be other remedies available to the defendant if he can show that there was negligence [15].
  • R v Greaves [2010] EWCA Crim 709 [transcript]. For the purpose of sentencing, where D faces charges of money laundering, and anterior offences, the Court gave the following guidance: (a) Offences contrary to ss 327-329 POCA 2002, are separate, “free-standing”, offences to the offences or offences which give rise to the criminal property with which the POCA is concerned; (b) Where the offender responsible for the primary crime is not the offender guilty of the POCA offence, the position is more straight forward than when they are the same; (c) Where the offenders are one and the same, if the conduct involved in the POCA offence in reality adds nothing to the culpability of the conduct involved in primary offence, there should be no additional penalty. A person should not be punished twice for the same conduct. That can be achieved either by imposing ‘no separate penalty’ on the POCA offence or by a concurrent sentence where the primary sentence is imprisonment; (d) Where conduct involved in a POCA offence does add to the culpability of the conduct involved in the primary offence an additional penalty is appropriate: see Brown [2006] EWCA Crim 1996, and Linegar EWCA Crim 648; (e) Where the primary offence has a maximum sentence, that is the maximum which Parliament has thought appropriate for conduct constituting the offence. In a case where the POCA offence does not add to the culpability of the conduct involved in the primary offence, there should not be a consecutive sentence on the latter on the ground that the maximum permitted on the primary offence is too low. Any difficulty posed by a low maximum for the primary offence may possibly be avoided if it is foreseen by the prosecution; (f) Where the conduct involved in the POCA offence does add to the culpability of the conduct involved in the primary offence, the maximum sentence permitted on the primary offence may be relevant to the sentence on the POCA offence because the seriousness of the primary offence reflects on the seriousness of the laundering: see, e.g., Greenwood [1995] 15 Cr App R(S) 614, and Basra [2002] 2 Cr App R(S)100. But it does not as a matter of principle provide a limit: see Linegar. If the POCA offence merits it, the sentence for it may add to that for the primary offence bringing it above the maximum for the latter, and it may if appropriate itself exceed the maximum on the latter: see Linegar; (g) The court did not think that is necessary for the POCA offence to have a different gravamen to that of the primary offence. The court preferred to say that the conduct involved in the former must add to the culpability of the conduct involved in the latter. Put shortly, there must be “something more”. The offender is not to be sentenced twice for the same conduct.
  • R v Berry and Crisp [2010] EWCA Crim 355 [transcript]. This case illustrates the relationship between confiscation orders made under Part 2 of POCA 2002, and cash forfeiture orders made under Part 5 of the Act. B pleaded guilty to being knowingly concerned in the evasion of duty on the cigarettes and tobacco seized. £21,089 in cash was seized at B’s home and detained under s 294 of POCA 2002. B had assets that exceeded the value of the benefit from his “particular criminal conduct”. B argued, in confiscation proceedings, that HM Customs “as agent for the victim of this offending (the Crown) has [forfeited] £21,085” and that, by reason of s.6(6) POCA, the duty of the court to (a) decide the recoverable amount, and (b) make a confiscation order requiring him to pay that amount, became a “power” to do so. Section 6(6) is engaged if the court “believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct”. The Court of Appeal held that the argument was devoid of merit because the forfeiture proceedings were not “proceedings in respect of loss sustained in connection with the conduct”. The loss sustained by Customs and Excise was the evasion of excise duty and VAT on the contraband cigarettes. By applying to forfeit the cash found at each respondent’s home, the C&E were not seeking to recoup any part of that loss. Nor was there any double counting in the state pursuing both a confiscation claim made under Part 2 of the Act in respect of the avoidance of duty, and forfeiture proceedings under Part 5 of the Act in respect of the cash found in each respondent’s home. The Court said that “Any argument about abuse of process was similarly unfounded. If the cash was directly connected with the offences to which the respondents pleaded guilty, then the situation would be analogous to the example given by Lord Rodger of the smuggler who succeeds in selling the smuggled goods. His benefit will consist both a pecuniary advantage equal to the value of the duty evaded, and also property in the form of sales receipts”. It is important to note that the seized monies had not been treated as a benefit from criminal conduct under s.76(4) of POCA 2002. It is respectfully submitted that this decision ought not to be taken as excluding the possibility that there can be circumstances in which it would be an abuse of the process of the court to recover under a confiscation order the value of property that would have been included as D’s realisable assets but for the fact that it had been forfeited under (e.g.) Part 5 of POCA 2002.
  • CPS v Derby and South Derbyshire Magistrates’ Court [2010] EWHC 370 (Admin). What may be unreasonable or inexplicable delay in enforcing a confiscation order will not in all cases result in a full stay of proceedings. The question is always what is a proportional remedy for the breach: Lloyd v Bow Street Magistrates’ Court [2004] 1 Cr App R 132; Crowther v UK (2005) The Times, 11 February 2005, and the Crown on the Application of Joyce v Dover Magistrates Court [2008] EWHC 1448 (Admin), considered.
  • RCPO v Iqbal [2010] EWCA Crim 376 [transcript]. Two years after the date of the conviction no order was made by the court postponing the hearing of the application for a confiscation order and no application was made by either party for a postponement of the hearing of the application. The question arose whether, absent a court order within the two-year period postponing the hearing of the application for a confiscation order, and absent any application made before that date to postpone the hearing, there was jurisdiction to entertain the application for a confiscation order. The Court answered the question in the negative on that grounds that “the wording of s.14 (and in particular of sub-paragraphs (3) and (8)) makes it quite clear that Parliament intended to give prosecutors a longer period than the six months under the earlier legislation, but at the same time intended to make it clear that any application to extend a period of postponement had to be made before the permitted period expired”. The Court made it clear that it was not deciding what meaning should be given to sub-paragraph (11) when a confiscation order has been made and it was not giving any opinion as to how the prosecution might have been able to rectify the position before the expiry of the two-year period. NOTE that this case was considered in R v T [2010] EWCA Crim 2703, where the court said “In our judgment HHJ Ambrose should not have been inhibited, as he was, by Hooper LJ’s observation in Iqbal so as to conclude that there was no jurisdiction here to entertain the confiscation proceedings. It is true that [the court] did not expressly consider exceptional circumstances. That should have been done…[appeal allowed]…we wish to emphasise the importance that this court attaches to the need for judges in the Crown Court to be very alive to the provisions of section 14 of the Proceeds of Crime Act, and to ensure that their judgments are expressly loyal to those provisions.” [para.13]
  • Hancox and oths [2010] EWCA Crim 102 [transcript]. This is an important case regarding the power of the Crown Court to make a Serious Crime Prevention Order under the Serious Crime Act 2007. As the Court remarked, “[the] vital provision is section 19(2). The order may be made if but only if the court has reasonable grounds to believe that an order would protect the public by preventing, restricting or disrupting involvement by the defendant in serious crime (as defined in section 2 and Schedule 1) in England and Wales. It follows that the court, when considering making such an order, is concerned with future risk. There must be a real, or significant, risk (not a bare possibility) that the defendant will commit further serious offences (as defined in s 2 and Schedule 1) in England and Wales.” For detailed commentary, see R. Fortson, “Serious Crime Act 2007“, Blackstone’s Guide, OUP.
  • Rooney [2010] EWCA Crim 2 [transcript]. This is another case concerning the circumstances in which there can be a joint obtaining (i.e. a joint benefit). Having regard to the House of Lords trilogy of cases (Green, May, and Jennings) the Court summarised the law as follows “(a) if a benefit is shown to be obtained jointly by conspirators, then all are liable for the whole of the benefit jointly obtained. (b) If, however, it is not established that the total benefit was jointly received, but it is established that there was a certain sum by way of benefit which was divided between conspirators, yet there is no evidence on how it was divided, then the court making the confiscation order is entitled to make an equal division as to benefit obtained between all conspirators. (c) However, if the court is satisfied on the evidence that a particular conspirator did not benefit at all or only to a specific amount, then it should find that is the benefit that he has obtained.” [para.36]
  • Paivarinta-Taylor [2010] EWCA Crim 28 [transcript]. The judge fined the Appellant in advance of making the confiscation order. The question arose whether this invalidated the making of confiscation order having regard to s.72A(9) of the CJA 1988. In dismissing the appeal, the Court of Appeal held that “the House of Lords made clear in Soneji & Bullen, the purpose of the sequence set out in section 71(1) of the 1988 Act is to ensure the effectiveness of the sentencing procedure overall, and the purpose behind section 72A(9) is to maintain the primacy of confiscation orders by prohibiting the Court from imposing a fine or other financial order until after the making of a confiscation order, even though the Court may impose other types of sentence or order before making a confiscation order. Sections 72(5) & 72(9A) are clearly further reflections of the same purposes.” [para.35]. The court added “Although there are likely to be relatively few confiscation proceedings brought under the 1988 Act in the future, we would emphasise again the duty of Counsel on both sides to bring section 72A(9) the attention of the Court” [para.46]. Note that POCA 2002 contains provisions that correspond to s.72A(9) of the 1988 Act.
  • Perkes [2010] EWCA Crim 101 [transcript]. This is another case that illustrates that the Court of Appeal will not lightly go behind the making of a confiscation order where the parties have agreed the value of D’s ‘benefit’ figure and the amount recoverable under a confiscation order. The Applicants are fish merchants who pleaded guilty to 5 counts of failing to submit sales notes and landing declarations relating to purchases of fish that they made. These are offences of strict liability. They were sentenced to fines of £400 on each count and confiscation orders were made in the sum of £188,195 against IP, and in the sum of £150,000 against SP. The Judge made it clear that he had moderated the level of the fines because of the size of the Confiscation Orders. The Applicants also contended that much of the confiscation hearing was conducted by the prosecution on a basis that was contrary to the basis of plea. The court considered Lazurus [2004] EWCA Crim 2297 and Lunnon [2005] 1 Cr. App. R.(S) 24, but it was not satisfied that this is one of those cases where the Prosecution, by not contradicting a basis of plea, had bound itself in the Confiscation Proceedings. It was satisfied that, even if the prosecution were so bound, that it did not render the proceedings unfair.
  • Wilkinson [2009] EWCA Crim 2733 [transcript]. A 2009 case, but useful to note here nonetheless. W had been in possession of a car for one hour in order to “test drive” it, and then came to suspect that it was stolen. The Court of Appeal said that it seemed “unreal to say that the defendant obtained property in the sense in which their Lordships [in May [2008] UKHL 28; Jennings [2008] UKHL 29; and Green [2008] UKHL 30] used that term. He never had any right to possess it; he obtained the property for a limited time and a limited purpose, just as a courier does. He had no more control over the property than a courier or custodian will have. Unless and until he chose to buy the car, he was obliged to return it” [para.17]. The Court added that “the situation may well be different if a defendant in these circumstances was to seek to exercise the rights of the owner, such as by selling the car, albeit contrary to the terms in which it was given to him. But that is not the situation here. He did not stray from the limited purpose for which the car had been given to him” [para.18].