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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Panesar, R. v [2008] EWCA Crim 1643 (17 July 2008) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2008/1643.html Cite as: [2008] EWCA Crim 1643 |
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COURT OF APPEAL (CRIMINAL DIVISION)
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE PLENDER
and
RECORDER OF NOTTINGHAM (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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REGINA |
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- v - |
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PANESAR |
____________________
Mr Adrian Dent and Mr James Bourne-Arton appeared for the Crown
Hearing date : 25 June 2008
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Crown Copyright ©
Recorder of Nottingham :
"10. Assumptions to be made in cases of criminal lifestyle.
(1) If the court decides under section 6 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of –
(a) deciding whether he has benefited from his general criminal conduct, and
(b) deciding his benefit from the conduct.
(2) The first assumption is that any property transferred to the defendant at any time after the relevant date was obtained by him –
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(3) The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him –
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(4) The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.
(5) The fourth assumption is that for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.
(6) But the court must not make a required assumption in relation to particular property or expenditure if –
(a) the assumption is shown to be incorrect, or
(b) there would be a serious risk of injustice if the assumption were made.
(7) If the court does not make one of more of the required assumptions it must state its reasons.
(8) The relevant date is the first day of the period of six years ending with –
(a) the date when proceedings for the offence concerned were started against the defendant, or
(b)…"
It was agreed that the relevant date in this case is the 11th November 1998.
"A confiscation order:
(1) is a penalty, and is a measure to which Article 1 of Protocol 1 is applicable;
(2) is designed to deter those who consider embarking upon criminal conduct;
(3) is designed to deprive a person of profits received from criminal conduct and to remove the value of the proceeds received from criminal conduct from possible use in criminal conduct;
(4) is designed essentially to impoverish defendants, not to enrich the Crown"
These sentiments apply equally to the 2002 legislation. see, for example, Nottingham CPS v. Rose [2008] EWCA Crim 239 at paragraph 67 per Richards LJ"
i) £3,500 deposited on the 21st January 2000. The respondent's evidence that this represented the accumulation of cash from his general legitimate activities that he paid into his account as a lump sum was not accepted. Accordingly, as he had failed to displace the assumption, this sum formed part of his benefit from criminal conduct.
ii) £5,100 deposited on 31st May 2000. Again, the judge was not satisfied with the respondent's explanation that this represented the proceeds of a successful insurance claim following a car accident. The respondent was unable to produce any documentation or any evidence in support.
iii) £4000 informal savings scheme - 11th August 2001. The respondent asserted that this was the proceeds of a payment out of an informal savings scheme into which he had paid a weekly sum. Again, no cogent evidence was produced in support and the judge found the respondent's evidence unconvincing.
iv) £4,000 payment for jewellery. This payment was stated by the respondent to be the proceeds of sale of his wife's jewellery but no evidence of any kind was produced in support and the judge found that the respondent had failed to displace the assumption that this sum was the proceeds of crime. It is noteworthy that both sums of £4,000 were paid into different accounts on the same date, in the circumstances, a very telling point against the respondent.
v) The judge accepted that the respondent had discharged the burden in respect of his motor car and accepted that its purchase may well have come from the generality of his legitimate income and its value was therefore excluded from the calculation.
General earnings
" Taxi driving is a cash business and realistically one must take account, it seems to me, of the fact that people operating cash businesses, reprehensibly, do not always declare their full income for the purpose of taxation."
He went on to fix a "notional" figure of £3,000 per annum over and above his declared income as a taxi driver.
The Respondent's home
"when one looks at the reality of this, the proportion of contribution of these sums to the purchase price of the house, when one looks at it in a historical context, are not significant, and that to reflect, as I am invited to do by the Crown, that contribution in saying that the defendant has benefited to the tune of the entirety of the existing equity would be disproportionate and unjust, and I bear in mind not just the requirement of the statute that I act justly in coming to these conclusions, but also I bear in mind theHuman Rights Act and the requirement to act proportionately, and in those circumstances, I prefer the argument of [counsel for the respondent] that to follow that line of reasoning would be unjust and disproportionate and that the case here can be distinguished very significantly from the circumstances that applied in the case of Mouldon."
"In circumstances where the value of the property in the hands of the defendant exceeds the cash investment he made in it, because the value of that property has risen, we see nothing unjust or even arguably unjust in the value of the property being taken to be the payment or reward of the defendant made in connection with drug trafficking. It has frequently been said that the legislation is draconian. Its object is to deprive those involved in drug trafficking of the benefit of drug trafficking and in a case such as that we are considering, where a deposit has been made of cash monies in order to buy a property, we see nothing unjust or arguably unjust and no risk of injustice if the property which is acquired, which we remember is not the deposit but the equity in the property if there is a mortgage, is taken to be the reward of drug trafficking. It is accepted that the assumptions do apply and the property is assumed and therefore taken to be a payment or reward in connection with drug trafficking, the property is to be valued as at the date of the proceedings resulting in the confiscation order...In our judgment it is neither unjust nor surprising that where a property increases in value, the benefit to the defendant is a sum that may be a multiple of the original deposit."
(1) Benefit : £174,087;
(2) Available amount : £174,087;
(3) Confiscation Order : £174,087.
Lord Justice Maurice Kay
17 July 2008