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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Shabir v R. [2008] EWCA Crim 1809 (31 July 2008) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2008/1809.html Cite as: [2008] EWCA Crim 1809, [2009] 1 Cr App Rep (S) 84, [2009] Lloyd's Rep FC 53, [2009] 1 Cr App R (S) 84, [2009] Cr App R(S) 81, [2008] Crim LR 991 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEEDS CROWN COURT
HIS HONOUR JUDGE HUNT
T20041146
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE DOBBS DBE
and
HIS HONOUR JUDGE PERT QC
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Mohammed ![]() ![]() |
Appellant |
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- and - |
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The Queen |
Respondent |
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WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
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Crown Copyright ©
Lord Justice Hughes :
(i) If asked by the Crown to proceed according to the confiscation regime, the court has no discretion and must do so. It once did have a discretion, but such was removed by Parliament by the Proceeds of Crime Act 1995, and does not exist in the legislation relevant to this case, which is POCA 2002: see sections 6(1) and 6(3)(a).
(ii) Once the Crown asks the court to embark upon the confiscation process, the first question is whether or not the defendant has a criminal lifestyle according to the provisions of the Act; that rule is to be found in section 6(4)(a).
(iii) By section 75(2)(b) the defendant has a criminal lifestyle, inter alia, if the offence of which he was convicted forms part of a course of criminal conduct. A course of criminal conduct arises, by section 75(3)(a) if there are three or more offences from which he has benefited, but this rule is subject to section 75(4) which provides:
"But an offence does not satisfy the test in subsection 2(b)…unless the defendant obtains relevant benefit of not less than £5000."
'Relevant benefit' is defined by section 75(5)(b) in terms which make it clear that this threshold is passed if the benefit from all the offences forming the course of conduct, and of which the defendant has been convicted, adds up to £5000.
This defendant had been convicted of six offences. That meant that each offence was part of a course of criminal conduct. So what mattered was whether he had obtained from his six offences benefit of £5000 or more in all.
(iv) By section 76(4):
"A person benefits from conduct if he obtains property as a result of or in connection with the conduct."
And, by section 76(5):
"If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage."
(v) By section 76(7):
"If a person benefits from conduct his benefit is the value of the property obtained."
If what is obtained is a pecuniary advantage, section 76(5), already quoted, stipulates that the amount of benefit is the value in money of the pecuniary advantage.
Obtaining a money transfer by deception contrary to section 15A of the Theft Act 1968.
MohammedShabir
on or about 1st day of August 2003 dishonestly obtained for himself a money transfer in the sum of £28,333.34 by deception, namely by falsely representing that the details on Form FP34 for the period May 2003 were an accurate record of the drugs and appliances supplied from the Cardigan Road Pharmacy."
(1) Because he was legally entitled to all but a tiny proportion of the sum paid, what he obtained as a result of, or in connection with, his deception was the excess to which he had no right, rather than the whole payment. That was the extent of his crime, and thus, he contends, the extent of his benefit. The Judge was, he contends, wrong to rule otherwise.
(2) The decision of the Crown to seek confiscation in the sum of something amounting to several hundred times the amount of the defendant's fraud was oppressive and/or a breach of Article 1 of Protocol 1 to the European Convention on Human Rights.
What benefit was obtained ?
The Crown's decision; abuse of process
"It was accepted on behalf of the Crown that a judge had in principle a discretion to stay proceedings if what the Crown was proceeding to do amounted to an abuse of process. We consider that that concession was rightly made by the Crown."
The same was accepted in R v Hockey [2007] EWCA Crim 1577; [2008] 1 Cr App R (S) 50 at 279, paragraph 18, R v Nield [2007] EWCA Crim 993, R v Farquhar (supra) at paragraph 12 and R v Morgan and Bygrave [2008] EWCA Crim 1323.
"I respectfully agree with [Lord Dilhorne] that a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene."
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes of other contributions or penalties."
This country's confiscation regime has consistently been held to be a proportionate and legitimate response to crime and thus to occasion no infringement of the Protocol: see for example Phillips v United Kingdom (2001) 11 BHRC 280 and R v Rezvi [2003] 1 AC 1099. Even if it be accepted that the Protocol may be capable of being infringed by a truly oppressive and thus disproportionate individual order for confiscation (as to which we express no opinion), it is clear that the court's power to stay for oppression provides the remedy.