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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ali v R  EWCA Crim 1658 (31 July 2014)
Cite as:  WLR(D) 366,  EWCA Crim 1658,  Crim LR 88,  1 WLR 841,  WLR 841,  JPL 327
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ON APPEAL FROM the Crown Court at Harrow
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WILKIE
MR JUSTICE HADDON-CAVE
| Salah Ali
|- and -
Andrew Campbell-Tiech QC and Kriston Berlevy (instructed by London Borough of Brent) for the Respondent
Hearing date: 17 July 2014
Crown Copyright ©
Lord Justice Beatson :
(a) The circumstances in which the statutory assumptions in section 10 of POCA are to be applied in a case where the defendant is absent from the confiscation proceedings through illness;
(b) Whether, and if so on what basis, a defendant's particular and general benefit within sections 6 and 10 of POCA includes rent received in respect of a property where no enforcement notice has been served, or in respect of a period before the expiry of the time for compliance with an enforcement notice, and
(c) Whether the judge erred in not adjourning the appellant's case before proceeding with the confiscation hearing in order to seek further medical evidence about his re-admission to hospital and in refusing to stay the proceedings as an abuse of process in the light of the appellant's circumstances and mental health.
To the extent that the appeal is allowed, a further issue will arise in relation to 211 Willesden Lane. It is whether, if the order is varied pursuant to section 11(3) of the Criminal Appeal Act 1968, this should be done to reflect the requirement in section 8(2) of POCA that the court must "take account of conduct occurring up to the time [the Crown court] makes its decision" in the confiscation proceedings (29 September 2012) rather than, as in the existing order, 2 February 2009, the end of the period for which the appellant was charged.
I. The material principles of law
(1) Under section 6(2) of POCA, it is mandatory to proceed with a view to a confiscation order being considered once two conditions are satisfied, namely that the defendant is convicted of an offence before the Crown Court and that the prosecution applies for the order to be made.
(2) A central feature of Part 2 of POCA is the distinction between cases in which the defendant is, or is not, to be treated as having a criminal lifestyle (as prescribed by section 75). It is accepted in this appeal that, because the offence of which the appellant was convicted was an offence committed over a period of at least six months and he has a relevant benefit of over £5,000 from the conduct that constituted the offence, that he has, by virtue of section 75(2)(c), benefited from a criminal lifestyle.
(3) In cases where a defendant has benefited from a criminal lifestyle, the court must determine how much he has benefited from his general criminal conduct. If he does not have a criminal lifestyle, the court must determine whether he has benefited from the particular criminal conduct. In both cases, the first stage is to identify the benefit: see sections 6(4), 8 and 76. Section 8(2) requires the court to "take account of conduct occurring up to the time it makes its decision" in the confiscation proceedings.
(4) In cases where a defendant has a criminal lifestyle, when deciding whether he has benefited from his general criminal conduct and deciding what his benefit is from the conduct, the courts must, in accordance with section 6, make the assumptions contained in section 10. Broadly stated, the effect of these assumptions is that property in the possession of a defendant in the six years ending with the day when proceedings for the offence concerned were started against the defendant is assumed to be the product of his criminal activities unless he can show otherwise on the balance of probabilities. In other words, in such a case the burden of proof is reversed since the defendant has to show how he came by his assets.
(5) The second stage is the valuation of the benefit. It may fall to be valued (see sections 79 and 80) either at the time when it is obtained, or at the date of the confiscation order.
(6) The third stage is the valuation as at the confiscation date of all the defendant's realisable assets, described in section 9 as "the available amount". The "available amount" operates as a cap on the amount of the confiscation order, termed "the recoverable amount" in section 7.
(7) POCA laid down a procedure to enable the court to obtain the information necessary to make findings as to benefit and assets. The prosecution serves a statement of information pursuant to section 16 ("a section 16 statement"), outlining what it considers to be matters potentially relevant to the inquiry. The defendant may be ordered to indicate to what extent he accepts the matters in the statement, and to particularise those matters which he does not accept in a response: see section 17. A defendant may also be required to provide information to help the court carry out its functions: see section 18.
"76 Conduct and benefit
(1) Criminal conduct is conduct which—
(a) constitutes an offence in England and Wales, or
(b) would constitute such an offence if it occurred in England and Wales.
(2) General criminal conduct of the defendant is all his criminal conduct, and it is immaterial—
(a) whether conduct occurred before or after the passing of this Act;
(b) whether property constituting a benefit from conduct was obtained before or after the passing of this Act.
(3)Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs—
(a) conduct which constitutes the offence or offences concerned;
(b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned;
(c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.
(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.
(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.
(6) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other.
(7) If a person benefits from conduct his benefit is the value of the property obtained."
III. The factual and procedural background
IV. The rulings on the applications to adjourn and to stay the proceedings as an abuse of process
"for those in the business of letting properties and dividing properties and subletting rooms in properties, contrary to the planning restrictions…to view the enforcement notices as a business expense. The limited fines that are passed in the Magistrates Court are merely a business expense as far as they are concerned, and it is worth their while delaying and delaying and delaying, because in the meantime they are gaining much larger income from the rent they are receiving from the various tenants in their properties."
He then concluded (vol. II, 8E) that it seemed to him "on all the evidence" that the appellant "was operating his business along exactly those lines"; that is the appellant operated the business on the basis that delaying enforcement notice proceedings was in his interests, because in the meantime he continued to receive rental income.
V. The confiscation ruling
"it seems to me that this is exactly the sort of the case that Parliament considered where section 10 assumptions should apply, and it follows from that that, in my judgment, the correct benefit figure is one that is applied for the prosecution, and that is £1,438,180.59, and I thus find that as the benefit figure in this case" (vol. III, 4A).
VI. The grounds of appeal and a summary of the amounts in contention
(a) Whether it is correct in law, and if so in what circumstances, for the statutory assumptions in section 10 of POCA to be applied in a case where a defendant is either voluntarily or involuntarily absent through illness;
(b) Whether the defendant's benefit (both particular and general benefits) within the meaning of section 6 and section 10 of POCA includes rents received where no enforcement notice has been served or before the time for compliance with an enforcement notice;
(c) Whether the judge erred in not adjourning the case on 24 September 2012 in order to seek further medical evidence as to the basis of the appellant's re-admission to the Park Royal Centre for Mental Health on 19 September 2012;
(d) Whether the judge was wrong to refuse to stay the proceedings as an abuse of process.
211 Willesden Lane: (enforcement notice issued on 8 February 2008 requiring compliance by 19 June 2008)
a. £237,978.08 housing benefit received between January 2005, when the property was bought, and 31 March 2009, the date of the summons.
b. £113,316 housing benefit received between 20 June 2008, the commencement of the time for compliance with the enforcement notice, to 2 February 2009, the end of the period for which the charge was brought.
c. £418,095 housing benefit/rent for the period between 20 June 2008 and 25 September 2012, when the order was made.
195 Church Road: (Enforcement notice issued on 25 August 2005, appealed and compliance due by 10 January 2007)
- £376,435.32 housing benefit received between 1 April 2003 and 31 March 2009 (the six year period).
- £126,263 housing benefit received between 10 January 2007, when compliance was due, and 25 September 2012.
184 Church Road: (No enforcement notice issued)
- £526,448.69 housing benefit for the six year period from 1 April 2003 to 31 March 2009.
340 – 342 High Road: (No enforcement notice issued)
- £405,472.99 housing benefit for the six year period between 1 April 2003 and 31 March 2009.
VII. Analysis and decision
(a) Grounds 3 and 4: adjournment and stay
(b) Ground 1: Application of the statutory assumptions
(c) Ground 2: The position where no enforcement notice has been served and before the time for compliance
(a) In respect of 184 Church Road and 340 – 342 High Road there has been no enforcement notice issued and the order must be set aside insofar as it reflects the housing benefit/rents attributable to those properties. These were stated by the prosecution to have been respectively £526,448.69 and £405,472.99.
(b) In respect of 211 Willesden Lane, where the time for compliance with the enforcement notice lapsed on 19 June 2008, the failure to comply with the notice was only criminal conduct from 20 June 2008 and the receipt of housing benefit/ rent was only the benefit from such conduct from that date. The agreed figure for the period from that date to 2 February 2009, the end of the period for which the appellant was charged, is £113,316.
(c) In respect of 195 Church Road, the receipt of housing benefit/rent could only be criminal conduct from 11 January 2007. The agreed figure for the period from that date is £126,263.