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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Nawaz, R. v [2020] EWCA Crim 1715 (18 December 2020) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2020/1715.html Cite as: [2020] EWCA Crim 1715 |
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ON APPEAL FROM Cardiff Crown Court
HHJ Bidder QC
T20167190
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE JULIAN KNOWLES
and
HIS HONOUR JUDGE BLAIR QC
Recorder of Bristol
____________________
REGINA |
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- and - |
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Mohammed NAWAZ |
____________________
Copies of this transcript are available from:
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7414 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Crown did not appear and was not represented
Hearing date: Wednesday 4th November 2020
____________________
Crown Copyright ©
Lord Justice Green :
Introduction: The Issues
The Facts
The Criminal Proceedings for Conspiracy
The Proceedings under the Proceeds of Crime Act 2002 and the Application for Permission to Appeal the Confiscation Order
"I have considered the grounds of appeal (and the notice of opposition).
You advance no arguable ground of appeal. Your grounds amount to no more than an assertion that (i) you should not have been convicted and you seek thereby to go behind the verdict of the jury (ii) HHJ Bidder was wrong in his findings. The jury convicted you.
The prosecution provided the evidence for the Proceeds of Crime Act application and provided the evidence to support the confiscation order made by the learned judge of £599,623,79.
You do not advance any argument as to why the evidence was false or why the learned judge was wrong to accept it.
He found your evidence to be wholly dishonest.
He applied the law and he reached a confiscation figure, which you cannot dispute.
You do not raise any point of law. You cannot just keep on making assertions of innocence. You were able to provide your evidence at the hearing (and at the trial) and to make your submissions. These were all rejected, first by the jury, then by the learned judge at the confiscation hearing. I have read the learned judge's ruling and can find no fault. Your application totally lacks merit."
Issue I: The Exclusion of the Applicant from the Royal Courts of Justice
The Exclusion of the Applicant from Court
The Events leading up to the Exclusion: The Health Protection (Coronavirus Restrictions) (Self Isolation) (England) Regulation 2020 (SI 2020/1045)
"Dear [ ],
Thank you for the documents which have been safely received and which I have passed on to my client.
Please be advised that I no longer act for the Appellant. He has informed me that he intends to instruct Sean Larkin QC. I have copied my former client into this email. Please direct all further correspondence to him.
My client has informed me that he will be contacting the Court requesting an adjournment. My client has requested that I pass on to the Court the following information:
He requests that Court adjourn the hearing listed on 04/11/20 at 10 am on the basis that there is a lockdown due to Covid 19 and also that he is self-isolating and suffering from Covid 19. He is also concerned that the Court of Appeal will not have the bundles of documents from the trial. He considers that he needs to submit these bundles to the Court of Appeal and on that basis also needs an adjournment and also for Sean Larkin QC to be instructed to deal with his appeal.
Should my client have any further submissions to make in relation to his request for an adjournment, I am sure that he will contact you directly with those.
Yours sincerely
Dr Anton van Dellen
Barrister"
"Requirements on person notified of positive test for acute respiratory syndrome coronavirus 2 (SARS-CoV-2) and close contacts of such persons"
2.— (1) This regulation applies where an adult is notified, other than by means of the NHS Covid-19 smartphone app developed and operated by the Secretary of State, by a person specified in paragraph (4) that—
(a) they have—
(i) tested positive for severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) ("coronavirus") pursuant to a test after 28th September 2020, or
(ii) had close contact after 28th September 2020 with someone who has tested positive for coronavirus;
(b) a child in respect of whom they are a responsible adult has—
(i) tested positive for coronavirus pursuant to a test after 28th September 2020, or
(ii) come into close contact after 28th September 2020 with someone who has tested positive for coronavirus.
(2) Where—
(a) paragraph (1)(a) applies, the person notified must—
(i) self-isolate for the period specified in regulation 3; and
(ii) notify the Secretary of State, if requested by a person specified in paragraph (4), of the address at which they will remain pursuant to the restriction in paragraph (3)(a); and
(b) paragraph (1)(a)(i) applies, the person notified must notify the Secretary of State of the name of each person living in the same household as P;
(c) paragraph (1)(b) applies, R must—
(i) secure, so far as reasonably practicable, that the child self-isolates for the period specified in regulation 3; and
(ii) notify the Secretary of State, if requested by a person specified in paragraph (4), of the address at which the child will remain pursuant to the restriction in paragraph (3)(a); and
(d) paragraph (1)(b)(i) applies, R must notify the Secretary of State of the name of each person living in the same household as the child.
(3) in paragraph (2), "self-isolate" means P is subject to the following restrictions—
(a) P must remain in—
(i) P's home;
(ii) the home of a friend or family member of P or of R where P is a child; or
(iii) bed and breakfast accommodation, accommodation provided or arranged under section 4, 95 or 98 of the Immigration and Asylum Act 1999(1) or other suitable place;
(b) P may not leave the place specified in sub-paragraph (a) except where necessary—
(i) to seek medical assistance, where this is required urgently or on the advice of a registered medical practitioner, including to access—
(aa) services from dentists, opticians, audiologists, chiropodists, chiropractors, osteopaths and other medical or health practitioners, or
(bb) services relating to mental health,
(ii) to access veterinary services, where this is required urgently or on the advice of a veterinary surgeon,
(iii) to fulfil a legal obligation, including attending court or satisfying bail conditions, or participating in legal proceedings,
(iv) to avoid a risk of harm,
(v) to attend a funeral of a close family member,
(vi) to obtain basic necessities, such as food and medical supplies for those in the same household (including any pets or animals in the household) where it is not possible to obtain these provisions in any other manner,
(vii) to access critical public services, including social services, and services provided to victims (such as victims of crime),
(viii) to move to a different place specified in sub-paragraph (a), where it becomes impracticable to remain at the address at which they are."
"Do you wish to address the Court and make oral representations in support of your renewed confiscation application at Wednesday's hearing?
Are you, indeed, presently suffering from Covid-19? When were you diagnosed with the condition? Can you provide any medical evidence to support your assertion?"
The Decision to Proceed in the Absence of the Applicant
Issue II: The Confiscation Proceedings - Apportionment
The Applicant's Amended Grounds
"(5) In determining, under the 2002 Act, whether D has obtained property or a pecuniary advantage and, if so, the value of any property or advantage so obtained, the court should (subject to any relevant statutory definition) apply ordinary common law principles to the facts as found. The exercise of this jurisdiction involves no departure from familiar rules governing entitlement and ownership. While the answering of the third question calls for inquiry into the financial resources of D at the date of the determination, the answering of the first two questions plainly calls for a historical inquiry into past transactions."
Conclusion
"53. … The argument can be analysed as amounting to a contention that Flaux J should have apportioned the £12.6m equally between the two Ahmad defendants, to justify the conclusion that the property each of them obtained under the 2002 Act was half the total sum acquired. The argument has its attractions. It can be said to accord with the presumption that, where two people lawfully own property jointly "the beneficial interest belongs to the[m] in equal shares" – per Lord Diplock in Gissing v Gissing [1971] AC 886, 908. It also would avoid the risk of double recovery or unfair recovery. However, we would reject the argument."
"55. … That is because, in many multi-party sophisticated crimes, it is unusual to have all the conspirators before the court, the defendants who are before the court will say that the other conspirators received all the property, and frequently many of those other conspirators will never be apprehended."
The dynamics of a typical contested criminal trial involve defendants denying participation in the conspiracy and, for this reason, not giving evidence as to how the spoils are divided up. And if there is a plea, involving an admission of guilt, it remains improbable in the extreme that anything will be admitted in relation to the division of the proceeds or, if it is, that it will be anything other than an attempt to minimise responsibility and gain, not least because of the inevitability that confiscation proceedings will ensue. What might arise is evidence of the degree of participation of each defendant in the conspiracy and the judge will have to make finding about this for the purpose of determining roles when it comes to sentencing. This might provide some, though possibly limited, guidance relevant to determining how the rewards of the criminal conduct were split. In Ahmad these sorts of considerations were important:
"55. … Fourthly, for similar reasons, it would render the task of a judge at a confiscation hearing more difficult than it already is and would make it correspondingly easier for an unscrupulous defendant (and most defendants in these cases appear, unsurprisingly, to be unscrupulous) to seek to avoid, or at least to minimise, his liability.
56. In many cases it is often completely unclear how many people were involved in the crime, what their roles were, and where the money went. As a result, if the court could not proceed on the basis that the conspirators should be treated as having acquired the proceeds of the crime together, so that each of them "obtained" the "property", it would often be impossible to decide what part of the proceeds had been "obtained" by any or all of the defendants. There is obvious cause for concern about having to inquire into the financial dealings between criminals who have together obtained property, especially given that the ringleaders are often not even before the court. It is one thing for the court to have to decide whether a defendant obtained any property, which the 2002 Act requires. It is another thing for the court to have to adjudicate on the respective shares of benefit jointly obtained, which the Act does not appear to require."
"59. … it may be that, if the Ahmad defendants had been frank rather than dishonest in their evidence, they could have shown that the facts justified a conclusion that the property which MST obtained was limited to the share of the £12.6m which it actually received, and/or that their individual liabilities should each be held to be for a sum equal to half the property obtained by MST. (It is only right to add that it may well be that, even if they had been honest with the court, the facts would not have justified such a conclusion.) As it was, given the complete absence of any assistance from the Ahmad defendants (indeed, what they said was positively misleading), the judge had no alternative to falling back on the natural conclusion that, through the vehicle of MST, they had been major participants in the carousel fraud, and had therefore obtained the whole £12.6m, albeit together with the other participants (only some of whom could be identified)."
"Accordingly, where a finding of joint obtaining is made, whether against a single defendant or more than one, the confiscation order should be made for the whole value of the benefit thus obtained."
"72. This Court has considered the provisions of A1P1 in the context of the 2002 Act in two recent cases: Waya and in Barnes v Eastenders Cash & Carry plc [2014] UKSC 26, [2014] 2 WLR 1269. In Waya, paras 11-13, Lord Walker and Hughes LJ summarised the requirements of A1P1 and section 3 of theHuman Rights Act 1998. In Barnes, paras 53ff, Lord Toulson reviewed the Strasbourg jurisprudence. It is unnecessary to repeat the summary or the analysis in this case; the general principles are well understood. In our view Mr Mitchell's argument is as compelling as it is simple. To take the same proceeds twice over would not serve the legitimate aim of the legislation and, even if that were not so, it would be disproportionate. The violation of A1P1 would occur at the time when the state sought to enforce an order for the confiscation of proceeds of crime which have already been paid to the state. The appropriate way of avoiding such a violation would be, as Mr Mitchell has submitted, for the confiscation order made against each defendant to be subject to a condition which would prevent that occurrence.
73. This approach may appear to risk producing inequity between criminal conspirators, on the basis that some of them may well obtain a "windfall" because the amount of the confiscation order will be paid by another. However, that is an inherent feature of joint criminality. If the victim of a fraud were to sue the conspirators and to obtain judgments against them, he would be entitled to enforce against whichever defendant he most easily could. The losses must lie where they fall, and there is nothing surprising, let alone wrong, in the criminal courts adopting that approach."
Note 1 The Law Commission has, as of the date of this judgment, published a Consultation Paper proposing various reforms to the law: “Confiscation of the proceeds of crime after conviction” (Consultation Paper No 249, 17th September 2020). That paper does raise various points about proportionality. However, the Paper, of course, reflects possible future reforms, not what the law presently is. [Back]