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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bagnall & Anor v R. [2012] EWCA Crim 677 (18 April 2012) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2012/677.html Cite as: [2012] WLR(D) 118, [2013] 1 WLR 204, [2012] EWCA Crim 677, [2012] Lloyd's Rep FC 614 |
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ON APPEAL FROM MANCHESTER CROWN COURT and
WINCHESTER CROWN COURT
His Honour Judge Atherton and
His Honour Judge Longbotham
T20060633 and T20050051/T20067084
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE MACUR
and
MRS JUSTICE SHARP
____________________
Darren John Bagnall | First Appellant |
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| Nirmal Kumar Sharma |
Second Appellant |
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| - and - |
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| The Crown |
Respondent |
____________________
Mr A Campbell-Tiech QC and Mr M Buckland (instructed by IBB Solicitors) for the Second Appellant
Mr M Lucraft QC, Ms L Freeman and Mr K Talbot (instructed by the Crown Prosecution Service) for the Respondents
Hearing dates: 13th-14th March 2012
Judgment
____________________
Crown Copyright ©
Lord Justice Moses:
Introduction to Both Appeals
Bagnall
the appellant was convicted on one count of money-laundering, after being caught with a bag containing £99,200.00 in Bank of England notes. Three years after that conviction, in February 2010, a Confiscation Order in the amount of £1,818,619.97 was made against him. In Sharma, the appellant was convicted, after a retrial, of nine offences of procuring the execution of a valuable security, one count of false accounting, and one of doing an act tending and intended to pervert the course of public justice, which resulted in a benefit of just under £40,000.00. But in his case, a Confiscation Order was made nearly three years later in the sum of £4,101,339.00.
Bagnall
was sentenced to 15 months' imprisonment and ordered to serve in default six years' imprisonment; Sharma was sentenced to 39 months' imprisonment in all but in respect of the Confiscation Order the period in default was eight years' imprisonment.
Bagnall
suggests that the process which led to the Confiscation Order deprived him of his rights enshrined in Article 6 of the European Convention on Human Rights, Sharma that the order made was disproportionate and was in any event made in disregard of the evidence he adduced as to the legitimate source of the money transferred to or held by him.
"The court looks to the realities of the procedure in question and not to the form. The test to be applied has been set out in many cases dating back to the earliest decisions relating to confiscation under the Drug Trafficking Offences Act 1986 in Welch v the United Kingdom (judgment at 9 February 1995 Series A No. 307-A, BAILII: [1995] ECHR 4). The court is required to consider three criteria: the classification of the proceedings under national law, their essential nature and the type and severity of the penalty that the applicant risked incurring" (Phillips v The United Kingdom 11 BHRC 280 paragraph 31).
"35. the Court has also considered whether, despite its above finding that the making of the confiscation order did not involve the bringing of any new 'charge' within the meaning of Article 6 § 2, that provision should nonetheless have some application to protect the applicant from assumptions made during the confiscation proceedings.
However, whilst it is clear that Article 6 § 2 governs criminal proceedings in their entirety, and not solely the examination of the merits of the charge (see, for example, Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62, pp. 15-16, § 30; Sekanina v. Austria, judgment of 25 August 1993, Series A no. 266-A; and Allenet de Ribemont v. France, judgment of 10 February 1995. Series A no. 308), the right to be presumed innocent under Article 6 § 2 arises only in connection with the particular offence 'charged'. Once an accused has properly been proved guilty of that offence, Article 6 § 2 can have no application in relation to allegations made about the accused's character and conduct as part of the sentencing process, unless such accusations are of such a nature and degree as to amount to the bringing of a new 'charge' within the autonomous Convention meaning referred to in paragraph 32 above (see Engel and Others v. the Netherlands, judgment of 8 June 1976. Series A no. 22. pp. 37-38 § 90)."
"In reality, this clause (Article 6.2) does not have the scope ascribed to it by the two applicants. As its wording shows, it deals only with the proof of guilt and not with the kind or level of punishment. It thus does not prevent the national judge, when deciding upon the penalty to impose on an accused lawfully convicted of the offence submitted to his adjudication, from having regard to factors relating to the individual's personality…
It was for the sole purpose of determining their punishment in the light of their character and previous record that the said court also took into consideration certain similar, established facts, the truth of which they did not challenge. The court did not punish them for these facts in themselves…" (paragraph 90)
"He (the defendant) must know the source of his assets and what he has been living on."
In Revzi Lord Steyn, adopting Lord Bingham's speech in McIntosh, said:-
"The application by the Crown to apply primary legislation (subject to control by the court and subject to a full right of appeal on the part of the convicted defendant) could not amount to an abuse of the process of the court. The procedure is fair in as much as the sentencing court is duty bound not to make the assumptions if it might be unfair to do so. There was therefore no abuse of the process of the court." (paragraph 20)
This applies equally to PoCA which requires the court not to make a required assumption if there would be a serious risk of injustice (s.10(6)(b)). The judge rightly rejected the contention of abuse of process.
Bagnall
was convicted, namely, money-laundering, rather than rely upon his view as to the source of his assets. Since this ground of appeal was advanced, this court has ruled that a judge is entitled to have regard to the whole picture of the defendant's lifestyle (see, e.g., R v Webb [2011] EWCA Crim 882 paragraph 24 and its citation of Hancox v The Queen [2010] EWCA Crim 102 and R v Bell [2011] EWCA Crim 2728). Those cases make it clear that the judge was entitled to take into account the defendant's very high standard of living and luxury, and his evasive and dishonest evidence in relation to confiscation. There was a sufficiently high risk to justify the making of an Order. We dismiss the appeal against the Order.
Nirmal Sharma
Bagnall,
it is not disproportionate to require a defendant to establish that the source of monies which he holds in his accounts or accounts with which he has a connection are from a legitimate and not a criminal source. There is nothing unfair in requiring the appellant to disclose and explain where monies that he holds had come from. We refer again to the speech of Lord Steyn in R v Rezvi. In R v May [2008] 1 QC 1028 Long Bingham reiterated that the legislation was neither oppressive nor disproportionate (paragraph 43).
Bagnall, there is no basis for contending that to impose the burden upon the defendant of showing that the source of his property is legitimate is unfair, nor contrary to Article 6 of the Convention.
Recusal and the Appearance of Bias
"it is entirely a matter for you to make whatever submissions you want to, but I recall clearly I think it was the last occasion saying that from my position this is like peering through a fog as I am just not given any information. I do not know anything. I have not seen one single sheet of paper. I just do not know what has been going on behind the scenes. And I still have not seen the draft order, which I understand I was going to be provided with when everybody was so confident that this was going to be settled. I never saw it"