No: 200705580/C4 
Neutral Citation Number: [2008] EWCA Crim 1308
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 15th May 2008
 
B e f o r e:

LORD JUSTICE LATHAM
(VICE‑PRESIDENT OF THE CACD) 

MR JUSTICE DAVID CLARKE 
MR JUSTICE MACDUFF 
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R E G I N A 

v 

STAPLETON 
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Mr L Pepper appeared on behalf of the Applicant
Mr T Brown appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE LATHAM:  On 7th February 2007 in the Magistrates' Court at Redditch, this appellant pleaded to six offences of furnishing false information under section 17(1)(b) of the Theft Act 1968.  The appellant was then committed for sentence to the Crown Court pursuant to section 70 of the Proceeds of Crime Act 2002.  That was with a view to a confiscation order being considered.  On 29th March 2007 she was sentenced to a suspended sentence order with a supervision requirement for 18 months, and ordered to pay £1,300 towards the costs of the prosecution.  The matter then adjourned so far as the confiscation proceedings were concerned, and which were ultimately disposed of on 27th September 2007 when she was ordered to pay a confiscation order of £24,975.85 under the Proceeds of Crime Act 2000, or to serve 9 months' imprisonment in default.  She appeals against her sentence, that is the confiscation order only, by leave of the Single Judge.
2.	The background facts are relevant simply and solely in relation to dates, because the offences related to obtaining of housing benefit of £15,946.46 from the London Borough of Lewisham between 22nd July 2002 and 16th August 2006.  The relevance of those dates is that the provisions of the Proceeds of Crime Act 2002, in relation to offences, did not come into force until 24th March 2003.  In other words, there were some offences, in particular, two offences on 28th May 2002 and 3rd February 2003 which had been committed prior to the commencement of the Proceeds of Crime Act 2002.
3.	The argument on behalf of the appellant before the judge who made the confiscation order, repeated for us on appeal, is quite simply that, as a consequence, the judge had no power to make any confiscation order, as he purported to do, under the Proceeds of Crime Act 2002.  The provision upon which she relies is paragraph 3 of the Proceeds of Crime Act 2002, Commencement No 5 Transitional Provision Saving and Amendments Order 2003, which is in the following terms: 
"(1) Section 6 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 6(2) was committed before 24th March 2003."
4.	The original application by the prosecution for a confiscation order was undoubtedly incompetently prepared.  It confused the powers of the court under the Criminal Justice Act 1988 and those under the Proceeds of Crime Act 2002; and from the procedural history given to us by Mr Pepper it is plain that it took some time for the prosecution eventually to get its house in order, which it did by indicating that it was intending to ask for the confiscation order, under the Proceeds of Crime Act 2002, simply in relation to those offences which postdated March 2003.  The judge, in those circumstances, accepted that he had jurisdiction to make an order under the 2002 Act, and did so in the terms to which we have referred.
5.	Mr Pepper repeating, as we have said, the submission that he made to the judge, states that on a simple straightforward reading of the transitional provisions there was no power to make any such order under the 2002 Act.  It had to be made, if any confiscation order was made at all, under the provisions of the 1988 Act, as amended.  He has submitted that it is a matter of pure statutory construction; the House of Lords in the case of Clarke & McDaid [2008] UKHL 8 has made it clear that where there are statutory provisions which are clear in their terms, then the court is bound to apply them, even if the consequence may appear to suggest that a defendant is being able to take advantage of an unmeritorious technicality.  He points out that the speech of Lord Bingham, at paragraph 17, makes that point expressively.
6.	The prosecution have throughout relied, in order to found the claim for confiscation under the 2002 Act, on two decisions of this Court:  R v Simpson [2004] QB 118 and R v Aslam [2004] EWCA Crim 2801.  In the latter case the court was concerned with the provisions, as it had been with Simpson, of the 1995 Proceeds of Crime Act 1995.  That Act made amendments to the 1988 Act, in relation to confiscation provisions but section 16(5) of the Act was in the following the terms: 
"Section 1 above shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence which was committed before the commencement of that section."   
As the court noted in Aslam, the effect of that particular subsection was that if the confiscation proceedings did relate to an offence which was committed before the commencement of the section, then the relevant powers of the court were the powers under the previous statutory provisions.  In other words, the argument in Aslam was fairly and squarely on the same basis as the argument before us, albeit the statutory provisions are in slightly different terms.  They are however not in any material way different.  The court concluded that the prosecution in effect had a discretion as to the offences upon which they could ask for a confiscation order and, if they chose not to proceed on any offences which predated the commencement of the relevant Act, the court was entitled to exercise the powers of the later Act in relation to those offences rather than the former Act.  In other words, the statutory provision could be read in effect, in the following terms:  
"Section 1 above shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence in respect of which a confiscation order is or could be sought which was committed before the commencement of that section." 
7.	In the context of the present statutory provision, the judge concluded that those same words could in effect be read into paragraph 3 of the transitional provisions of the relevant statutory instrument.  It seems to us that unless there can be shown to be any proper distinction between the statutory regime with which we are concerned and that with which the court was concerned in Aslam, we in effect are bound to follow the reasoning in that case.  We note that the reasoning has been subject to criticism from Professor Thomas in [2005] Crim LR, 154. However, despite that criticism, we do not consider that we could properly say that the decision in Aslam was plainly wrong; and since the wording of the statutory provisions is in no material particular different, we conclude that the same consequence must follow in relation to the Proceeds of Crime Act 2002.  Accordingly, the court was entitled to apply the provisions of the 2002 Act to this particular case.
8.	There are, however, two other grounds upon which Mr Pepper seeks to rely in support of this appeal.  The first is that the effect of the Proceeds of Crime Act 2002 is more severe in relation to defendants such as the appellant than the previous statutory provisions.  The consequence is that in effect there has been a retrospective application by reason of the fact that two offences with which we are concerned predate the provisions of the Act, contrary to the general principles which preclude retrospective legislation.  That, in our judgment, simply misunderstands the effect of the application of the Proceeds of Crime Act 2002 in this case.  There is no doubt that it applied to the offences after March 2003.  If the prosecution had sought simply to rely upon those offences, there could be no doubt that the Proceeds of Crime Act regime would have applied.  The more Draconian ‑‑ if that is the right way of putting it ‑‑ effect of the criminal life‑style provisions would have been available to the court in the same way as they were applied in this case.  It follows that there is in effect no retrospective effect of the legislation.  The judge was not seeking to apply it retrospectively in any way.  He was applying the law, as he was entitled to, in relation to matters which had postdated March 2003.
9.	Turning then to the final ground of appeal, it is suggested that the judge in the present case was wrong to come to the conclusion that the appellant had failed to discharge the civil burden on her in relation to assets that she had.  It is necessary to say something very shortly about these assets.  She had in a bank account something in excess of £31,000.  The judge concluded that the right way to approach the confiscation order in the present case was to take the current balance of the accounts less the balance that had been in the account 6 years ago, that is before first of the offences with which she was charged and conclude, unless she was able to provide him with evidence to the contrary, that that sum represented the proceeds of her criminal activity.  The appellant, unhappily, has a history of alcoholism, which made it difficult for her to provide any coherent account of her life‑style during the relevant period.  The judge in those circumstances decided that there was no evidence that she had been working during the material period.  There was therefore no evidence of any income which could originate from a legitimate source.  In those circumstances there was no material upon which he could come to any other conclusion but that the assumption in relation to the sums in question had to be applied.  It is said that that was unfair to appellant.  The judge was wrong to come to the conclusion that he did.  It was clear that she was in serious difficulty in being able to give a coherent or any account to the court about her life and that, in those circumstances, the judge was wrong to hold that she had failed to discharge the burden that was on her.  
10.	One has simply to state the argument to appreciate that there is and can be no substance in it.  The judge was not only entitled to conclude that there was no evidence which could displace the assumption, he was bound to do so on the material before him.  Accordingly that ground of appeal fails also.  In those circumstances, we dismiss this appeal.
11.	MR BROWN:  There is still a restraint order which unless the money is paid into court, so I would ask your Lordship‑‑ 
12.	LORD JUSTICE LATHAM:  ‑‑ discharge the restraint order.  Are there any other matters?