England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 3rd April 2008

1. Mr Justice Forbes: On 4th November 2005, in the Canterbury Crown Court on an indictment containing 17 counts, this appellant pleaded guilty on rearraignment to 12 counts of facilitating the acquisition, retention, use or control of criminal property contrary to section 328(1) of the Proceeds of Crime Act 2002 (hereafter "the 2002 Act"). The counts in question were counts 6 to 17 inclusive. On 5th December 2005 he was sentenced to concurrent terms of four years' imprisonment on each count. On 20th December 2006 a confiscation order was made pursuant to the terms of section 6 of the 2002 Act in the sum of £53,745.98 to be paid within six months with 19 months' imprisonment in default of payment. Counts 1 to 5, which charged the appellant with a further five similar offences contrary to section 328(1) of the 2002 Act, were ordered to remain on the file on the usual terms.
2. The appellant now appeals against the confiscation order by leave of the single judge.
3. The brief facts are these. The appellant had been involved in an attempt to ship 12 stolen cars to Africa and the West Indies during the period 13th July 2004 to 26th August 2004. The various counts on the indictment represented in turn the stolen vehicles that were recovered by police officers from containers that had been prepared for shipping by the appellant. The appellant admitted that he suspected that the cars loaded into those containers had been stolen. The vehicles involved were almost exclusively high value luxury cars; in the main BMW and Mercedes. They were to be shipped, two at a time, in 40 foot containers by the appellant from Felixstowe and Portsmouth. In most cases the vehicles had been stolen from the owners' premises during the course of burglary in which the vehicles' keys were taken so that the vehicles could be driven away without any damage. However, in other cases owners were actually robbed of their cars whilst driving them. It was accepted, however, that the appellant never suspected or believed that the cars in question had been stolen as the result of violent crime.
4. There was a written basis of plea that was accepted by the Crown, in part, in the following terms:

"2. The defendant had a legitimate business as an exporter of goods, cars, household items et cetera to the locations overseas. Agreed.

3. Between 13th July 2004 to 26th August 2004 he attempted to export 12 cars as per the indictment. These cars were stolen and as such represented the proceeds of another person's crimes. Agreed.

4. The defendant suspected that the cars represented another's benefit from the crime and the defendant entered into an arrangement to export the cars which he suspected would facilitate the control of the car by another. Agreed.

5. He never suspected or believed that the cars were the result of violent crime. Agreed.

6. Although the defendant realised that the cars were of high value, he never realised that they were worth so much and did not have a physical or mental record of the cumulative value that the 12 cars represented. Not agreed.

7. The only money that the defendant received as a result of the export of these cars was the amount that was paid to him in line with his normal rates. Not agreed.

9. The defendant has no relevant previous convictions. Agreed."

5. It is to be noted that in the written basis of plea there is no indication by the appellant as to either the identities or the numbers of other persons involved in this criminal enterprise.
6. Once the vehicles had been stolen it was the appellant who arranged for their export out of the United Kingdom, using the cover of the legitimate export business that he ran from his home address at 885 Romford Road, Manor Park, London E12. It was the appellant who arranged to purchase containers from London Container Services of Rainham, Essex. The containers were then delivered to his yard at Billet Road, Romford. The appellant would then prepare a standard shipping note for each shipped container and arrange for the container to be taken to the docks and shipped overseas.
7. At the confiscation hearing the judge concluded, correctly, that the total value of the vehicles, namely £273,400, was the benefit accruing to the appellant from his criminal conduct: see the terms of the 2002 Act. It was common ground between the parties that the appellant's realisable assets amounted to £53,45.98 and that this, therefore, represented the recoverable amount.
8. In the course of the confiscation proceedings the judge queried whether the fact that all the vehicles had been recovered would satisfy the payment of the benefit figure and thus result in the non-imposition of a confiscation order. However, the prosecution pointed out that the appellant had not given value for the benefit and submitted that the 2002 Act was enacted to ensure that a defendant paid for the benefit he had received in committing the offences in question. The prosecution argued that the fact that the property had been recovered was entirely beside the point and that the appellant had to pay for the fact that he had been involved in a crime which brought him a benefit of £273,400.
9. The prosecution submitted that if the appellant had the requisite assets he would be required to pay that amount in full. The prosecution accepted that the appellant's realisable assets amounted to £53,745.98 and argued that the confiscation order should be made in that amount. In short, it was submitted that once the judge had determined that there had been a benefit in a specified figure, he had no further discretion in the circumstances of this case and was obliged to make the confiscation order.
10. It is to be noted that it is common ground that section 6(6) of the 2002 Act was not in play in this particular case. Under that subsection the court's obligation to impose a confiscation order becomes a power if the court believes that any victim of the conduct had at any time started or intended to start proceedings against the defendant in respect of the loss, injury or damage sustained in connection with the conduct. Mr Walker made it clear that it was common ground that that particular subsection was not in play. Accordingly, the judge was under a duty under the terms of the 2002 Act to make the order that he did.
11. However, on behalf of the appellant Mr Monteith submitted to the judge that in the circumstances prevailing the imposition of a confiscation order was not fair and it did not serve the legislative purpose. He contended that no order should be made. Further, he submitted that there appeared to be no authority that would prohibit the judge from refraining to make an order, or, if an order was to be made, from setting a zero confiscation order.
12. In our judgment, Mr Monteith's submissions to the judge were plainly wrong, having regard to (inter alia) the decisions of this court in cases such as R v Wilkes [2003] EWCA Crim 848 and R v Farquhar [2008] All ER (D)140, [2008] EWCA Crim 806, judgment delivered on 11th March 2008.
13. In the event, the judge ruled that under the terms of the 2002 Act the court was not entitled to take into account the fact that the vehicles had been recovered. In a short ruling the judge said this:

"A considerable time has been spent today in relation to the question of the recoverable amount in respect of these confiscation proceedings. The assumption that the court has made is that the benefit accruing to Mr Fedee in relation to his criminal conduct is the value of the motor cars that he was involved with -- the value amounts to a total of £273,400. The vehicles were all recovered.

This court has no discretion to offset the value of those recovered motor vehicles when considering the recoverable amount.

Mr Monteith urges upon this court that the legislation -- namely the Proceeds of Crime Act 2002 -- would in fact allow the court to adjust the benefit sum to zero.

Mr Walker for the Crown effectively says that the court has no such power.

This is draconian legislation and the court must follow that legislation to the letter and the intentions of Parliament, and therefore having found that the benefit is £273,400 and the recoverable amount is in the agreed sum of £53,748.98, then an order in that sum must be made, and so I make such a confiscation order."

14. Although the judge had expressed his ruling in a very succinct form, he was plainly correct as consideration of the cases of Wilkes and Farquhar make clear.
15. On behalf of the appellant Mr Monteith originally submitted in his written grounds of appeal that the judge had erred in imposing the confiscation order in question. It was submitted that the judge had originally wished to impose a confiscation order in a zero amount, but had then concluded that the legislation was draconian and must be followed to the letter with the result that he imposed the confiscation order in question. Mr Monteith originally submitted that the imposition of the confiscation order was contrary to the judge's initial intention and/or the legislative purpose of the 2002 Act. He also submitted that it was contrary to Article 1 of the European Convention on Human Rights and/or was unfair and oppressive. Accordingly, the judge should not have imposed any confiscation order at all, or, at the very least, should have made it a zero amount.
16. At the very outset of today's proceedings, and in the light of the authorities, and, in particular, Wilkes and Farquar (see above), Mr Monteith very properly conceded that there was no substance in that ground and abandoned it.
17. He took a similar course with regard to the second ground that he had originally put forward, which was as follows. It was submitted that the judge had erred in finding that the benefit figure was £273,400. Mr Monteith originally suggested that the prosecution had relied on the value of the cars contained within the various counts on the indictment, but it was Mr Monteith's original submission that the correct figure for the benefit should have been something that reflected the amount actually received by the appellant as the result of his involvement in the export of the cars in question. According to Mr Monteith, the amount in question that he was paid was in line with his normal rates in such matters. Again, as we have already indicated, in the light of the authorities Mr Monteith very properly abandoned that ground of appeal which is plainly wrong.
18. However, Mr Monteith did put forward a final ground of appeal, which was that the judge had erred in not apportioning the benefit between those who must have been involved in the offence and the appellant. Mr Monteith contended that the benefit in a case such as this should be apportioned between those who are clearly involved. The apportionment, he submitted, should directly relate to the benefit actually received and that such an approach is both fair and just. In the course of his submissions he made it clear that he would wish to have this hearing adjourned to await the outcome of an appeal currently before their Lordships' House in the case of May, Lawrence, Fowles, Bravard and Stapleton [2005] EWCA Crim 97. However, Mr Monteith was unable to identify any particular aspect of that case which would be of assistance in the submissions that he put forward to this court in general terms with regard to this ground of appeal.
19. In our judgment, whether their Lordships' House adopts a different approach with regard to apportionment between defendants to that which currently applies, which is to the effect that there is no such right to apportionment, the difficulty facing Mr Monteith is that it would have been quite impossible for the judge to have carried out any such exercise as a way of dealing with the matter. In our judgment what Mr Monteith was seeking to argue was, in effect, a way of finessing the result of the judge's conclusion with regard to the benefit established for the purposes of the Act and the consequential order with regard to the realisable recoverable amount.
20. However, as we have just observed, the judge could not have carried out any such apportionment, in any event, because there was no information whatsoever with regard to the numbers or identities of any other persons involved in the criminal enterprise. In our judgment it is wholly unsatisfactory to suggest, as Mr Monteith did, that the court should approach the matter on the basis that there must have been others involved, that their involvement was likely to have been more significant than the appellant's and that the appellant's contribution to the overall recoverable amount and/or the benefit should be measured by the amount that he claimed to have received for having carried out his part in the criminal enterprise.
21. We are entirely satisfied that there is no substance in that submission. We do not consider that it is necessary to adjourn these proceedings to await the outcome of May and Others in their Lordships' House. Mr Monteith was unable to identify any particular aspect of that case which might result in a ruling by their Lordships to his client's advantage. We are satisfied there is nothing in this ground of appeal.
22. Accordingly, for all those reasons, this appeal is dismissed.
23. MR MONTEITH: My Lord, could I just mention this? In fact the money hasn't been paid. I imagine pending the appeal it hasn't been. I rise to see whether further time can be allowed for the confiscation order to be met?
24. LORD JUSTICE PILL: Mr Walker, what do say about that?
25. MR WALKER: My Lord, I have no instructions as to the position of the payment under the order hitherto, but I can't object to some further time being given.
26. LORD JUSTICE PILL: What I have been told on other similar occasions is that those instructing you do have regard to the need to give further time.
27. MR WALKER: Yes, my Lord.
28. LORD JUSTICE PILL: But the time has elapsed, has it, under the original sentence?
29. MR MONTEITH: My Lord, six months was given to pay, so, yes.
30. LORD JUSTICE PILL: How long are you asking for?
31. MR MONTEITH: Could I try your Lordship's patience too much, but could I ask for another six months, please?
32. LORD JUSTICE PILL: Mr Walker?
33. MR WALKER: Don't object, my Lord.

(Pause)

34. LORD JUSTICE PILL: Yes, the circumstances are rather different. I am told he is present. The appellant is not in custody, so he will have had time to make contingent arrangements.
35. MR MONTEITH: My Lord, I don't want --
36. LORD JUSTICE PILL: The original sentence would be based on the fact that he would have been in custody during the period concerned.
37. MR MONTEITH: I don't want to be unkind to the appellant because he is here.
38. LORD JUSTICE PILL: He is here? Do you want to take instructions?
39. MR MONTEITH: Can I say before I do that in my experience it would be prudent, in my respectful submission, to allow the six months, just knowing the appellant.
40. LORD JUSTICE PILL: Yes. (Pause). Anything further? I saw you speaking to who I believe to be your client.
41. MR MONTEITH: I apologise for turning my back. Part of the money is in a solicitor's account. That was always known to the Crown. There is a further amount, it seems to be around £10,000, that causes more difficulty, as I understand it from my brief conversation. In those circumstances, in my respectful submission and for other reasons, it seems, I hope prudent, to allow six months, or as close to it as the court can.

(Pause)

42. LORD JUSTICE PILL: Three months from today's date.
43. MR MONTEITH: Thank you very much.
44. LORD JUSTICE PILL: In default of which the alternative takes effect. Thank you.