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, 26 August 2010

1. MR JUSTICE SILBER: Barry Spearing renews his application for leave to appeal against a confiscation order which was made against him at the Crown Court at Ipswich on 1st April 2009. His initial application had been refused by the single judge.
2. On 30th January 2006 in the Crown Court at Ipswich, the applicant had been convicted in his absence of three counts of making fraudulent representations for a replacement land certificate contrary to section 116 of the Land Registration Act 1925, two counts of making a fraudulent disposal of property contrary to section 357(1) and 350(6) of the Insolvency Act 1986, one count of concealment of property contrary to section 354(1)(c) and section 350(6) of the Insolvency Act 1986, as well as four counts of using a false instrument contrary to section 3 of the Forgery and Counterfeiting Act 1981.
3. A warrant was issued for the applicant's arrest, but he did not appear on 21st April 2006 in the confiscation proceedings which were brought under the Criminal Justice Act 1988. At those proceedings, he was found to have benefited in the sum of £1,873,870 and his realisable assets were deemed to be the same amount. A confiscation order was made in that sum to be paid within seven days, with seven years' imprisonment in default, consecutive to any sentence imposed for the substantive offences.
4. Subsequently the applicant was arrested and on 1st April 2009 he was sentenced to a total of three years six months' imprisonment. It is unnecessary to explain how those sentences were made up because the only application for leave to appeal relates to the confiscation order.
5. The relevant facts are that the applicant was adjudged bankrupt on 1st September 2002, but shortly before the bankruptcy, six properties, of which five were in his sole name and one the matrimonial home which was held jointly with his wife, were sold to a British Virgin Island registered company for £990,000. It was necessary in order to facilitate that sale for the applicant to obtain duplicate land certificates for three of the properties on the basis he had lost the originals. The true position is that the original certificates were held by one of his creditors, Jabac Finance Limited.
6. From the proceeds of sale of the matrimonial home, the wife of the applicant received one half of the net proceeds and the entire proceeds of the antiques which comprised part of the contents of the matrimonial home. The prosecution alleged that the antiques were undersold at £100,000, as they had been insured for £750,000. The applicant and his wife remained in physical possession of the matrimonial home with all its furnishings and the antiques which had been sold for £100,000. Meanwhile the mothers of both the applicant and his wife remained in the properties they had previously occupied.
7. As at the date of the bankruptcy, the applicant had an overdraft with a National Westminster account in the sum of £268,453.96 with the majority of it having been obtained by paying in a four of a series of 12 signed but otherwise blank cheques drawn on the account of a business associate. The business associate had indeed entrusted the applicant to fill-in the cheques as directed in payment for the antiques which the applicant might supply to him.
8. It was also found that an assistant on the applicant's instructions had hired a van and had transported all the applicant's stock to other warehouse premises. The accounting records submitted to the Official Receiver had revealed that inbetween 1st August 2002 and 9th September 2002 there had been stocks totalling £257,170 while the sale of goods over that period amounted to £74,835.
9. The investigating officer stated in a statement of matters of relevance in accordance with section 73 of the 1988 Act (as amended) that there was a benefit of £2,430,604.20, which the judge re-calculated and re-assessed at £1,873,870.
10. The applicant, who was not present at the confiscation hearing, failed to satisfy the court that he could not satisfy the benefit figure and therefore a confiscation order was made in that sum of £1,873,870. The judge noted the applicant could always return to the court for an order for the sum to be varied pursuant to the provisions of section 83 of the 1988 Act.
11. The grounds of appeal are that the judge was wrong to proceed in the applicant's absence and that he should have postponed the hearing until the applicant was apprehended.
12. The case for the applicant therefore depends on there being some obligation on the part of the judge to defer holding confiscation proceedings until an absent defendant, who had also been absent during the trial, decided that he would re-appear.
13. The confiscation proceedings were, as we have indicated, conducted under Part 6 of the 1988 Act. There is nothing in those proceedings which precludes confiscation proceedings taking place in the absence of a defendant who decides to abscond. Nor can the applicant receive any assistance from either common law or the European Convention on Human Rights because in Jones [2003] 1 AC 1, the House of Lords held that when a defendant absconded from trial, he thereby waived his right to legal representation both at common law and under the European Convention. We would consider that by analogy this approach would also apply to confiscation proceedings, so that where a defendant absconds and leaves his legal representative without any instructions, this would, at common law at least, enable the court to continue with the confiscation hearing in his absence.
14. On behalf of the applicant, Mr Spence has made an ingenious submission that the matter should be considered by analogy to the provisions in section 6 of the Proceeds of Crime Act 2002. It is important to stress that that Act did not apply to these confiscation proceedings and in our view no assistance can be derived from it. But even if we are wrong on that, we consider that the wording of those statutory provisions provided no assistance whatsoever for the applicant. Mr Spence relies on section 6 of the Act which says that:

"1. The Crown Court must proceed under this section if the following conditions are satisfied..."

Various conditions are then set out. It is also explained in section 6(8) of the Act that those conditions would not be satisfied if the defendant had absconded.

15. In our view no assistance can be derived from this provision, not merely because it was not in force, but also because it does not apply to these proceedings, but more importantly because it merely states that "the Crown Court must proceed under this section". It does not say that there are no other circumstances in which the court can proceed. In other words, there is no inhibition or prohibition preventing the proceedings going ahead.
16. In our view there is nothing wrong whatsoever about the way in which the judge permitted the hearing to proceed bearing in mind the assessment of benefit was straightforward arising from the offences of which the applicant had been convicted and in reliance on evidence that had been served on the applicant during his trial. There is after all in section 83 of the Act, a provision which enables the applicant to apply to the court for a variation of the order.
17. We have come to the conclusion that the decision of the trial judge to exercise his discretion in favour of making a confiscation order in the absence of the applicant cannot be criticised. Indeed, if this were not the case, it would mean that every defendant who has been convicted of these sort of fraudulent offences could avoid having a confiscation order being made against him if he disappears and cannot be found. That cannot have been the intention of the legislature.
18. We should also add that it is clear that the proceedings were conducted with appropriate fairness. Counsel for the prosecution put forward grounds as to the value of the benefit and those were to some extent for the assistance of the applicant and this, as we have explained, led to the reduction of the benefit figure. It is worthy of note that no complaint has been made about the accuracy of those figures. Thus, notwithstanding the ingenious submissions of Mr Spence, we have concluded that the single judge was quite right to refuse this application.