England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SHREWSBURY CROWN COURT
His Honour Judge Barrie
T20050206

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/12/2013

Mr Justice Irwin:

1. On 13 January 2006, in the Shrewsbury Crown Court, the Appellant pleaded guilty to eight offences of drug dealing. On 16 February he was sentenced by His Honour Judge Onions as follows: on counts 1,7 and 8, supplying crack cocaine, five years imprisonment; on count 2 supplying heroin, 5 years imprisonment and on counts 3,4,5, and 6, being concerned in the supply of crack cocaine, five years imprisonment on each count, all sentences to be served concurrently.
2. On 22 September 2006, His Honour Judge Onions imposed a confiscation order under the Proceeds of Crime Act 2002 in the sum of £9,520, with six months to pay and six months additional imprisonment in default, consecutive to any custodial term which he was liable to serve for the substantive offences. In the course of the confiscation order, the Judge found that the Appellant had benefitted from his offending to the extent of £156,226.74. The amount of the confiscation order was determined by the available realisable assets at the time of the order. The confiscation order was satisfied in time by the Appellant.
3. On 14 May 2012, His Honour Judge Barrie made a restraint order against the Appellant and his company in order to secure funds to enable a reconsideration of the amount available for a revised confiscation order, pursuant to Section 22 of the Proceeds of Crime Act 2002 ["POCA"].
4. On 14 February 2013, HHJ Barrie imposed a confiscation order under POCA in the sum of £74,652.02 with £63,000 to be paid within 28 days and the balance to be paid within 6 months, and a further sentence of 12 months imprisonment in default.
5. The Appellant appeals against the confiscation order imposed by HHJ Barrie by leave of the Single Judge.

The Facts

6. The facts of the Appellant's offending are not central to this appeal. It is sufficient to say that undercover officers, operating in Telford, Shropshire, detected and made test purchases from the Appellant in May and July 2005. They were able to buy crack cocaine, cocaine and heroin on a number of occasions. The Appellant was arrested in October 2005. His house was searched and £6,665 in cash was found concealed in the premises. In interview, the Appellant denied the transactions with the undercover officers but admitted dealing in drugs, earning around £800 per week.
7. The original confiscation order was based on the cash found at the premises and the other available asset, the value of a car. As we have indicated, the confiscation order was satisfied. The Appellant served his sentence and was released from prison in November 2008.
8. At the time of his offending, the Appellant was 22 years old. At his release from prison he was 25 years old.

The Appellant's Subsequent History

9. In June 2009, the Appellant began work for a company called Collision Claims and was paid a monthly salary. Through this employment he learnt about credit hire and, on his own case, built up a range of contacts in the car hire business. In September 2010 he set up a business called "Hire Me a Car". In May 2011, he formed a limited company and from that point conducted his business through the company, although as the Judge observed in the course of his ruling, the extent to which company funds were held separately from personal funds was in many instances unclear.
10. In early 2012, the Crown received information about the Appellant's assets which led them to seek to re-open matters pursuant to Section 22 of POCA, initially by obtaining the restraint order as we have indicated, and then pursuing a substantive application under the section. There is a suggestion in one of the Appellant's statements that the restraint order itself effectively prevented the company from further trading, although the matter was never fully clarified. Certainly on the Respondent's case the restraint order was amended so as to affect only personal funds. We are not clear as to the date of the amendment of the order, nor finally as to its effect.

The Application

11. The basis of the application appears in the Crown's statement of information of February 2013. The statement was prepared by WDC Partington and begins as follows:

"The Prosecutor has requested that the court proceed to re-consider the available amount for confiscation under section 22(1)(c) of [POCA]……. It is considered appropriate for the court to proceed under section 22 (4), as it is believed that the Defendant has acquired sufficient means to satisfy, or satisfy in part, a confiscation order made against him in a crown court, for which there is an outstanding balance and for which the amount required to be paid at the time was the amount found under section 7(2)."

12. This opening passage from the application confirms a cardinal point in this case. This is not a case where there is any suggestion that the Appellant concealed assets at the time of the original order, which have subsequently been discovered. At all stages, the case has proceeded on the basis that the assets are legitimate and were acquired after the conclusion of the Appellant's prison sentence.
13. The statement proceeds in the conventional fashion to analyse the Appellant's assets. It is not necessary for this judgment to consider any of that detail save to note that there is a discrete point taken in respect of the Appellant's share in the equity of his former matrimonial home, 18 Hornet Way, Telford. We will address that point briefly below.
14. After analysing the assets, the application concludes as follows:

"6.6. The outstanding balance of the Defendant's confiscation order is £146,706.04. I believe that unless the Defendant can show otherwise, the amount now available for uplift to satisfy the original Confiscation order is £103,162.41.

6.7. This does not include the assets attributable to the company "Hire Me a Car Ltd".

6.8. The Defendant has attempted to show that the funds in his bank accounts have been derived legitimately and therefore should not be confiscated to satisfy the original confiscation order. However, section 22(3) states that:

"in a case where this section applies the court must make the new calculation, and in doing so must apply section 9 as if references to the time the confiscation order is made were to the time of the new calculation and as if reference to the date of the confiscation order were to the date of the new calculation."

Section 9 clearly states that the available amount is:

"the aggregate of the total of the values (at the time the Confiscation order is made) of all the free property then held by the Defendant minus the total amount payable in the pursuance of obligations which then have priority and the total of the values (at that time) of all tainted gifts"

I respectfully suggest that all of the Defendant's restrained assets are in fact free property for the purpose of this Act.

6.9. Therefore the amount which the court may order to be confiscated under Section 22 of [POCA] is £103,162.4.41."

The Legislation

15. The relevant passages from Section 22 of POCA read as follows:

"(1) This section applies if-

(a) a court has made a confiscation order,

(b) the amount required to be paid was the amount found under section 7(2)………………

……….

(3) In a case where this section applies the court must make the new calculation, and in doing, so it must apply section 9 as if references to the time the confiscation order is made were to the time of the new calculation and as if reference to the date of the confiscation order were to the date of the new calculation.

(4) If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as-

(a) it believes is just, but

(b) does not exceed the amount found as the defendant's benefit from the conduct concerned.

(5) In deciding what is just the court must have regard in particular to – [……………]

(7) In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

(8) The relevant amount is-

(a) the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;

(b) the amount last found as the available amount in pursuance of this section, if this section has applied previously.

(9) The amount found as the defendant's benefit from the conduct concerned is-

(a) the amount so found when the confiscation order was made, or

(b) if one or more new calculations of the defendant's benefit have been made under section 21 the amount found on the occasion of the last such calculation."

Submissions

16. In written submissions to the judge, the Appellant's counsel made several principal points. Firstly, he accepted that the criteria within section 22 (1)(a) and (b) were made out. There was no submission that the Crown could not make the application. Secondly, the Appellant conceded that the effect of section 22(3) is to place upon the court a duty "to make a new calculation ….as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation." In other words it was submitted and agreed that Judge Barrie had to consider the evidence as at the date of the hearing before him.
17. Critically, the Appellant's counsel relied upon that passage from section 22(4) emphasising the discretion of the court: "the court may vary the order by substituting for the amount required to be paid such amount as it believes is just".
18. In his written submissions the Appellant's counsel argued that the application was subject to Article 6 of European Convention of Human Rights. The application fell to be determined over six years after the original order was made. The period which had elapsed was a factor to be taken into consideration when considering the exercise of discretion and, in considering what was "just" the court had to consider Article 6 of the Convention.
19. It was submitted that the Appellant should not be ordered to pay any further sums pursuant to the application. The matter was put this way:

"There comes a time ….when rehabilitation should be encouraged. Mr Padda has set up a legitimate business which trades in car hire. In all the circumstances of this case, "what is just" should take into consideration such factors as the period over which Mr Padda has been released, his legitimate activity in the car hire business, the legitimate sources of the money upon which the prosecutor relies in support of the application the period of time which has elapsed since the original order, the efforts towards rehabilitation, and the impact any such order would have upon his business and any other legitimate activity."

20. It is clear that the Appellant made consistent oral submissions to His Honour Judge Barrie. The Judge was referred to a number of cases notably, two decisions of the Supreme Court. The first authority is In re Peacock (Secretary of State for the Home Department intervening) [2012] 1 WLR 550 [2012] UK SC5. The Crown relied on that case to establish that it was proper, under Section 22 of POCA, to revise upwards the amount recoverable. It also seems that reference was made before the Judge to the later authority of R –v- Waya [2012] UKSC 51. However it is not altogether clear what were the relevant arguments sought to be elicited from this authority before the Judge.

The Ruling

21. Early in his ruling, the learned judge met directly the submissions as to the limit of his power under the Act and as to how he should exercise that power:

"Under sub-section 4 of section 22 I have the power to make an order in relation to such amounts as I believe to be just. And much of the discussion this afternoon has been in relation to the approach I ought to take to what is just, in the circumstances that have arisen for Mr Padda. And that is a completely open-ended question. Although the statute identifies some specific considerations that do not arise in this case, there is an overriding requirement that I should look broadly at the justice of the situation, from every point of view.

However the background to that consideration is this. That the scope of confiscation proceedings under the 2002 Act is often something which comes as a surprise to defendants who are pursued under these provisions, because the purpose of the legislation is to deprive criminals of a benefit that they have achieved from their criminal conduct that led up to their conviction, and it is not interested really in the source of the resources from which they might be expected to make good to the State the repayment of that benefit.

And so the Supreme Court in the decision in the case of Peacock [reference given] affirmed that it is entirely consistent with the purpose of the legislation which I have to deal with. The prosecution should ask the court to come along sometime after conviction, after a first payment has been made, when a defendant has subsequently come into further assets through entirely legitimate means, and ask the court to say that he is now in a position to make a further partial or complete payment towards what remains outstanding and the confiscation that was originally ordered.

What is said in this case is that it is very unfair and unjust to penalise Mr Padda for having worked hard and had some success in the enterprise that he started up after his release from prison. Of course, it is commendable that he has worked hard in an honest business and done well at it, and it shows the ability that he has, which I am sure will stand him in good stead in the future. But the fact that the court is now asked to look at earnings he has achieved through his own good work and business sense is not an answer to the application that the prosecution makes."

22. The Judge went on to note that this was not a case of concealed assets. The distinction between what was business expenditure and income and the Appellant's personal financial affairs were not always clear, but he was not particularly critical of the Appellant in that regard, on the facts of this case. He noted that the Crown sought only to look to the Appellant's personal resources to satisfy any further payment and not those of the company. The Judge noted that he was invited by the Appellant's counsel to take a broad-brush view: to "fix on a fair figure which meets the requirements of section 22(4), [so] that the amount that I order should be just".
23. The Judge went on to deal with specific items, ruling that the sums held in three bank accounts were in fact to be treated as personal assets rather than company assets. That finding represented a rejection of the Appellant's evidence on the point. He considered the equity in the former matrimonial home, ascribing half the equity to the Appellant but rounding down the value by reference to the difficult state of the property market. He reached a round figure valuation in relation to a Volkswagen Golf motor car. He deducted from his running total a sum of £4000 to represent cost of living expenses which fell to be repaid to the Appellant's brother. At the end of that process the Judge came to a total of £74,652. He then went on in his ruling as following:

"That is approximately half the outstanding amount in relation to the original confiscation order. And I stand back from that and I look at it broadly, in terms of the circumstances that Mr Padda has been in, the business that he has run since he came out of custody and, as I say, the total liability under the original confiscation proceedings; and I ask myself whether it is just to make an order that he should pay a sum of that order, the majority of which, by a large measure, he can meet out of cash that is available in bank accounts in his own name. I have come to the conclusion that there is no just reason why I should not find that the available amount in relation to this confiscation order is now that sum and so my finding is that, looking at the matters as things stand today – as I must – the available amount today is £74,652 and I make a recovery order for the payment of that amount."

The Judge went on to make directions as to the timing of payments and the period of imprisonment in default.

The Grounds of Appeal

24. The submissions made on appeal by the Appellant can be summarised as follows. Firstly, he criticises the Judge for taking no or no sufficient account of the decision of the Supreme Court in Waya. Secondly, it is said that the judge took insufficient account of the time passing between the original confiscation order in September 2006 and his ruling in February 2013. It is not submitted that this factor on its own was a bar to making such an order, but it is said it was a relevant factor in assessing the justice of the order and in deciding whether the order was compliant with Article 6 of The European Convention. Thirdly, it is said the Judge paid no sufficient attention to the fact that the Appellant had acquired his assets legitimately. Again, this is not advanced as a bar to the order, but as a factor to be weighed in the balance.
25. Underlying these submissions is the recognition that there are in essence two competing arguments bearing on the exercise of the Judge's discretion. Firstly, it is undoubtedly the policy of the legislation to maximise the recovery of assets from those responsible for serious crime. Secondly, as emphasised by the Appellant, there could be said to be a public interest in the rehabilitation of offenders and a need to encourage those guilty of serious offences to act in a legitimate way, once they have served whatever sentence has been imposed upon them and, as a corollary of such encouragement, not to cause or permit a perverse incentive either to revert to crime or to seek to conceal assets even where they come from a legitimate source.
26. There is a further specific ground of appeal advanced that the Judge was wrong to conclude as he did, that he had heard no evidence to dissuade him from the view that the Appellant's relative had not provided the deposit to the house at 18 Hornet Way as a gift. It was on that basis that the Judge took the view that the Appellant was entitled to half of the equity and that this was an available asset. We address this particular ground of appeal as a discrete matter later in this judgment.
27. It appears to have been common ground between the parties that the Judge's exercise of his discretion under the Act can only properly be overturned on appeal if his decision was unreasonable in the Wednesbury sense, see Associated Provincial Picture Houses –v- Wednesbury Corporation [1948] 1KB 223. This was an error. The appropriate remedy here is an appeal to this court pursuant to the Criminal Appeals Act 1968, and therefore the test is whether the confiscation order was wrong in principle or manifestly excessive.
28. The Crown's submissions are in essence that the Judge approached this matter in a correct legal fashion and exercised his discretion fairly. He followed the correct statutory regime. The formulation under section 16 of the 1994 Act was said by counsel to be identical to that under POCA. The Judge had his attention drawn to paragraph 14 of Waya, although he made no reference to that case. He was careful to make an order only in respect of personal as opposed to company assets.
29. In regard to the matter of time elapsed before confiscation was revisited, Miss Jackson for the Crown made reference to the periods which had elapsed in reported cases: in Peacock it was 10 years, in R –v- Lily Lee [2012] EWCA Crim 954 it was just under three years in R –v- Tivnan (1999) 1 CAR(S) 92 it was a period of five years. She therefore submitted that the period of 6½ years in this case was within the range.

The Authorities

30. In the Peacock case the Supreme Court was considering a confiscation order made against an appellant under the Drug Trafficking Act 1994. The 1994 Act contains a similar provision to S.22 of POCA. The relevant words from section 16 of the 1994 Act read as follows:

"16. Increase in realisable property.

(1) This section applies where, by virtue of section 5(3) of this Act, the amount which a person is ordered to pay by a confiscation order is less than the amount assessed to be the value of his proceeds of drug trafficking.

(2) If, on an application made in accordance with subsection (3) below, the High Court is satisfied that the amount that might be realised in the case of the person in question is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased) the court shall issue a certificate to that effect, giving the court's reasons.

(3) ………….

(4) Where a certificate has been issued under subsection (2) above the prosecutor may apply to the Crown Court for an increase in the amount to be recovered under the confiscation order, and on that application the court may-

(a) substitute for that amount such amount (not exceeding the amount assessed as the value referred to in subsection (1) above) as appears to the court to be appropriate having regard to the amount now shown to be realisable; and

(b) increase the term of imprisonment or detention fixed in respect of the confiscation order …………………"

It will be seen that the 1994 Act uses the term "appropriate" rather than "just". The provisions are otherwise of similar effect, despite rather different procedure.

31. The first point in Peacock was whether POCA had abrogated the confiscation regime under the 1994 Act and replaced it with the regime under the 2002 Act. The Supreme Court rejected that argument, and the matter thus fell to be decided under the 1994 Act. By a majority, Lord Hope and Lady Hale dissenting, the Court decided that "after acquired property" could properly be taken into account under the 1994 regime.
32. The leading judgment of the court was given by Lord Brown and begins in the following terms:

"1. Suppose that a convicted drug trafficker is found to have benefited from his trafficking to the extent of £1M but, having at the time realisable property worth only £100,000, a confiscation order is initially made against him just for this lesser sum. Suppose then that the defendant, entirely legitimately, later acquires property to the value of upwards of further £900,000. Is he at that stage liable to a further court order increasing to the full extent of his criminal gain the amount recoverable under the confiscation order by reference to these after acquired assets?

2. It is not in doubt that, assuming his offences were committed after 24 March 2003, and that he were therefore subject to the provisions of the Proceeds of Crime Act 2002 ("POCA"), the answer would be a clear "yes"; see particularly section 22(3) of POCA. "

33. It follows that there is no doubt about the capacity of the court to make such an order as was reached in this case.
34. The court went on to consider the approach to such an order under the 1994 legislation. This point was addressed by Lord Brown in the following terms:

"26. The main argument in support of the appellant's case is that it is unfair and counter-productive to increase the amount of a confiscation order by reference to after-acquired assets. This, it is said, would militate against his reform and rehabilitation and be likely to discourage him (once he has satisfied any initial confiscation order and been released from any sentence of imprisonment) from engaging in lawful and openly profitable employment. And, of course, the longer after conviction it is sought to confiscate after-acquired assets, the more unfair it may appear. Such no doubt were the considerations which led the House of Lords in Re Maye [2008] 1 WLR 315 and in R –v- May [2008] AC 1028 to leave open what Lord Scott in Re Maye, para 24 called this "important and difficult" question for later decision.

…….

29. As for the main argument, based on fairness and rehabilitation, naturally I recognise Parliament could have chosen a different policy with regard to after-acquired assets. But it seems to me perfectly understandable that in fact Parliament decided (as indisputably it did when later enacting POCA) to leave it open to the courts as a matter of discretion to mulct a defendant of his criminal gains on an ongoing basis irrespective of precisely how and when he came by any increased wealth.

30. That the court does indeed have a discretion in the matter is plain ……..This is not, however, the occasion to explore the approach to the proper exercise of that discretion – or, indeed, the question whether its exercise could ever be affected by considerations arising under the Human Rights Act 1998. As already noted, there is no challenge here to the exercise of the Crown Court's……discretion, only to whether the section 16(2) certificate was lawfully issued."

35. Lord Walker went on to re-state useful clarification of the expression "after-acquired property" in paragraph 35 in the following terms:

"A newly-acquired asset may be obtained in place of another asset in numerous ways: for instance, by making changes in a portfolio of investments, or by remortgaging a house in order to pay the deposit on a second house, or by receiving cash on the surrender or maturity of a life policy. These may be termed substituted assets but they are not after-acquired property in the relevant sense, that is property accruing to a person (whether as earnings or by gift, inheritance or some other windfall) without a corresponding diminution in that person's existing assets."

It is necessary to keep in mind that the debate in Peacock, and in the instant case, concerns "after-acquired property" in the clear, and narrower, sense as defined by Lord Walker. Different considerations would arise in cases dealing with "substituted" assets.

36. In our judgment, it follows from the passages quoted, above that Peacock addresses the existence of the jurisdiction under the 1994 Act, but does not lay down specific guidance as to what may be the proper approach to deciding what is "appropriate" within S.16 (or "just" within POCA S.22).
37. In Waya the Supreme Court was considering the impact of the Human Rights Act 1998 ["HRA"] on Part 2 of POCA. As is explained in paragraph 1 of the majority judgment, such was the difficulty of the questions addressed that the appeal, originally heard by a court of seven justices, was listed to be re-argued before a court of nine. In understanding the decision of the court it should be noted that, although Lord Phillips and Lord Reed dissented in the outcome, they fully assented to the principal passages in the judgment set out in paragraphs 1 – 34 .Thus those paragraphs represent the unanimous view of the Supreme Court.
38. Lord Walker and Sir Anthony Hughes (as he then was), in giving the majority judgment, began with a review of the developing legislation which culminated in POCA. They emphasised how the successive waves of legislation limited judicial discretion. In paragraph 4 they said:

"The 1995 Act removed from the Crown Court almost all discretion as to the making or quantum of a confiscation order, if it was applied for by the prosecution and the statutory requirements were satisfied. That remains the position under POCA. The Crown Court no longer has any power to use its discretion so as to mould the confiscation order to fit the facts and the justice of the case, even though a confiscation order may arise in every kind of crime from which the defendant has benefited, however briefly. The Crown Court has encountered many difficulties in applying POCA's strict regime. Many of the complexities and difficulties of confiscation cases, arising from the extremely involved statutory language, would undoubtedly be avoided if a measure of discretion were restored, but whether to restore it, and if so in which form, is a matter for Parliament and not for the courts."

39. The court went on to analyse those statutory provisions contained in Part 2 of POCA which import "two general features of central importance to its structure", those being the steps establishing that a defendant is to be treated as having a criminal lifestyle, and the three stage process involved in the making and establishing of the quantum of a confiscation order. It is not necessary for us to recapitulate that analysis. However it is critical to a proper understanding of the decision in Waya, to keep in mind that the court was considering the impact of the HRA on those provisions of POCA where the general discretion of the judge has been confined by these statutory assumptions as to lifestyle and as to the making and quantum of a confiscation order set out in Part 2 of the Act. The central concern of the Supreme Court in paragraphs 1 to 34 was to address the potential infringement by the confiscation regime of Article 1 of the First Protocol to the European Convention on Human Rights ["A1 P1"]: see paragraphs 10 to 22 inclusive of the report. The central question can be expressed as: do the various statutory assumptions within the POCA scheme, confining as they do the court's discretion "to mould the confiscation order to fit the facts of the justice of the case", give rise to a conflict with A1 P1, and if they do, how should that conflict be resolved?
40. The broad answer from the court was that, in operating the statutory scheme, judges must refuse to make a confiscation order which, because it was disproportionate, would result in an infringement of the convention rights arising under A1 P1. However, the court expressly distinguished that obligation from a:

"Recreation by another route of the general discretion once available to judges but deliberately removed. An order which the judge would not have made as a matter of discretion does not thereby ipso facto become disproportionate. So to treat the jurisdiction would be to ignore the rule that the parliamentary objective must, so long as proportionately applied, be respected."

41. By implication, the distinction between an unfettered discretion to reach the just result and the limits imposed by the obligation to avoid an infringement of A1 P1, are made clear in paragraph 25 of the judgment. In that paragraph the court set out the effect of the statutory test for a criminal lifestyle and the assumptions involved, but concluded:

"The combinations of these provisions, and especially [section 10(6)(b)] ought to mean that to the extent that a confiscation order in a lifestyle case is based on assumptions, it ought not, except in very unusual circumstances, court the danger of being disproportionate because those assumptions will only be applied if they can be made without risk of serious injustice."

As a matter of language and logic, this can readily be distinguished from the requirement in section 22 that a judge "may vary the order by substituting …..such amount as he believes is just". In our judgment, the latter formulation does indeed preserve a discretion to limit the additional payment to what is "just", not merely an obligation to avoid an infringement of A1 P1.

42. That discretion must of course be exercised in a way intended to "give effect to Parliament's intention as expressed in the language of the statute. The statutory language must be given a fair and purposive construction in order to give effect to its legislative policy": see Waya paragraph 8. It is perfectly clear that the policy underlying POCA and its predecessors places a high priority on the recovery of the proceeds of crime. It is central to the scheme of the legislation that, at the time when a principal confiscation order is made:

"Even if the proceeds have been spent, a confiscation order up to the value of the proceeds will follow against legitimately acquired assets to the extent that they are available for realisation."

See Waya paragraph 27.

43. In our view, the matter is clearly stated, albeit in relation to the 1994 Act in paragraph 29 of Peacock:

"As for the main argument, based on fairness and rehabilitation, naturally I recognise that Parliament could have chosen a different policy with regard to after-acquired assets. But it seems to me perfectly understandable that in fact Parliament decided (as indisputably it did when later enacting POCA) to leave it open to the courts as a matter of discretion [emphasis added] to mulct a defendant of his criminal gains on an ongoing basis irrespective of precisely how and when he came by any increased wealth."

44. In our judgment, the obligation of a court under section 22(4)(a), bearing well in mind the policy underlining POCA, is in the exercise of its discretion to make a "just" order. It is in the very highest degree unlikely that any order which is "just" will be found to be disproportionate, so as to infringe A1 P1 of the European Convention of Human Rights.
45. In that context, it is entirely appropriate for a court to consider such matters as the amount outstanding, the additional amount which might now be available for a further payment, the length of time since the original confiscation order was made, the impact on the Defendant of any further payment contemplated and indeed any other consideration which might properly be thought to affect the justice of the case.

The Judge's Decision

46. In our view, the Judge took an unexceptional approach to the case. He set himself the objective of deciding what was just, and rightly described it as "a completely open-ended question". He paid proper regard to the underlying policy of the Act. He considered the decision in Peacock and it is clear his principal conclusion from the case was a correct view of the purpose of the legislation, an appropriate view untouched by the minor distinction of language ("appropriate" as opposed to "just") between the 1994 and 2002 Acts.
47. The Judge considered carefully what was clearly the central submission on behalf of the Appellant, namely that the passage of time and the fact that Mr Padda had gained the relevant assets by hard work in a legitimate enterprise should have precluded an order. In our view he took a perfectly appropriate view of this aspect of the case. Clearly the passage of time was important and the longer the time elapsed, the more a judge, on the particular facts of a given case, may be likely to give emphasis to it. However the proper exercise of such a discretion must always turn on the particular facts.
48. In dealing with the specific items he had to consider and deciding which assets were to be treated as personal rather than company assets, the Judge in our view took a perfectly sensible and indeed practical course through the evidence. He took a commonsense view of the ascription of assets to the Appellant personally and to the company. To be fair, the Appellant's counsel has made only one criticism of any of these findings, namely that in respect of the former matrimonial home at Hornet Way. When pressed in the course of argument, counsel effectively conceded that the Judge was entitled to disbelieve the evidence of the Appellant here. In our view, the Appellant's criticism of the Judge's reasons on this point were misplaced. He said that "on the evidence that I have heard, there is nothing to dissuade me from the view that this was a mother, or mother-in-law, ……providing some capital by way of a gift". Mr Davis' complaint is there was evidence from his client to the contrary. On our reading of the Judge's reasons, he accepted that he had heard such evidence but did not find it persuasive.

Conclusions

49. POCA section 22(4)(a) preserves an obligation on the court and a discretion to make an order which is just. The court can take all relevant circumstances into account when deciding this issue. The court must also take into account the legislative policy in favour of maximising the recovery of the proceeds of crime, even from legitimately acquired assets. The learned judge in this case took a perfectly proper course in the order he made. His order was neither wrong in principle nor manifestly excessive. Accordingly, this appeal is dismissed.