England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		8 April 2014

1. MR JUSTICE SWEENEY: On 17 December 2010 at the conclusion of a trial before His Honour Judge Creed and a jury in the Crown Court at Birmingham, the applicant, who is now aged 58, was convicted of conspiracy to defraud and controlling an article for use in fraud (Counts 1 and 2). On 3 February 2011, at the same court, he was sentenced by His Honour Judge Creed to 2 years 6 months' imprisonment on Count 1 and to 9 months' imprisonment concurrent on Count 2.
2. On 8 January 2013, at the same court, in confiscation proceedings under the Proceeds of Crime Act 2002 ("the 2002 Act"), the applicant was found by His Honour Judge Creed to have benefited in the sum of £2,837,349.06. His available assets were deemed to be in the same amount, and a confiscation order was made in that sum to be paid within 6 months, with 10 years' imprisonment to be served in default. The applicant was also ordered to pay compensation of £3,643.70 out of the confiscated sum. He now renews his application for leave to appeal in relation to the confiscation order, following refusal by the single judge.
3. The facts are summarised in the Criminal Appeal Office Summary, and there is a helpful chronology in paragraphs 11 to 26 of the Respondent's Notice, dated 18 April 2013.
4. There are three grounds of appeal. It is asserted that the judge erred in 1) making the order, as the 2-year time limit under section 14 of the 2002 Act had expired and the court had no jurisdiction to make the order; 2) in finding that the applicant's relevant benefit was at least £5,000, and that he therefore had a criminal lifestyle within the meaning of section 75 of the 2002 Act; 3) in making the order, as it was disproportionate.
5. In advancing the application, Mr Farrell QC on the applicant's behalf has indicated that he did not wish to make any oral submissions in support of ground 1. Equally, he indicated (realistically, in our judgment) that if the court was not with him on ground 2, there was no point in making oral submissions in relation to ground 3. He therefore concentrated his submissions on ground 2.
6. In that regard, he pointed out that the offence of conspiracy was proved by evidence which demonstrated a loss limited to just over £4,200. He took us to the relevant sections of the 2002 Act, to the case of R v Bajwa [2012] 1 WLR 601, and to various aspects of the transcript of the judgment of His Honour Judge Creed. He submitted in particular, by reliance on phrases used during the course of Judge Creed's ruling, that the judge had approached the 2002 Act in an inappropriate manner in law and that there was no basis upon which, even applying the civil standard of proof, as he rightly did, that the judge was entitled, whether as a matter of law or as a matter of fact, to conclude that the benefit exceeded £5,000, albeit that it was a conspiracy case, and that (as to the facts) there was clear evidence of many more losers and there was, in addition, evidence of unexplained deposits to the applicant's benefit in the region of £2.9 million.
7. As to the passages relied upon as indicating that the judge took a wrong approach in law, it seems to us plain that all the judge was indicating, rightly, was that he had to apply a different standard of proof to the central question in what were separate, albeit allied, proceedings.
8. In the result, we see no arguable merit in ground 2 and no arguable merit in grounds 1 and 3 either.
9. Accordingly, this renewed application is refused.