England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		1st July 2015

1. LADY JUSTICE MACUR: The appellant pleaded guilty to one attempted robbery and one robbery.
2. The facts of the offences need scant reference only. At 14.37 on 30th April 2014 the appellant robbed £2,375 from the Yorkshire Bank in Grantham. At approximately 4.15 the same day she deposited £1,200 into her own bank account before transferring £1,100 into her husband's bank account. Two weeks later she attempted to rob another bank in Grantham. She was sentenced to 2 years' imprisonment concurrent on each count. There is no appeal against this part of the sentence and in fact the appellant is now released.
3. On 2nd October 2014 the amount of benefit that she acquired from her criminal conduct was assessed as £2,375. A confiscation order in the sum of £1,140 was imposed under section 6 of the Proceeds of Crime Act 2002, to be paid within 6 months or in default she was ordered to serve 30 days' imprisonment. She appeals against the confiscation order with leave of the single judge.
4. This appeal concerns the statutory construction of section 77(5) of the Proceeds of Crime Act 2002. Its sole ground is that the Recorder wrongly concluded that the appellant had made a tainted gift to which section 77 applied. In doing so he is said to have impermissibly ignored the clear qualifying provisions in the 2002 Act, and that his use of the preamble to the statute as an aid to statutory construction was wrong.
5. The Recorder proceeded under section 6 of the 2002 Act. It was accepted that the appellant had benefited from her criminal conduct in the robbery of 30th April 2014 in the sum stolen. There is no issue that the recoverable amount for the purpose of section 6 is an amount equal to the appellant's benefit from the conduct concerned and that the court must make an order for that amount unless the appellant shows that the available amount is less than the benefit achieved (section 7(2)). The available amount includes all tainted gifts. The prosecution said that the transfer to the appellant's husband was a tainted gift. The money clearly derived from the offence - the appellant's bank account was in debit prior to the robbery.
6. The Recorder found that the appellant did not have a criminal life-style and in these circumstances was obliged to have regard to section 77(5) of the Act, that is:

"A gift is tainted if it was made by the defendant at any time after-

(a) the date on which the offence was committed;..."

7. The arguments made in the court below and advanced to us today, may be summarised as follows. Mr McNally, on behalf of the appellant argues for a literal construction of section 77(5)(a). He says there is no need to apply a gloss, or to make any substitution or addition to make clear what the draftsman intended; that is, the section does not cover the transfer of any gift at any time on the day during which the offence concerned was committed, only those on days subsequent. Mr Evans, on behalf of the respondent argues that Parliamentary intent is clear and that the date referred to in section 77(5)(a) must refer to the actual time of the offence from which the benefit was obtained.
8. The Recorder ruled in favour of the prosecution arguments, finding that if the defence argument was correct it would drive a coach and horses through the purpose of the legislation which could not be what Parliament had intended. He decided that any date on which an offence is committed, incorporated the time before the offence, the time of the offence and the time after the offence. Therefore, 30th April 2014 was not only the date on which the offence was committed but also a date after which the offence was committed. The judge said that the words "at any time after" must refer to the commission of the offence because the purpose of section 77(5)(a) is to deal with cases where the court has decided the defendant does not have a criminal life-style. Consequently section 77(5)(a) referred to a gift made at a time later than the commission of the offence whether or not it was made on the date the offence was committed or on some subsequent date.
9. Mr McNally contends that the relevant legislation, drafted in clear and unambiguous terms mean that we should construe "date" as deliberately identifying a particular date to the exclusion of all others. The respondent's arguments amount, he says, to an impermissible rewriting of the legislation because they do not like the outcome. There is no need, he says, to have recourse to explanatory notes which add nothing. The starting point is the Act. The range of the Act describes it purposes. He relies upon the speeches of Lord Nicholls and Lord Simon in the case of Stock v Frank Jones (Tipton Ltd) [1978] 1 WLR 231 to the effect that courts should be reticent to interfere with the intent of Parliament as indicated by the clear language used by the draftsman.
10. He goes on to refer in particular to the speech of Lord Scarman at page 238(g)-239(e):

" The words used by Parliament admit of no ambiguity, and, for the reasons given by [Viscount Dilhorne], I would dismiss this appeal.

I wish, however, to add a few words of my own on the 'anomalies' argument. Mr. Yorke for the appellants sought to give the words a meaning other than their plain meaning by drawing attention to what he called the 'anomalies' which would result from giving effect to the words used by Parliament. If the words used be plain, this is, I think, an illegitimate method of statutory interpretation unless it can be demonstrated that the anomalies are such that they produce an absurdity which Parliament could not have intended, or destroy the remedy established by Parliament to deal with the mischief which the Act is designed to combat.

It is not enough that the words, though clear, lead to a 'manifest absurdity': per Lord Esher M.R. in Reg. v. Judge of the City of London Court [1892] 1 QB 273, 290. Lord Atkinson put the point starkly in Vacher & Sons Ltd. v. London Society of Compositors [1913] AC 107, 121:

'If the language of a statute be plain, admitting of only one meaning, the legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results.'

The reason for the rule was given by Lord Tenterden C.J. in Brandling v. Barrington (1827) 6 B & C 467, 475 in a passage in which he was considering the so-called 'equity of a statute': he commented.

'that it is much safer and better to rely on and abide by the plain words, although the legislature might possibly have provided for other cases had their attention been directed to them.'"

11. The arguments that he advances in this case on the 'gross anomaly' point are as follows: 1. Based on his research, this is the first time that in 12 years a case on this particular provision has been referred to the Court of Appeal; 2. There are other means of obtaining the same result, whether by the judge applying common law principles of ownership or else the prosecution, in appropriate circumstances, indicting the defendant differently; 3. Section 22 of the 2002 Act itself provides for a reconsideration of the available amount and there are a number of other provisions dealing with recovery. 4. The penal aspect of the order is reflected in the term ordered to be served in default in this case and open to the court in all others. Further, he argues that the Act is ineffective in the recovery of the proceeds of crime by reference to statistics showing a low proportion of monies recovered under the scheme. (In this last regard, and with due respect to the conscientious research of Mr McNally, we have not found those particular statistics to have been of great assistance to the arguments that we must consider.) He goes on to stress that a comparison of this scheme and previous legislation quite clearly suggests that section 77(5)(a) was deliberately drafted. He relies on the fact that this was a recent Act and that neither the Act nor the language used has fallen into desuetude. He refers specifically to Criminal Justice Act 1988 section 74(9) which makes clear that a gift is caught if it was made at any "time" after the commission of the offence and the court considered it appropriate in all the circumstances to take that gift into account; the Drug Trafficking Act 1994 provisions that mean gifts were caught at any time if received in relation to drug trafficking or directly or indirectly representing such property.
12. The thrust of his argument is thus, that given the use made by draftsmen of the exact terms in previous and not too distant legislation, the fact that it was not adopted in this quite clearly shows a different Parliamentary intent that we should respect.
13. Mr Evans, in response, reminds us of the overall aim of the Proceeds of Crime Act by referring, not only to the preamble as did the sentencing Recorder, but also to the judgments of Lord Neuberger in the recent case of Ahmad.
14. We, note that the introduction to the 2002 Act states as follows:

"That this is an Act to... provide confiscation orders in relation to persons who benefit from criminal conduct and ... to allow the recovery of property which is or represents property obtained through unlawful conduct ..."

15. The case of Ahmad [2014] UKSC 36 shows, he says, that the starting point in the judgments of the Court is that the overall aim of Part 2 of POCA is "to recover assets acquired through criminal activity both because it is wrong for criminals to retain the Proceeds of Crime and in order to show that crime does not pay." He identifies the different terminology used in earlier statutory regimes, as did Mr McNally ,but he submits that the change in terminology that is obviously present in the statutory provisions does not reflect a change in Parliamentary intent. He argues that "the date on which the offence concerned was committed" was not intended by Parliament to give criminals "a sporting chance" to get rid of their assets, criminal or otherwise, by midnight on the day of the offence by gifting them to third parties. He refers to the purposive and consistent statutory construction that is called for where, despite the plainest of language, it is clear that an anomaly is caused. In this respect he refers to the judgments of the Supreme Court in the case of R v Waya [2012] UKSC 51 where, in the combined judgments of Lord Walker and Hughes, it is said:

"Although the statute has often been described as 'draconian' that cannot be a warrant for abandoning the traditional rule that a penal statute should be construed with some strictness. But subject to this and to HRA, the task of the Crown Court judge is 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."

In the later case of Ahmad, already cited Lord Neuberger was to say at paragraph 38:

"When faced with an issue of interpretation of the 2002 Act, the court must, of course, arrive at a conclusion based both on the words of the statute and on legal principles, but it is also very important to bear in mind the overall aim of the statute, the need for practicality, and Convention rights."

17. He was also to refer to Stock v Frank Jones Tipton case, arguing that in fact Mr McNally, was wrong to rely upon one part of a speech taken out of context. He argues, that as was recognised there, in the case of an obvious or gross anomaly the courts must act if they are satisfied that the draftsman's intent is not accurately defined within the plain words of the provision.
18. We note that there is no assistance to be gained with the interpretation of section 77(5)(a) within the Act itself. We do note the difference in the provisions relative to those who are found to have a criminal life-style and those who do not. We are also struck by the fact that if a court does not make a decision as to whether or not a defendant has a criminal life-style, that section 77(1) to (3) apply as opposed to section 77(5). This obviously produces an anomaly in its own right. A strict interpretation of the same would mean that a court which declined to make a decision as to criminal life-style would be entitled to regard a gift as tainted and subject to the purview of the court at any time after the commission of the offence, rather than on a date after the commission of the offence.
19. We are satisfied that a literal interpretation of section 77(5)(a) is anomalous to the explicit purpose of the Act. It could not have been intended that criminals have a day's grace to dispose of their assets or to require either the prosecution, the enforcement agencies or the court to devise a scheme, outside the Act, to catch relevant assets. A literal interpretation of section 77(5) would require this.
20. In argument Mr McNally was asked to address a factual scenario somewhat different to the one that presents in this case. What if, he was asked, the appellant had committed the offence late at night and unable to access her bank account had given herself a period of lying low and had made the deposit within her bank account and onward transfer minutes after midnight had struck? That, he said, would mean that that particular disposal would have been caught by the statutory provision because it would have been made on a date after the date on which the offence had been committed.
21. It cannot be right that the Parliamentary draftsman would have encompassed within section 77(5)(a) the potential different treatment of any asset dependent on which time of the day an offence was committed. We see this particular example, extreme though it may be, as demonstrating what could rightly be categorised, and which Mr Evans invites to conclude, was the absurdity or gross anomaly of a literal translation of section 77(5)(a) as contended for by Mr McNally.
22. We have no hesitation in endorsing the argument that there must be a purposive construction of the provision and in doing so, the subsection must read as though the date upon which an offence is committed must refer to the actual time of commission and after which any tainted gift will fall for the consideration in the court's powers of confiscation.
23. In this respect and without the necessity to define "date" as before, during or after an offence, we consider that the Recorder's decision was right. For those reasons this appeal is dismissed. The confiscation order made stands. All necessary recovery procedures will take place in the normal course.