Factual and Procedural Background
The case concerns two sets of applications before the court involving a confiscation order made against the Defendant following multiple criminal convictions. The Defendant was convicted in 2011 at Wood Green Crown Court of various offences including furnishing false information related to mortgage applications, transferring and converting criminal property, possessing a false identity document, and handling stolen goods. Subsequently, a confiscation order was made against the Defendant under the Proceeds of Crime Act 2002 ("POCA 2002") with an initial benefit figure and available amount. The Defendant's appeals against convictions and sentences were dismissed.
The confiscation order has undergone several revisions over the years, including reductions in the benefit figure and available amount following appeals and applications under POCA. A restraint order was made in September 2023 based on newly discovered assets. The Crown now seeks to amend the benefit figure downward further, relying on a recent ruling by HHJ Deacon KC which identified errors in the inclusion and valuation of certain properties in the benefit figure. The Defendant has also made multiple applications to re-open final determinations in both conviction and confiscation appeals.
Legal Issues Presented
- Whether the court should exercise its inherent jurisdiction to re-open the 2018 confiscation appeal to correct errors in the benefit figure of the confiscation order.
- Whether the Crown's application for leave to appeal out of time under section 31 of POCA 2002 to reduce the benefit figure should be granted.
- Whether the Defendant's applications to re-open the dismissed conviction appeals and confiscation appeals should be allowed.
Arguments of the Parties
Crown's Arguments
- The Crown seeks to reduce the benefit figure of the confiscation order from £816,514.78 to £514,175.78 based on errors identified by HHJ Deacon KC concerning the wrongful inclusion of two properties and incorrect valuation of another.
- The Crown initially applied to re-open the 2018 confiscation appeal under Crim PR Rule 36.15 but revised its application to rely on the court's inherent jurisdiction following the court's indication that confiscation appeals are excluded from Rule 36.
- Alternatively, the Crown applies for leave to appeal out of time under section 31 of POCA 2002.
- The Crown accepts the benefit figure requires downward revision but maintains the available amount remains unchanged at £368,354.72, which has already been recovered.
- The Crown opposes re-opening of the 2013 confiscation appeal and the Defendant’s conviction appeal re-openings.
Defendant's Arguments
- The Defendant applies to re-open two conviction appeals and two confiscation appeals, relying on Crim PR Part 36.15 and the court's inherent jurisdiction.
- Regarding the mortgage fraud conviction appeal, the Defendant argues that payments accepted by the prosecution into a mortgage account, which came from proceeds of sale of a property, were not criminal property, potentially undermining certain counts.
- The Defendant contends a discrepancy exists between the prosecution's position on identity creation versus identity theft, which he asserts renders his convictions unsafe.
- In relation to the handling conviction appeal, the Defendant relies on an alleged discrepancy between comments made during argument and the court’s judgment concerning bad character evidence to argue for re-opening.
- For the 2013 confiscation appeal, the Defendant seeks correction of errors in the benefit figure and resolution of contradictory findings regarding the property at Ashbourne Avenue.
- For the 2018 confiscation appeal, the Defendant relies on the discrepancy in valuation of Ashbourne Avenue property as a ground for re-opening.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Powell [2016] EWCA Crim 1539 |
Inherent jurisdiction to re-open concluded appeals in exceptional circumstances to avoid real injustice |
The court relied on Powell to justify exercising inherent jurisdiction to re-open the 2018 confiscation appeal despite procedural rules excluding confiscation appeals from re-opening under Crim PR Part 36.15. |
| Gohil [2018] EWCA Crim 140 |
Conditions and limitations on reopening appeal determinations |
The court referenced Gohil’s analysis of the necessary conditions to re-open an appeal and the residual discretion to refuse reopening even if conditions are met. |
| Yasain [2015] EWCA Crim 1277; [2016] QB 14 |
Criteria for re-opening concluded appeals: necessity to avoid real injustice, exceptional circumstances, and lack of alternative remedy |
These criteria formed the basis of the court’s assessment of whether to exercise inherent jurisdiction to re-open the appeal. |
| Waya [2012] UKSC 51 |
Legal principles relevant to confiscation order appeals |
Referenced in the history of the confiscation order appeals, particularly the 2013 appeal reducing the benefit figure. |
Court's Reasoning and Analysis
The court began by reviewing the history of the Defendant's convictions, confiscation orders, and appeals. It acknowledged the detailed ruling of HHJ Deacon KC which identified that the prosecution had wrongly included two properties in the benefit figure at the 2013 and 2018 confiscation appeals, and had undervalued another property at the 2018 appeal. The court recognized that while the 2013 appeal erroneously included properties not originally part of the order, revisiting that appeal was unnecessary as it was superseded by the 2018 appeal and did not affect the available amount or the default sentence.
Conversely, the court found the 2018 confiscation appeal contained errors that required correction to avoid real injustice. The inclusion of the two properties and the incorrect valuation of the Ashbourne Avenue property meant the benefit figure was overstated. The court accepted that no alternative remedy existed and that this was an exceptional case warranting exercise of the inherent jurisdiction to re-open the appeal, as supported by the precedent in Powell.
Regarding the Crown’s application for leave to appeal out of time under section 31 of POCA, the court dismissed it, reasoning that the correction sought was more appropriately achieved through re-opening the 2018 appeal rather than a fresh appeal.
The court also considered the Defendant’s applications to re-open the conviction appeals and the 2013 confiscation appeal. It found no exceptional circumstances or injustice sufficient to justify reopening, noting that the issues raised had been previously considered and rejected by the Court of Appeal. The court further held that the Defendant’s arguments would not undermine the safety of the convictions.
Ultimately, the court re-opened the 2018 confiscation appeal solely to reduce the benefit figure to £514,175.78 by excluding the two properties and correcting the valuation of Ashbourne Avenue. The available amount remained unchanged at £368,354.72, which had already been recovered.
Holding and Implications
The court ALLOWED the Crown's application and the Defendant's application to re-open the 2018 confiscation appeal for the limited purpose of reducing the benefit figure to £514,175.78.
The court DISMISSED the Crown's application for leave to appeal out of time under section 31 of POCA 2002.
The court DISMISSED the Defendant's applications to re-open the two conviction appeals and the 2013 confiscation appeal.
The decision results in a corrected benefit figure reflecting the proper inclusion and valuation of assets, but leaves the available amount unchanged. No broader precedent was set beyond the application of the inherent jurisdiction to re-open the 2018 confiscation appeal under the exceptional circumstances identified.