Appealing out of time after a change of law

When the law changes can an appeal be made to the Court of Appeal outside the normal time limits?

Normally an appeal against a decision of the Crown Court in England and Wales has to be submitted within 28 days of the decision. But the Court of Appeal can give leave for an appeal to be heard where the deadline has been missed – and has done so in some cases where the deadline has been missed by months or even years.

Where a defendant has suffered a decision which, though it appeared to be well founded at the time it was made, now appears to be incorrect in the light of subsequent case law, what is the position regarding the submission of an appeal out of time?

This is an issue which arises from time to time – and may be particularly topical following the decision of the UK Supreme Court in the case of R v Waya [2012] UKSC 51.

 

The general rule

The general rule is that the Court of Appeal will not allow an appeal to be made out of time if the only reason for the appeal is that subsequent cases have shown the previous perception of the legal position was mistaken.

This was set out many years ago in the case of R v Mitchell [1977] 65 CAR 185 when it was said that, “It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact there has been an apparent change in the law or, to put it more precisely, the previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction”.

That rule has been reiterated many times since.  See, for example, the comment, “alarming consequences would flow from permitting the general re-opening of old cases on the ground that a decision of a court of authority had removed a widely held misconception as to the prior state of the law” from the case of Ramsden [1972] Crim LR 547 and repeated, with approval, in the case of R v Ramzan & Others [2006] EWCA Crim 197 at paragraph [30].

In the case of R v Cottrell [2007] EWCA Crim 2016 it was said, at paragraph [42], “there is a continuing public imperative that so far as possible there should be finality and certainty in the administration of criminal justice.  In reality, society can only operate on the basis that the courts administering the criminal justice system apply the law as it is.  The law as it may later be declared or perceived to be is irrelevant”.

But there have been exceptions made to the general rule.

 

Substantial injustice

It does appear to be the case that where the Court of Appeal can be satisfied that a defendant has suffered a substantial injustice then it can be persuaded to hear an appeal out of time. In the case of Hawkins [1997] 1 Cr.App.R 234 the Court of Appeal commented that “the practice of the Court has in the past, in this and comparable situations, been to eschew undue technicality and ask whether any substantial injustice has been done”.
So, for example, where a defendant has been convicted of an offence of which, under a new understanding of the law, he could not now be found guilty – but the evidence shows that he must have been guilty of another similar offence (of which he had not been charged), then the Court of Appeal will generally not allow an appeal to be heard out of time. This was the position of a Mr Malik who had been convicted of conspiracy to launder money prior to the ruling in R v Saik [2006] UKHL 18 (which changed the law regarding the conspiracy offence where there was merely a suspicion that monies were proceeds of crime). The Court of Appeal considered that there was ample evidence of the substantive offence of money laundering in Mr Malik’s case and refused him leave to appeal his conviction out of time.

In R v Charles [2001] EWCA Crim 1755 the Court of Appeal said, at paragraph [41], “In practice judges and courts are probably not as reluctant to grant extensions of time as the authorities may suggest. It has been the experience of the members of this Court that consideration will usually be given to the merits before declining to grant an extension of time. Both in Jones (No. 2) and Asraf, the merits were considered notwithstanding the absence of any proper explanation for the delay. There are some cases, such as those where the applicant wishes to rely on fresh evidence unavailable at trial, where the extension of time will be readily granted. There are cases such as those envisaged in Hawkins where it will not be”.

 

Failure to address a key issue

Perhaps slightly different are cases where, because the law was not properly understood at the time, a key issue in the proceedings was not recognised and addressed in the Crown Court. This is illustrated by the case of Bell & Others v R [2011] EWCA Crim 6.

Mr Bell was subject to a confiscation order made in 2007 after he had been convicted of being knowingly concerned in the fraudulent evasion of the duty chargeable on cigarettes contrary to section 170(2)(a) Customs and Excise Management Act 1979. The confiscation order was based on the amount of duty evaded when the cigarettes in question had been smuggled into the UK. But in fact it does not follow that a person committing this offence is himself liable for the duty and thus has ‘obtained’ a pecuniary advantage which would form the basis for a confiscation order. That had not been appreciated by the Crown Court at the time the confiscation order was made. In consequence the Crown Court had not addressed the question of whether Mr Bell was himself liable for the evaded duty and evidence relevant to that issue had not been obtained.

Subsequently the Court of Appeal had decided the case of White & Others v The Crown [2010] EWCA Crim 978 which highlighted this issue. Mr Bell then lodged an appeal against the confiscation order made against him three years earlier.

Before the Court of Appeal it was accepted that, in fact, Mr Bell had not been personally liable for the evaded duty. The Court of Appeal granted leave to appeal the confiscation order out of time because “it would be a grave injustice not to grant leave”.

In place of a benefit of £157,775 based on the evaded duty, Mr Bell was made subject to a confiscation order of just £950 based on the payment he had received for his role in the smuggling offence.

 

The impact of R v Waya

We have yet to see whether the Court of Appeal will grant leave to appeal confiscation orders out of time following the decision of the UK Supreme Court in the case of R v Waya [2012] UKSC 51.

The Waya case decided two points of principle: (1) confiscation orders should not be ‘disproportionate’ because that would infringe Article 1 of the First Protocol to the European Convention on Human Rights and (2) a mortgage applicant does not ‘obtain’ a mortgage advance (for confiscation purposes) if that advance is simply paid to a solicitor, acting on behalf of both the applicant and the lender, and then remitted to the vendor of the property being purchased (or his solicitor) – because the mortgage applicant does not at any stage gain ‘control’ of the monies advanced.
It may be that defendants who have been subject to a confiscation order which they consider is more severe than the Crown Court would have made had the decision in Waya been available at the time will now seek to appeal their orders. It will be very interesting to see how such appeals are dealt with by the Court of Appeal.

David

EDIT: A further article on the subject updates the position: Appealing a confiscation order out of time.

(Note: This article applies to confiscation orders under the provisions of Part 2 of the Proceeds of Crime Act 2002 in England and Wales. There are a number of additional issues which could be relevant to a defendant’s confiscation order in particular cases which it is not possible to deal with in a relatively short article such as this. Appropriate professional advice should be sought in each individual case.)

39 Responses to Appealing out of time after a change of law
  1. Ron Barker
    April 7, 2013 | 12:32 pm

    R v Mitchell [1977] 65 CAR 185; [1977] 1 W.L.R. 753 is still good law (but there is always room for some judicial gymnastics in the interests justice):
    “It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact there has been an apparent change in the law or, to put it more precisely, the previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction”.
    In that case the Court granted leave, because it had before it a perfectly valid and timely appeal against sentence which could not properly be considered without investigating whether the Appellant had been guilty or not, and, since the evidence necessary to conduct that investigation remained available there would be substantial injustice to the Appellant if leave were refused.

    In Benjafield & Ors, R v [2000] EWCA Crim 86 (21st December, 2000) Lord Woolf commented that:
    “It is not usual to grant leave to appeal out of time where the grounds of appeal are based on post-trial changes in the law. This practice has been reaffirmed in relation to applications based on the coming into force of the Human Rights Act 1998; see R v Lambert [2001] 2WLR 211. The court would not wish in this case to do other than confirm the existing practice”.
    The point was confirmed by the House of Lords in R v Benjafield [2003] 1 AC 1099 at 1117.

    An appeal made in good time may be adjourned where a point of law has yet to be decided by the Supreme Court as in Mahmood v R [2013] EWCA Crim 325 where an appeal against a confiscation order was adjourned so that further submissions could be made on the implications for the appellant’s case of R v Waya [2012] UKSC 51; [2012] 3 WLR 1188.

    Cottrell, R v [2007] EWCA Crim 2016 (31 July 2007) Change of Law Cases:
    [42]. “These cases present issues of great sensitivity and latent tension. Those convicted on the basis of the old law assert that their convictions were based on an erroneous understanding of the criminal law and that they have therefore suffered an injustice. At the same time there is a continuing public imperative that so far as possible there should be finality and certainty in the administration of criminal justice. In reality, society can only operate on the basis that the courts administering the criminal justice system apply the law as it is. The law as it may later be declared or perceived to be is irrelevant. Change of law appeals create quite different problems to those which arise in the normal case where an individual was wrongly convicted on the basis of the law which applied at the date of conviction.”

    Ramzan & Ors, R v [2006] EWCA Crim 1974 (21 July 2006):
    “It is the very well established practice of this Court, in a case where the conviction was entirely proper under the law as it stood at the time of trial, to grant leave to appeal against conviction out of time only where substantial injustice would otherwise be done to the Defendant.”

    Kansal, R v [2001] EWCA Crim 1260 (24th May, 2001):
    [16]. “…..this court’s established practice is not to grant an extension of time for leave to appeal against conviction by reason only of a change in the law since trial” [21]. “….it has been this court’s established practice for over 20 years not to grant an extension of time or leave to appeal because of a change in the law since trial. [22]. “… the very firm hope that, in exercising the discretion under section 9 and the judgment conferred by section 13(1)(a), the [Commission] may think it right to take into account this court’s practice in refusing leave because of a change in the law …”
    The context in Kansal concerned the change in the law brought about by statute, the Human Rights Act 1998, and its possible retrospective effect, an alarming prospect which was removed on the subsequent appeal to the House of Lords in 2001 Kansal, R v. [2001] UKHL 62.

    Clark, R v [2001] EWCA Crim 884 (5th April, 2001) [3]. “It is only very rarely and in exceptional circumstances that this court grants an extension of time and leave to appeal against conviction because of a change in the law following a plea of guilty. The reasons were explained by Lord Lane CJ in Mitchell (1977) 65 Crim App R 185 at 189-150 and by Lord Bingham CJ in Hawkins (1997) 1 Crim App R 234 at 240C-F and need not be repeated here.”

    Bentley (Deceased), R v [1998] EWCA Crim 2516 (30th July, 1998); [2001] 1 Cr App R 307 Lord Bingham said:
    “Where between conviction and appeal there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time.”

    Referrals by Criminal Cases Review Commission

    Section 16C of the Criminal Appeal Act 1968 as inserted by section 42 Criminal Justice and Immigration Act 2008 provides that where the only ground for allowing the appeal is that there has been a development in the law since the date of conviction, the Court may dismiss the appeal if they would have refused an extension of time within which to seek leave to appeal.

    The only case in which the section has been considered so far has been the Commission reference of R v Rowe [2008] EWCA Crim 2712. Courts of first instance had been operating on the understanding that it was possible for people to be found guilty of being in possession of an illegal image even though the image had been deleted and was not recoverable by the defendant. A Court of Appeal decision corrected this impression. In Rowe the Lord Chief Justice explained why this was not a situation in which the new legislation was applicable:
    “The Crown suggests that this reference may raise the problem of change of law cases addressed by this court in R v Cottrell and Fletcher [2007] EWCA Crim 2016. However, we do not see this as such a case; nor do we think that section 42 of the Criminal Justice and Immigration Act 2008, which came into force on 18 July 2008, bears on our decision. We must briefly explain our reasons. Before the decision in Porter this court had not addressed the problem of possession of indecent images of children in the context of items deleted from a computer or computers in a defendant’s possession. Porter explained the principles. It is binding upon us. It is not suggested that it was wrongly decided or decided per incuriam. If, following his application, the appellant had been granted leave to appeal, whether by the single judge, or, following refusal by the single judge, if he had applied to this court, we must assume that the principles now explained in Porter would have been decided in this case some time before Porter was decided. Until Porter was decided, however, the law had simply not been defined.”
    Where the section does apply, it will be relevant to the question of whether there is a real possibility of the appeal succeeding, and therefore it will not affect any exercise of the discretion not to refer once a real possibility has been found to exist. Criminal Cases Review Commission Discretion in referrals (including applications based on a change in the law).

    • David Winch
      April 7, 2013 | 1:34 pm

      Ron

      Many thanks for this detailed response. I have added links to most of the cases to which you refer (I hope you don’t mind).

      I do not think there is anything in your response with which I would disagree.

      However I do think there will be confiscation cases – and perhaps many of them – where, following the Supreme Court decision in Waya, a defendant will now feel that there has been a relevant change in the understanding of the law AND in the light of that it is now evident that one or more key issues in relation to his confiscation were not recognised by, and addressed in, the Crown Court AND there has been a substantial injustice done to him as a result.

      In such cases I would suggest it would be sensible to obtain legal advice (not from me – I am an accountant not a lawyer) about the possibility of seeking leave to appeal to the Court of Appeal out of time.

      David

  2. Ron Barker
    April 7, 2013 | 5:18 pm

    David

    How would do you get round R v Mitchell? The law was not changed by the court in R v Bell and R v White.

    R v Waya was appealed on a point of law.

    • David Winch
      April 7, 2013 | 5:46 pm

      Ron

      I do not see R v Mitchell as a basis on which to say that leave to appeal will never be granted where there has been a (perceived) change of law as a consequence of new case law.

      I see R v Mitchell as a basis for saying that if the ONLY ground of appeal is a perceived change of law then leave to appeal will not be granted.

      See for example R v Cottrell at para [45]:
      “The general rule is simple. Without special or particular reasons an application for leave to appeal out of time on such change of law grounds will not be granted” (emphasis added);
      and at para [47]:
      “it is inherent that the policy permits of exceptions”.

      Again in R v Ramzan at para [30]:
      “It is the very well established practice of this Court, in a case where the conviction was entirely proper under the law as it stood at the time of trial, to grant leave to appeal against conviction out of time only where substantial injustice would otherwise be done to the Defendant” (emphasis added).

      What I am suggesting is that in many confiscation cases there will be “special or particular reasons” and refusal of leave to appeal out of time would allow “substantial injustice” to be done to the defendant.

      I suggest that in many cases, just as in the case of Bell, the “right questions” will not have been addressed in the Crown Court in cases decided prior to the Supreme Court decision in Waya.

      So I do not believe that R v Mitchell will present an insuperable obstacle to an appeal out of time in a number of confiscation cases (just as it did not prevent an appeal out of time in Bell).

      David

  3. Ron Barker
    April 8, 2013 | 8:58 am

    David

    We will just have to agree to disagree and look to the future for what transpires as a result of R v Waya.

    However, I am not sure how R v Bell is relevant. The case did not bring about a change in the law. R v Bell followed on from R v Chambers. Under current law no offence was committed and in the case of R v Bell no duty was owed.

    Where a person imports dutiable cigarettes into the country he becomes liable to the duty at the excise point which in the case of importation by sea means arrival at the limits of the port of entry. Regulation 13 of the 2001 Regulations makes the person holding the tobacco products at the excise duty point liable to pay the duty. That liability is extended by Regulation 13(3)(e) to any person who caused the tobacco products to reach the excise duty point.

    In R v. Khan [2009] EWCA Crim 588 the defendants had a modest organisational role in the collection and distribution of the smuggled goods. They were held not to be responsible for the importation and were not liable for the duty and were held not to have obtained the benefit such as to render them liable to confiscation orders.

    Chambers, R. v [2008] EWCA Crim 2467 (17 October 2008) Basis of plea confiscation order. This case is an object lesson in ensuring that a count/charge has a proper legal base, and that the legislation relied upon is up-to-date. A confiscation order was made against the defendant in the sum of £66,120 under the Proceeds of Crime Act 2002, with a period of imprisonment of 20 months in default of payment. Application for leave to appeal against his confiscation order was referred by the single judge to the full court. Having heard full argument in the matter the court granted leave. The prosecution relied on the Excise Goods Regulations 1992. The court heard arguments from both sides about their proper construction. By a fortunate accident the court’s draft judgment was seen by a lawyer in the Asset Forfeiture Division of the Revenue and Customs Prosecutions Office, who was aware that the 1992 Regulations no longer applied to tobacco products. She immediately took proper steps to ensure that the appeal court was alerted. It transpired that the Excise Goods Regulations 1992 were superseded in relation to tobacco products by the Tobacco Product Regulations 2001, which came into force on 1st June 2001, i.e. over 5 years before the events giving rise to the present prosecution. Held: Appeal allowed and the confiscation order quashed.

    Toulson LJ stated at paragraph [52]:
    “On the hearing of the appeal [counsel] accepted, in our judgment correctly, that the appellant would only have obtained a benefit by way of a pecuniary advantage in the form of the evasion of excise duty if he was himself under a liability for the payment of that duty which he dishonestly evaded. To help somebody to evade the payment of duty payable by that other person, with intent to defraud, is no less criminal, but in confiscation proceedings the focus is on the benefit obtained by the relevant offender. An offender may derive other benefits from helping a person who is under a liability for the payment of duty to avoid that liability, e.g. by way of payment for the accessory’s services, but that is another matter. In order to decide whether the offender has obtained a benefit in the form of the evasion of a liability, it is necessary to determine whether the offender had a liability which he avoided. In the present case that turns on whether the appellant was liable for the payment of excise duty on the relevant goods and of the relevant Regulations.”
    In Chambers counsel for the Crown accepted that the appellant would only have obtained a benefit by way of pecuniary advantage in the form of evasion of excise duty if he himself was under a liability for the payment of that duty which he dishonestly evaded. The defendant in that case was found in a car containing keys which opened a padlocked area securing a storage container containing tobacco packages. He pleaded guilty to an offence under section 170(1)(b) of the 1979 Act of being knowingly concerned in keeping, concealing or dealing with goods which were chargeable to duty which had not been paid with intent to defraud the Crown of the duty chargeable on the goods. The trial judge held that he had received a pecuniary advantage equal to the value of unpaid duty concluding that he provided an important link in the chain between the importers and the ultimate sale up to which point no profit could actually be realised. The Court of Appeal approached the question thus:

    “In order to decide whether the offender has obtained a benefit in the form of the evasion of a liability, it is necessary to determine whether the offender had a liability which he avoided. In the present case that turns on whether the appellant was liable for the payment of excise duty on the relevant goods under the relevant Regulations.”

    It concluded that he was not.

    If they were not participants in the actual importation, they would not be liable for the duty as such and thus could not be said to have obtained a pecuniary advantage for the purposes of the 2001 Regulations.

    Bell & Ors v R [2011] EWCA Crim 6 (18 January 2011) The five cases are the first of a series of cases listed for this term. It is hoped that this judgment may lead to a consensual resolution of at least some of the remaining applications for leave to appeal confiscation orders out of time. In all of the five cases confiscation orders were made in respect of what was alleged to be evaded duty on tobacco products smuggled into this country for resale. To understand the background to these cases it is necessary to read the decision of this Court in White, Dennard and others [2010] EWCA Crim 978. In that case the Court examined in detail (and for the first time) the primary legislation and the Regulations which lay down when excise duty on smuggled tobacco products is due and who is liable to pay it. It is sufficient to say for our purposes and in general terms that a person is not liable for the excise duty on smuggled tobacco products unless he has a connection with the smuggled goods at the time of their importation, that being (in the case of smuggled goods arriving by sea) when the ship enters the port of destination in this country. Most unfortunately, in none of the cases did anyone apply their mind to whether the defendant had obtained a pecuniary advantage either directly because he was liable for the duty himself or indirectly because he had the necessary causal link with the non payment of the duty by another. The failure to ask the right questions was apparently due to conflating the ingredients of the offence charged with the issue of whether the defendants had obtained a benefit, namely a pecuniary advantage. All the appellants pleaded guilty to offences alleging that they had been knowingly concerned in the fraudulent evasion of the duty chargeable on cigarettes contrary to section 170(2)(a) of the Customs and Excise Management Act 1979 , except Middlecote, who pleaded guilty to a conspiracy to commit that offence. It was wrongly assumed by all concerned in these cases that the defendants having been knowingly concerned in the evasion of the duty must have been liable for the duty (in some way or another). The offence is a continuing offence and a person may commit the offence by becoming involved some time after the importation ( See Blackstone, Criminal Practice, 2011, para. B16.39). It does not follow that a person committing the offence is himself liable for the duty and thus has obtained a pecuniary advantage.

  4. Ron Barker
    April 8, 2013 | 9:24 am

    I think that R v White Dennard and others is worth a mention:

    White, Dennard and others [2010] EWCA Crim 978. In that case the Court examined in detail (and for the first time) the primary legislation and the Regulations which lay down when excise duty on smuggled tobacco products is due and who is liable to pay it. It is sufficient to say for our purposes and in general terms that a person is not liable for the excise duty on smuggled tobacco products unless he has a connection with the smuggled goods at the time of their importation, that being (in the case of smuggled goods arriving by sea) when the ship enters the port of destination in this country. Most unfortunately, in none of the cases did anyone apply their mind to whether the defendant had obtained a pecuniary advantage either directly because he was liable for the duty himself or indirectly because he had the necessary causal link with the non payment of the duty by another. The failure to ask the right questions was apparently due to conflating the ingredients of the offence charged with the issue of whether the defendants had obtained a benefit, namely a pecuniary advantage. All the appellants pleaded guilty to offences alleging that they had been knowingly concerned in the fraudulent evasion of the duty chargeable on cigarettes contrary to section 170(2)(a) of the Customs and Excise Management Act 1979 , except Middlecote, who pleaded guilty to a conspiracy to commit that offence. It was wrongly assumed by all concerned in these cases that the defendants having been knowingly concerned in the evasion of the duty must have been liable for the duty (in some way or another). The offence is a continuing offence and a person may commit the offence by becoming involved some time after the importation (Blackstone, Criminal Practice, 2011, para. B16.39). It does not follow that a person committing the offence is himself liable for the duty and thus has obtained a pecuniary advantage.

    Hooper LJ stated at paragraphs [3], [4], [5], [7] and [8]:

    “[3]. Under both the Criminal Justice Act 1988 and its successor the Proceeds of Crime Act 2002 if a person obtains a pecuniary advantage as a result of or in connection with an offence (the 1998 Act) or with conduct (the 2002 Act) he is treated, for confiscation purposes, as having received a sum of money equal to the pecuniary advantage (see section 71(5) of the 1988 Act and section 76(5) of the 2002 Act). Thus his benefit will be deemed to include a sum of money equal to the pecuniary advantage.

    [4]. However, the evasion by a smuggler of duty or VAT constitutes, for the purposes of confiscation proceedings, the obtaining of a pecuniary advantage only if he personally owes that duty or VAT. This was established by the House of Lords in May [2008] UKHL 28 and Jennings [2008] UKHL 29 and applied in Chambers (2008) EWCA 2467 and Mitchell [2009] EWCA Crim. 214.

    [5]. In May the House of Lords said in paragraph 48 that the defendant “ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject” (underlining added). The House pointed out that more than one person could be personally liable.

    [8]. The relevant regulations will determine whether a defendant personally owes a duty or VAT, subject to the compatibility of those Regulations with the primary domestic legislation and the relevant EC Directive. However before the law was clarified by the House of Lords in May and Jennings, the Regulations were generally unimportant in confiscation hearings since whether the defendant personally owed the duty or VAT did not matter because he would normally have contributed to the evasion to the duty or VAT by another.”

  5. Ron Barker
    April 8, 2013 | 9:39 am

    David

    What is maybe of relevance about R v Bell is that the prosecution relied on the Excise Goods Regulations 1992 (under which the defendant did owe duty). However, those regulations had been superseded by the Excise Goods Regulations 2001, under which the defendants did not owe duty. So unlike the cases where there has been a change in the law to the detriment of defendants, the change in the law was to the advantage of defendants.

    • David Winch
      April 8, 2013 | 11:19 am

      Ron

      I am suggesting Bell is very relevant, not because it changed the law (I do not believe Bell changed the law and, in particular, I am not suggesting Bell somehow over-ruled R v Mitchell [1977] 65 CAR 185; [1977] 1 W.L.R. 753) but because it illustrates how the Court of Appeal may approach applications for leave to appeal out of time.

      Bell was a confiscation case in which the appellant sought leave to appeal out of time following the new light thrown on his position by subsequent case law – in particular the Court of Appeal decision in White and the House of Lords decision in Jennings.

      In the light of the decisions in those cases the Court of Appeal considered that Mr Bell’s arguments had merit in that the “right questions” had not been addressed in the Crown Court because the parties at that time did not have a proper appreciation of the legal position (as it had been examined in detail for the first time subsequently in White). It followed that there would be a substantial injustice done to Mr Bell if his application for leave were not granted. So he was granted leave to appeal and his confiscation order was reduced very significantly.

      I am suggesting that, in exactly the same way, there will be a number of old confiscation cases in which the “right questions” were not asked at Crown Court because the human rights aspects of the law in s6(5) PoCA 2002 and the technicalities of ‘obtaining’ a mortgage were examined in detail for the first time in the Supreme Court in Waya.

      So I am suggesting that there is a very close parallel between Bell and some old (i.e. pre Waya) Crown Court confiscation orders and that, in exactly the same way as with Bell, the Court of Appeal may find merit in appeals against those confiscation orders and may grant leave to appeal out of time on the same grounds as they did in Bell.

      David

  6. Ron Barker
    April 8, 2013 | 7:15 pm

    David

    There is a huge difference between the case of Bell and any application for leave to appeal out of time as a result of Waya.

    In the case of Bell, based on the law as it stood at the time, confiscation orders should not have been made. (The appellants were not liable to pay the duty nor did they have the necessary causal link with the non payment of the duty by another).

    There is nothing wrong or unjust about confiscation orders made under the law as it stood, at the time the orders were made, just because the law was changed by the case of Waya.

    • David Winch
      April 8, 2013 | 8:09 pm

      Ron

      Mortgage cases

      Consider the case of a defendant convicted of mortgage fraud in the case of a mortgage advance of, say, £100,000. Before the Supreme Court decision in Waya this defendant would have been subject to a confiscation order which would include, within his figure of benefit, the £100,000 mortgage advance.

      But, based on a correct analysis of the mortgage transaction and the law as it stood at the time, the defendant did not ‘obtain’ the £100,000 advance and it should not have been included within his figure of ‘benefit’ for confiscation purposes.

      So, just as in the case of Bell, on a correct analysis at the time of the law and the facts, the confiscation order should not have been made in the terms in which it was made.

      So there is, in my view, a strong argument for the Court of Appeal to grant leave to appeal out of time in such cases (especially where a mortgage advance ‘benefit’ has had an impact on the ‘recoverable amount’ actually ordered to be paid).

      The same would be true, I suggest, where a ‘criminal lifestyle’ assumption has been relied upon on the basis that a mortgage advance has been ‘transferred to the defendant’ since the relevant day. (I would suggest that it is now clear that the mortgage advance has not been ‘transferred to the defendant’ at all.)

      In practice where the mortgage advance had had no impact on the ‘recoverable amount’ it might be sensible not to pursue an appeal to the Court of Appeal out of time, but instead to wait and see if an application is made under s22 PoCA 2002 and, if it is, argue the point in the Crown Court when it considers the s22 application – on the ground that it would not be ‘just’ to make an order under s22 in relation to the ‘benefit’ of a mortgage advance which, in truth, should not have been included in ‘benefit’ at all.

      Article 1 of First Protocol to ECHR cases

      The position is, I would suggest, less clear cut where an appeal out of time is being considered on the basis of an infringement of Article 1 of the First Protocol of the European Convention on Human Rights (A1P1).

      Firstly such an appeal does more clearly fall into the category of a ‘change of law’ case because the Supreme Court held in Waya that s6(5) PoCA 2002 (which deals with the ‘recoverable amount’ ordered to be paid) should be ‘read down’ so as to comply with A1P1.

      Secondly in many cases the Crown Court will have determined a ‘benefit’ figure significantly in excess of the ‘recoverable amount’ ordered to be paid. In these circumstances there may be some difficulty in sustaining an argument that the ‘recoverable amount’ is disproportionate so as to infringe the defendant’s A1P1 rights.

      Thirdly, many confiscation cases are settled by negotiation, compromise and agreement. There may be a difficulty in persuading the appeal court that the defendant agreed to an order which ought on appeal to be held to be ‘disproportionate’.

      Fourthly, what is – or is not – a ‘disproportionate’ order in terms of A1P1 is by no means clear cut. Whilst a defendant may feel the order made against him was disproportionate an appeal court may not agree that it was.

      So it will be much more difficult, in my view, to obtain leave to appeal out of time in an A1P1 case than in a mortgage case. But the practicalities may be that the full Court might have to hear the merits (or lack of merits) of an individual’s A1P1 case before it could determine whether there was a “substantial injustice” done to the defendant as a result of a failure to address the issue of ‘disproportionality’ in the Crown Court, which would cause it to grant leave to appeal out of time.

      David

  7. Ron Barker
    April 8, 2013 | 11:03 pm

    David

    I do understand the points that you have made but public policy dictates that a change in the law is not retrospective.

    PS Bell was not a matter of interpretation it was a matter of the wrong law was applied.

    The prosecution in Bell relied on the 1992 regulations which had been superseded by the 2001 regulations.

    From 1 June 2001, Regulation 13 (Person liable to pay the duty) of the Tobacco Products Regulations (SI 2001 No 1712) superseded Regulation 5 (Person liable to pay the duty) of the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations (SI 1992 No 1315). It changed and narrowed the categories of person liable to pay excise duty countable as benefit in tobacco-smuggling cases. Under Regulation 13, the persons liable for the duty are:

    The person holding the tobacco products at the excise duty point; and

    any person who caused the tobacco products to reach an excise duty point.

    The new Regulations do not use the expression “importer” and they exclude the consignee, who was previously made liable.

    • David Winch
      April 9, 2013 | 12:55 am

      Ron

      (I have amended your response slightly to refer – as I think you must have intended – to the 1992 Regulations being superseded.)

      I think we both agree that Bell was decided by the Court of Appeal looking at what the law actually was at the time of the hearings in the Crown Court – rather than the mistaken view of the law held by the Crown Court at that time.

      The Court of Appeal then made the decision which the Crown Court should have made at the time and (hopefully) would have made at the time if the correct law had been known to the Crown Court then.

      So the decision in Bell does not, in that sense, depend upon any subsequent development of the law as a result of more recent case law. (Although the original error came to light as a result of a more recent case being heard in the Court of Appeal.)

      But if you are of the opinion that the decision of the Supreme Court in Waya will have no impact on any confiscation orders made in Crown Courts prior to 14 November 2012 (when the Supreme Court announced its decision) then we must agree to disagree on that.

      My understanding is that a number of new appeals based on the decision in Waya are already heading towards the Court of Appeal.

      I expect that many of those appeals will not be based on any change in the law – but will instead be based on the argument that the Crown Court failed to correctly apply the law (as it was at the time) to the facts of the case (in part from a failure to ‘ask the right questions’) and that has resulted in a substantial injustice being done to the defendant.

      We shall have to wait and see what happens!

      David

  8. Ron Barker
    April 9, 2013 | 7:08 am

    David

    I think that we can agree on most of your last post. We are now back to the simple position of appealing out of time. Appeals out of time are notoriously difficult. Again this is because of public policy, under the heading you cannot have two bites of the cherry. That is why the best chance of out of time appeals are always based on fresh evidence.

  9. Ron Barker
    April 9, 2013 | 7:26 am

    David

    Here is some case law that may be of interest to you:

    In R v Ramsden (1972) Crim L.R. 547 the Court of Appeal refused to allow an appeal out of time. The Court said that alarming consequences would flow from a policy of permitting the re-opening of cases by granting a substantial extension of time on the ground that a Superior Court had removed a widely held misconception as to the prior state of the law. Bridge J:
    ‘Where a subsequent decision of a superior court has produced an apparent change in the law, that coupled with other circumstances may be a factor which will induce the Court to grant leave to appeal out of time, nevertheless in the last analysis this must in every case be a matter of discretion. In the circumstances of the present case’ he goes on ‘we are quite satisfied that the material before the Court is not such as to move us to exercise our discretion in favour of granting the very long extension of time sought, and the application is accordingly refused’.” Richardson & Ors, R v [1996] EWCA Crim 1633 (5th December, 1996)

    Director of Revenue & Customs Prosecutions, R v Criminal Cases Review Commission [2006] EWHC 3064 (Admin) (05 December 2006) The Divisional Court upheld the independence of the Criminal Cases Review Commission (CCRC) when determining which cases it should refer to the Court of Appeal. The human rights group Liberty intervened in the case. The decision resolves a potential conflict between the CCRC and the Criminal Court of Appeal in relation to appeals based on the subsequent development of the law by judicial decision. If applied to directly, the Court of Appeal may refuse to give appellants leave to appeal out of time if it does not believe the development of the law means they have suffered “substantial injustice”. However, if a case is referred to it by the CCRC the Court of Appeal has no choice but to consider that case. The Divisional Court has confirmed that the CCRC has no obligation to take into account the approach of the Court of Appeal to granting leave when making its decision to refer a case.

    Ramzan & Ors, R v [2006] EWCA Crim 1974 (21 July 2006)
    :

    C. Leave to appeal out of time
    1.30 It is the very well established practice of this Court, in a case where the conviction was entirely proper under the law as it stood at the time of trial, to grant leave to appeal against conviction out of time only where substantial injustice would otherwise be done to the Defendant. Lesser (1939) 27 Cr.App.R 69 is an early example of emphasis that absent special reasons an application out of time will not be allowed. In Ramsden [1972] Crim LR 547 a Defendant who had been convicted of dangerous driving before Gosney (1971) 55 Cr.App.R 502 had held that fault was a necessary ingredient of the offence, was refused leave to appeal out of time after that latter decision had been published. The Court observed that alarming consequences would flow from permitting the general re -opening of old cases on the ground that a decision of a court of authority had removed a widely held misconception as to the prior state of the law on which the conviction which it was sought to appeal had been based. No doubt otherwise everyone convicted of dangerous driving over a period of several years could have advanced the same application.

    1.31 In Mitchell (1977) 65 Cr.App.R 185 Lord Lane CJ re -stated the principle thus:
    “In should be clearly understood, and this Court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.”
    In that case the Court granted leave, because it had before it a perfectly valid and timely appeal against sentence which could not properly be considered without investigating whether the Appellant had been guilty or not, and, since the evidence necessary to conduct that investigation remained available there would be substantial injustice to the Appellant if leave were refused.

    1.32 In Hawkins [1997] 1 Cr.App.R 234, the Defendant had been convicted, upon plea of guilty, of offences of obtaining property by deception prior to the decision of the House of Lords in Preddy [1996] 2 Cr.App.R 524 and in circumstances which the latter decision demonstrated did not amount to the offence. This Court refused him leave to appeal. Lord Bingham CJ reviewed the authorities and concluded:

    That practice may on its face seem harsh. On the other hand, the consequences of any rule are equally unattractive. It would mean that a defendant who had roundly and on advice accepted that he had acted dishonestly and fraudulently, and pleaded guilty, or who had been found guilty and chosen not to appeal, could after the event seek to reopen the convictions. If such convictions were to be readily reopened it would be difficult to know where to draw the line or how far to go back . . . It is plain, as we read the authorities, that there is no inflexible rule on this subject, but the general practice is plainly one which sets its face against the reopening of convictions recorded in such circumstances. Counsel submits – - and in our judgment submits correctly – - that the practice of the Court has in the past, in this and comparable situations, been to eschew undue technicality and ask whether any substantial injustice has been done.”
    Lord Bingham confirmed the same test in Campbell [1997] 1 Cr.App.R 199 at 206E.

    Rowe, R. v [2008] EWCA Crim 2712 (04 November 2008)

    Cottrell, R v [2007] EWCA Crim 2016 (31 July 2007)
    58. “…In our judgment, in these cases, it is not open to the Commission lawfully to apply a policy based on the conclusion of the Divisional Court that it was “under no obligation to have regard to, still less to implement” the practice of the court. The practice must be addressed and evaluated in every case. Just as the court will not normally extend time, a conviction should not normally be referred on the basis of a change of law. We repeat paragraph 46 of this judgment. In the final analysis, however, provided the Commission addresses and gives proper weight to the law and practice of the court, it must exercise its own independent and fact specific judgment whether to refer a case.”

    El-Kurd & Ors, R v [2007] EWCA Crim 1888 (26 July 2007) Times Law Report Regina v Cottrell Regina v Fletcher: It would be disturbing and productive of public disquiet if the commission were to adopt an approach to change-of-law cases which conflicted with the approach of the court.

    Kansal, R v. [2001] UKHL 62 (29 November 2001) that, although HRA is retrospective in respect of proceedings brought by or at the instigation of a public authority, it is not retrospective for appeals in such proceedings, was mistaken: the decision would, however, be followed.

    104. In R v Mitchell [1977] 65 Cr App R 185, 189 Geoffrey Lane LJ stated:
    “This is an application for an extension of time in which to appeal against conviction. It should be clearly understood, and this Court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.”
    And in R v Campbell [1997] 1 Cr App R 199, 206F Lord Bingham CJ stated:

    “It would be quite contrary to the general practice of this Court to permit convictions to be reopened because the law has changed since the date of conviction”.

    Kansal, R v [2001] EWCA Crim 1260 (24th May, 2001)

  10. Ron Barker
    April 9, 2013 | 7:37 am

    PS: I think that I will rely on my first statement: “R v Mitchell [1977] 65 CAR 185; [1977] 1 W.L.R. 753 is still good law (but there is always room for some judicial gymnastics in the interests justice)” and I am sure that you will produce the best forensic accountant report for anyone interested in appealing out of time re confiscation case based on Waya . I certainly would recommend you every time.

    • David Winch
      April 9, 2013 | 9:43 am

      Ron

      Thank you, that is very kind.

      David

      • Ron Barker
        April 19, 2013 | 1:47 pm

        Hi David

        Another reserved judgement case:

        Hursthouse, R v [2013] EWCA Crim 517 (15 March 2013) This is an appeal against a confiscation order made in the Crown Court at Nottingham on 22 October 2010. This matter has previously been argued before a constitution which reserved judgment and then learnt of the hearing before the Supreme Court in R v Waya [2012] UKSC 51, [2012] 3 WLR 118. It postponed judgment pending that decision, following which it was decided that there should be a full re-hearing before a new constitution of this court

        [33]. The result of the decision in Waya is that section 6(5) of the Act must be read subject to the requirement of proportionality, so that a judge making a confiscation order should not make one in a sum which would be disproportionate to the aim of removing from criminals the pecuniary proceeds of their crimes. Waya makes clear that where property obtained by a criminal has been restored or stands ready to be restored in full to a victim of a crime in circumstances where there is no additional benefit to the offender, a confiscation order will be disproportionate and a breach of A1P1. An order which required the offender to pay the same sum again would amount to a further pecuniary penalty, rather than achieving the legislative objective of removing from a defendant his proceeds of crime. What would in effect amount to double recovery would be disproportionate. In the circumstances we are persuaded that the making of the confiscation order in this case offends A1P1 as being disproportionate. Accordingly, the appeal must be allowed and the confiscation order quashed.

  11. sarah foster
    April 15, 2013 | 10:54 am

    Hi
    Any news yet from the Supreme Court of how they will deal with old confiscations that were exactly same as Waya?

    • David Winch
      April 15, 2013 | 11:20 am

      No news yet. I would expect something will happen in the Court of Appeal later this year. When it does I will deal with it on this blog.

      David

  12. sarah foster
    April 15, 2013 | 12:25 pm

    Thanks for reply my case is in for appeal out of time exact same as waya i was given a order to pay £200,000 and have paid since 50k and since this waya case i appealed straite away and is pending. my case is exact the same i had inflated my income and obtained the mortagage but paid it of in 4 years but still got got confiscation of double recovery.no third party in loss they gopt ther intrest and early redemption fees my case is as strong as waya and i was orders the money 1 year and 6 months ago. my only worry is the p.o.c.ca teaam are still very keen on the enforcement hearing i have also put an application to vary the order due to the fall of property market and the crown ajourned that due to the outcome of the appeal but pocca keeps trying to send me to magistrates is it possibble that the mag court will carry on with the enforcment hearing and ignore the appeal?

    • David Winch
      April 17, 2013 | 7:52 am

      Sarah
      You need advice from your solicitor about this. I am not a lawyer – I am an accountant.
      David

  13. Ron Barker
    May 3, 2013 | 1:52 pm

    David

    The Court of Appeal has given some guidance on the point in question.

    Jawad v R [2013] EWCA Crim 644 (03 May 2013) This appeal against a confiscation order raises a question about the relationship between confiscation orders and compensation orders in the light of the recent decision of the Supreme Court in R v Waya [2012] UKSC 51.

    Note: Change of law and extension of time

    [28]. It was at first thought that this appellant needed a grant of an extension of time to enable him to appeal. If he had, that would have raised the question whether someone against whom a confiscation order was made entirely in accordance with the law as it was understood to be at the time ought to be granted an extension of time if he seeks to appeal on the basis of a change of law made subsequently – in this case as a result of the Supreme Court decision in Waya. As it turns out, the appellant does not need any extension of time. A very few days’ extension was granted by the single judge and we thus have before us a properly constituted appeal which must be determined according to the law as it now stands.

    [29]. We therefore do not have to decide the question mentioned and we have had only brief submissions upon it. We nevertheless think that we should make clear the general approach of this court, over many years, to change of law cases. An extension of time will not be granted routinely in such a case simply because the law has changed. It will be granted only if substantial injustice would otherwise be done to the defendant, and the mere fact of change of law does not ordinarily create such injustice. Nor is the case where an extension will be refused limited to one where, if the law had been correctly understood at the time of the proceedings in the Crown Court, a different charge or different procedure might well have left the defendant in a similar position to that in which he now finds himself. The line of authority setting out this court’s approach culminates in R v Cottrell & Fletcher [2007] EWCA Crim 2016; [2008] 1 Cr App R 7, where the judgment was given by Sir Igor Judge P, as he then was. But that line of authority includes similar pronouncements by successive Lords Chief Justice from Lord Lane CJ onwards. An early example is R v Mitchell (1977) 65 Cr App R 185 in which Lane LJ (as he then was) expressly approved the decision of this court in R v Ramsden [1972] Crim LR 547. There, a defendant who had been convicted of dangerous driving before Gosney (1971) 55 Cr App R 502 had held that fault was a necessary ingredient of the offence was refused leave to appeal out of time after the latter decision had been published. The Court observed that alarming consequences would flow from permitting the general re-opening of old cases on the ground that a decision of a court of authority had removed a widely held misconception as to the prior state of the law on which the conviction which it was sought to appeal had been based. No doubt otherwise everyone convicted of dangerous driving over a period of several years could have advanced the same application. A similar proposition was recently adumbrated by the Supreme Court of Ireland in A v Governor of Arbour Hill Prison [2006] IEFC 45 where the court held that absolute retroactivity would lead to ‘dysfunctional effects in the administration of justice.’ A further clear example from the jurisprudence of the Court of Appeal Criminal Division is R v Ballinger [2005] EWCA Crim 1060; [2005] 2 Cr App R 29.

    [30]. Whilst the point does not arise in the present case, and we do not decide it, we think it important that defendants should not be encouraged to think that the effect of Waya is likely to be that confiscation orders made when no disproportionality point was taken, or was rejected, can now be re-opened. We doubt very much that, if an extension of time had been required in the present case, we should have granted it.

    • David Winch
      May 3, 2013 | 3:00 pm

      Ron

      Many thanks for drawing this decision of the Court of Appeal to my attention so quickly.

      In the Jawad case counsel for the defendant invited the Court of Appeal to reconsider a point considered in the Crown Court – whether there would be double-counting by the making of both a confiscation order and a compensation order – but to reconsider it in the light of the subsequent Supreme Court judgment in the case of Waya.

      Permission to appeal a few days out of time had already been granted by the single judge. So, strictly speaking, that was not an issue for consideration by the full court and, as the judgment makes clear, they did not formally decide it.

      However this was not a case in which an important relevant issue had not been considered at all in the Crown Court when the confiscation order was made. Such an argument may well however be made in a case involving alleged or actual mortgage fraud (the issue being whether the defendant ‘obtained’ the mortgage advance).

      So I read the Court of Appeal’s para [30] as underlining the point that it is not the case that virtually every confiscation order made in Crown Courts over the last decade or more can now be re-opened in consequence of the “proportionality” point in Waya.

      The Court of Appeal has usefully now said “the mere fact of change of law does not ordinarily create such injustice” as to merit permission to appeal out of time.

      That takes the argument a step further – but I don’t think it brings the debate to an end.

      David

      • Sarah
        May 5, 2013 | 1:38 am

        Hi David
        The court of appeal do say mere fact of change of law does not create injustice. But will be granted if substantial injustice is done. Para 29. As I understand a case exactly similar to Waya does still have a chance to out of time appeal?

      • Ron Barker
        May 17, 2013 | 1:32 pm

        Hi David

        Another delayed case bites the dust!

        Beazley, R. v [2013] EWCA Crim 567 (20 March 2013)
        http://www.bailii.org/ew/cases/EWCA/Crim/2013/567.html

        19.This case has come to this court later than it otherwise would because we delayed hearing it in the knowledge that submissions being made before the Supreme Court in Waya might lead to a reconsideration of the correct approach. To the extent that we have mentioned, they have done. But we want to make it abundantly clear that nothing in this case could begin to justify a reduction of the order which is otherwise appropriate in reliance on Article 1 Protocol 1. There is nothing remotely disproportionate about removing from this unlawful business the proceeds which it has generated. It is not in any way analogous to the kind of double recovery situation contemplated explicitly in Waya. The judgment in Waya specifically endorses the longstanding approval to the difference for confiscation purposes between gross proceeds on the one hand, which are the measure of benefit, and profit on the other, which is not. That is explicit in paragraph 26. There may be some other special cases in which a confiscation order can properly be described as disproportionate, but the fact that it is based on gross proceeds of crime is not one of them. Nor is there anything in this case which could possibly justify the description ‘disproportionate’, whether under Waya or otherwise.

      • Simon hall
        May 19, 2013 | 7:16 pm

        Hi David just want your opinion a case exact and I mean exact same as waya which has been subject to a confiscation order that has been made in 2011 and payment is still outstanding to the cps but has been subject out of time appeal via waya case.in jawad para 30 the Supreme Court state they doubt very much old cases would be reopen due to waya case. The question I’m asking is what do you reckon will be the rule out for cases that are recent and payment still outstanding.(mortgage fraud).?

        • David Winch
          May 19, 2013 | 8:41 pm

          Simon

          I do not think an appeal out of time is more (or less) likely to be considered based on whether the confiscation order has been paid or not.

          I would suggest it will depend more upon whether there are other grounds for appeal (in addition to those arising from the Supreme Court judgment in Waya) and the extent of the injustice which might arise if the appeal were not considered.

          David

          • Simon hall
            May 20, 2013 | 1:08 am

            Thanks

  14. Sarah
    May 5, 2013 | 1:22 am

    Before Waya explained the application of A1P1 to POCA confiscation orders, this court had confronted in Morgan and Bygrave [2008] EWCA Crim 1323; [2009] 1 Cr. App. R. (S.) 60 the possible case of a defendant who had restored to his victim the whole of what he had obtained by his crime. The decision that a stay for abuse of process could be an available method of preventing a disproportionate order from being made is overtaken by Waya (see [17]-[18] in that decision). But the outcome of the case of Morgan on its facts is illustrative of what we have said above about the difference between an order for repayment by way of compensation and actual restoration to the loser. Whilst this court held that a confiscation order might be oppressive and call for a stay if it would take again a sum already repaid, or available for immediate repayment, it declined on the facts to interfere with the order made below. It did so because it appeared unlikely that the defendant would in fact repay the loser. The defendant was asserting that he was ready to repay the outstanding balance (of about £50,000) but the evidence showed that the only way he could do it was by selling his matrimonial home, which was an uncertain event made even less certain by the existence of a pending divorce and inevitable financial claims between the spouses. This court concluded that it was probable that the defendant was in no position to make the repayment he said he was willing to make. It adverted to the differences in enforcement between compensation on the one hand and POCA confiscation orders on the other.
    Waya requires the court to consider whether a POCA confiscation order is disproportionate. We are satisfied that it generally will be disproportionate if it will require the defendant to pay for a second time money which he has fully restored to the loser. If there is no additional benefit beyond that sum, any POCA confiscation order is likely to be disproportionate. If there is additional benefit, an order which double counts the sum which has been repaid is likely, to that extent, to be disproportionate, and an order for the lesser sum which excludes the double counting ought generally to be the right order. But, for the reasons explained above, we do not agree that the mere fact that a compensation order is made for an outstanding sum due to the loser, and thus that that money may be restored, is enough to render disproportionate a POCA confiscation order which includes that sum. What will bring disproportion is the certainty of double payment. If it remains uncertain whether the loser will be repaid, a POCA confiscation order which includes the sum in question will not ordinarily be disproportionate. Correct me if I’m wrong this case was not disproportionate therefore if a case similar to waya was disproptionate is injustice as said in the above paragraph a defendant who has to pay a second time. NOT CHANGE OF LAW. Pardon me if I’m wrong.

  15. Nick
    May 5, 2013 | 9:50 am

    Para 30 states confiscation orders made with NO disproportionality point likely are not to be open. That does not mean confiscation orders that were disproportionate will not be opened. Para 21

    Waya requires the court to consider whether a POCA confiscation order is disproportionate. We are satisfied that it generally will be disproportionate if it will require the defendant to pay for a second time money which he has fully restored to the loser. If there is no additional benefit beyond that sum, any POCA confiscation order is likely to be disproportionate. If there is additional benefit, an order which double counts the sum which has been repaid is likely, to that extent, to be disproportionate, and an order for the lesser sum which excludes the double counting ought generally to be the right order. But, for the reasons explained above, we do not agree that the mere fact that a compensation order is made for an outstanding sum due to the loser, and thus that that money may be restored, is enough to render disproportionate a POCA confiscation order which includes that sum. What will bring disproportion is the certainty of double payment. If it remains uncertain whether the loser will be repaid, a POCA confiscation order which includes the sum in question will not ordinarily be disproportionate.

  16. Lee winch
    May 5, 2013 | 10:43 pm

    Whilst the point does not arise in the present case, and we do not decide it, we think it important that defendants should not be encouraged to think that the effect of Waya is likely to be that confiscation orders made when no disproportionality point was taken, or was rejected, can now be re-opened. We doubt very much that, if an extension of time had been required in the present case, we should have granted it.

    If this would be the case why was Waya appeal granted that was reopened 3 years later this would be very unfair?

  17. Mr Michael Saward
    May 11, 2013 | 9:07 pm

    I am hoping to bring an appeal out of time and would appreciate any advice. I understand must contact lawyers re this, but here is the gist of the case. In Dec 2005 a confiscation order was placed against me in the sum of 14,205.38. With great difficulty I have currently paid all save for 5,317.79 which includes 4,012.41 in interest. I am now retired aged 66 yrs and in receipt of state pension only. The Confiscation Unit are requesting the enforcement order be invoked as I can no longer afford to pay anything.

    The case concerned a conspiracy to import drugs and I served a five year sentence for being found guilty. At the material time I owned a large vessel which did not figure in the case whatever but was valued at 10,550 pounds (what I paid for it some 6 years previously). No account was mentioned of the fact that I owed some 7,000 pounds to the Harbour Authority and under Maritime law they must be paid out before other creditors, because the debt is secured on the vessel itself and would automatically pass to the new owner if sold without making this payment. None of this was mentioned in court as all efforts were placed in defending me from the actual conspiracy charge. My part was to bring a small boat to the UK from Belgium with a man as passenger – unfortunately he had planned to also bring drugs to the UK. At no time had I been in possession or even seen any drugs. I was arrested in Belgium and extradited as part of a big Police joint operation. I had no benefit – no payment even being discussed, never in possession of drugs. I was not guilty of this charge and still cannot move on with my life. Can anyone advise my next move please? The hearing is set for 23rd May at Birmingham magistrates where the magistrate is desperate to imprison me – We have met twice in the proceedings.
    Yours Mike

    • David Winch
      May 11, 2013 | 11:58 pm

      Mike

      As you say, you need to consult with your lawyers.

      Draw their attention to the possibility of your making an application to the Crown Court (NOT the Magistrates) under s23 PoCA 2002 to have your ‘available amount’ recalculated based on your current situation. If your current ‘available amount’ is less than the amount outstanding the Crown Court can now vary your confiscation order so that you are required to pay no more than your current ‘available amount’. (The Magistrates have no power to vary your confiscation order.)

      Generally the Magistrates’ Court ought not to imprison you if you are genuinely unable to pay the amount outstanding (but it may be difficult to convince them that you are genuinely unable to pay).

      If the worst happens and you are sent to prison you should not be required to stay there more than 10 weeks (but this depends on the exact figures of the amount outstanding and the original default sentence – which should have been for not more than 12 months).

      An appeal out of time against your original confiscation order is a different process altogether from an application under s23. I would urge you to go down the s23 route rather than an appeal out of time (which would be unlikely to get anywhere).

      Talk all this over with your lawyer – sooner rather than later!

      David

      • Hopkins
        May 12, 2013 | 10:25 pm

        Why is it unlikely he won’t get out of time appeal he has no benefit as he claims just as waya.

        • David Winch
          May 13, 2013 | 8:50 am

          Whilst Mike says “I was not guilty of this charge” the fact is he was convicted. Mike is not suggesting that he has new evidence. He does not indicate any basis on which he could appeal his conviction.

          Presumably the court found at the time of his conviction that, for confiscation purposes, he “obtained” the drugs (probably jointly with his co-defendant). That does not require that he was ever physically in possession of them himself or that he ever received any payment if he and his co-defendant were jointly engaged in smuggling the drugs into the UK (which presumably is what he was convicted of).

          So Mike has not suggested any basis for appealing against the benefit figure found by the court. Added to that the case is now very old. Seven or 8 years have passed since he was convicted and he has not appealed either the conviction or the confiscation.

          I cannot see anything in the decision of the Supreme Court in Waya which is relevant to Mike’s case.

          So realistically I do not see any prospect for Mike in an appeal out of time. But he should talk this over with his lawyers.

          But an application to amend Mike’s ‘available amount’ (not his ‘benefit’) under s23 should be relatively easy to get into court. It does not depend on making any application which would be out of time. It is dealt with in the Crown Court, not the Court of Appeal (and not the Magistrates’ Court).

          If Mike’s ‘available amount’ is reduced to what he actually has available now, as a result of a s23 application, his risk of going to prison should be removed. Also he can then pay off the newly calculated figure and, as he puts it, ‘move on with his life’.

          David

          • Samantha Evans
            May 29, 2013 | 11:46 am

            Hi David any more update from Supreme Court?

    • Lee Simms
      May 12, 2013 | 10:22 pm

      Hi advice you to put a application to vary the order as David has said and get the magistrates hearing adjourned but may I ask your confiscation order was made in 2005 it’s 2013 how have you lasted so long without a enforcement hearing?

  18. Mick
    June 10, 2013 | 11:33 pm

    Hi David, after reading your comments, I have had confiscation hearing in 2005, It has never been paid. I do not live in the uk but must return shortly. There is an arrest warrant for Dover Mag Court. I have no means to pay the only asset is in negative equity how can I prevent the triggering of the sentence,
    Any advice will be appreciated.

  19. David Winch
    July 21, 2013 | 9:52 am

    I have now added a blog article commenting on the latest Court of Appeal judgment (on 19 July 2013) in the case of Bestel & Others v R.

    The article is Appealing a confiscation order out of time.

    David

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