Appealing a confiscation order out of time

The Court of Appeal have now tackled issues relating to appeals against old confiscation orders which appear to be incorrect following the Supreme Court’s decision last year in R v Waya.

 

The conflicting principles

In a previous blog article I described the general background.  Briefly, an appeal against a decision in the Crown Court normally has to be initiated within 28 days of the decision being made (that involves some form filling).  An appeal can still be considered even where that deadline has been missed – but only if permission can be obtained from the Court of Appeal (either from a single judge or the full court).

In deciding whether to give permission the Court of Appeal has to consider two conflicting principles.  Firstly the outcome of proceedings should be just.  Secondly the outcome of proceedings should be final.  It would be chaotic if every time there was a new interpretation of the law all previous relevant decisions had to be reconsidered by the appeal courts.

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.  But this has sometimes been subject to exceptions where the defendant has suffered a substantial injustice.

 

Wrong – but a substantial injustice?

But if the Crown Court has made a confiscation order which, whilst it appeared to be correct when it was made, in the light of more recent authority now is obviously wrong – is that enough to show a substantial injustice which the appeal courts should correct?

Most of the previous case law on appeals out of time in what are sometimes referred to as ‘change of law’ cases did not relate to confiscation orders.  It could be argued that confiscation cases are rather different from most other cases because a confiscation order involves payment of money and – if that money has been paid in error – then it would be a simple matter to pay it back.

Also in confiscation cases there is often a long delay between the order being made and it having a full effect.  This is because the defendant is ordinarily allowed time to pay and even more time will elapse before a default sentence will be activated.

So it could be argued that there is a greater opportunity for courts to, if you like, correct previous mistakes in relation to confiscation orders.

 

Mr Jawad’s case

The Court of Appeal took the opportunity in May 2013 to comment on the situation in the case of R v Jawad [2013] EWCA Crim 644 where, perhaps fearing a deluge of late appeals, the court commented at paragraph [29]: “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”.

But in the case of Jawad leave to appeal out of time (by just a few days) had already been granted by the single judge before the matter came before the full court – so that judgment did not explore that issue more fully.

 

The cases of Mr Raza, Mr Bashir & Mr Bestel

More recently these issues have been fully explored in the judgment of the Court of Appeal in the case of Bestel & Others v R [2013] EWCA Crim 1305 (19 July 2013).

In essence this judgment confirms that, even in a confiscation case, the mere fact that the Crown Court confiscation order now seems incorrect is not, of itself, sufficient to persuade the court to allow an appeal to be heard out of time to correct the position.

This is most clearly demonstrated in relation to Mr Naim Raza who had pleaded guilty to two counts of mortgage fraud involving total loans of £237,505.  In subsequent confiscation proceedings the Crown Court had ruled in July 2011 (before the Supreme Court judgment in Waya had been made) that Mr Raza’s benefit was the total amount borrowed – £237,505.  Mr Raza had an available amount, based on the equity in the properties and the value of his business, of £203,069.  A confiscation order was therefore made for £203,069.

After the Supreme Court judgment in Waya in 2012, Mr Raza sought permission to make a late appeal against his confiscation order.  It was agreed by all parties that, on the basis of the law as explained by the Supreme Court in Waya, Mr Raza’s benefit should only have been £10,710 (rather than £237,505).

 

Permission refused

But the Court of Appeal refused to allow Mr Raza to appeal against the incorrect benefit figure.  The fact that the benefit figure now appears incorrect, simply as a result of subsequent developments in the understanding of the law, was not enough to warrant permission to appeal out of time to re-open the determination of Mr Raza’s benefit.

The appeal court noted that the confiscation order had been limited to Mr Raza’s available amount and that, if his assets in the event proved to realise less than the figure assessed by the Crown Court, he could seek an adjustment to the confiscation order under s23 PoCA 2002.  So the Court of Appeal did not consider that Mr Raza risked imprisonment unjustly as a result of the benefit figure being too high.

In the same judgment the Court of Appeal also refused permission to appeal the confiscation order which had been made against Mr Sahid Bashir in December 2011.  The Court of Appeal noted that, at the time of the Crown Court proceedings, Mr Bashir had agreed the benefit figure in his case.  The appeal court did not consider that a substantial injustice was done by holding him to that agreement.  So Mr Bashir was not permitted to make a late appeal against his confiscation order.

 

Permission granted

But in the case of Jean Pierre Bestel the Court of Appeal did give permission to appeal out of time and it referred his confiscation order back to the Crown Court for reconsideration.  This was because the appeal court found a number of issues in Mr Bestel’s case had not been dealt with properly by the Crown Court when his confiscation order was made in July 2012.  In particular the Crown Court judge had not given proper consideration to all the evidence which was before him at that time regarding Mr Bestel’s available amount.

Because Mr Bestel’s case has now to be reconsidered in the Crown Court both his benefit figure and his available amount may be amended.  The Crown Court will reconsider the position in the light of the law as it is now understood to be, having regard to the Supreme Court judgment in Waya.

 

Further appeals

These cases clarify the picture in relation to confiscation appeals out of time.  But no doubt further appeals will come before the courts – and these cases do not deal with the question which may arise on an application by the prosecution under s22 PoCA 2002 to pursue further amounts where a confiscation order has been limited to the available amount of the defendant at the time the order was made.  In considering whether it would be just to make an order under s22 will a court have to reconsider the circumstances in which the benefit figure was previously determined – and the changed legal position as a result of subsequent case law?  That remains to be resolved.

David

(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.)

20 thoughts on “Appealing a confiscation order out of time”

  1. The benifit of Mr raza has been admited 10k odd but still want lot more of him Mr raza i advice you to go to the Supreme Court this is very unfair on you as i understand at the time the law was understant fine but you havent paid all the money so its still a open case. Why was wayas appeal accepted your case is exact same as waya this is substancial justice.

  2. Iv read all the judgements on all 3 cases. This country is becoming very unfair and carless, I mean prime example Raza life has been destroyed bussiness,house and now jail probably. Its seems like a vendette against Raza a very hearless desicion yes SIR you are right why did you let wayas appeal and not Raza Iv read many articles and there all injustice I think there needs to be a reconsideration in the parliment about this big confiscation orders that have been made in error. Yes If i was Raza i would go to supreme court and slash this judgment. Why dosent the goverment just start robing banks as they are robbing innocent people cause of the power.

  3. Hi. Bestel Appeal granted due to crown did not look at evidence propley, what about Raza the evedence was in the air,money had been paid no third party in loss. But you still want money of him to whom does he owe this money to cant anyone see that lets talk about who will benifit from razas cofiscation team the goverment????? or the p.o.c.c.a

  4. What Mr Raza can do now is an interesting question.

    I have my doubts as to whether he could get the Supreme Court to look at his case at all. The Court of Appeal did not decide the case against him – they decided that they would not hear his appeal, which is different.

    If there are no appeal options available to Mr Raza in the UK courts he could take his case to the European Court of Human Rights in Strasbourg on the basis that he is being to required to pay a confiscation order which is not in accordance with the law and is not proportionate to his offences.

    Another option might be to sue the legal team who acted for him in the confiscation proceedings in 2011 on the basis that they were negligent in not advising him to appeal the Crown Court decision within the 28 day time limit.

    So we may not yet have heard the final word regarding Mr Raza!

    David

    1. Hi david yes you are correct about razas case but it seems to me he only appealed his confiscation order due to waya 2013 which did not occur in the 28days after he was ordered the confiscation order. His appeal was upon waya case if he did apply in the 28 days i think it would of got refused on the basis of the law would have been the same as when the money wordered. We all seem to forget this abuse of the system had only been found at supreme court by the 9 jugdes. I think the legal team thought the confiscation order was correct as the judge had ordered via what the law stated at the time

      1. Helen

        You are correct that Waya was not finally decided by the Supreme Court until November 2012 (Mr Raza’s confiscation order was made in July 2011).

        However the Supreme Court had first considered Mr Waya’s appeal in May 2011 and decided there were major issues to consider which needed a further hearing (which took place in March 2012).

        So by the time Mr Raza’s confiscation case was heard it was known that big changes were under consideration.

        Mr Raza’s legal team could have asked the Crown Court judge to postpone Mr Raza’s confiscation hearing until after the Supreme Court judgment in Waya was available (but the judge probably would not have agreed to do that).

        Alternatively Mr Raza’s legal team could have submitted an appeal in his case asking that that appeal be heard after the Supreme Court had finally ruled in Waya’s case. I think the Court of Appeal might well have agreed to that (they have held off consideration of some other confiscation appeals on that basis).

        But Mr Raza’s lawyers didn’t do that either. It is possible that they discussed this with Mr Raza at the time and he decided not to appeal.

        But if they didn’t at least discuss submitting an appeal with Mr Raza at the time then arguably they were negligent in not doing that and, on that basis, one possibility (it seems to me) would be for Mr Raza to sue his legal team for what he has lost as a result.

        It is pretty clear that if an appeal had been lodged within the 28 day time limit the Court of Appeal would have reduced Mr Raza’s confiscation order to £10,710.

        David

        1. David. Injustice was done by the judge and the system not the legal team. Damage had been done waya hit the lines in november 2012. Could the royal court not see the injustice double recovery but they rather said we dont want to here appeal but rather destroy his life they could of sent it back to the crown raza i asume doesnt know the law and probalbly doesent know how much legal teams know. It does state out of time appeal is aloud if substancial injustice has been done. And if this is not injustice taking some ones bussiness, and house and now probably jail. When he does NOT owe this much.

          1. I think the jugde at crown can still do justice for Me Raza when he varys the order. NIL should be the varified order as he has paid more than he benifited.

        2. Hi David just a question on rasas case if raza goes to vary the order what are the chances that he will vary it nil according to the real benefit figure which should of been 10k. I mean do you think the judge will not bare that in mind??????

          1. I doubt that there is a realistic prospect of any court in the UK varying Mr Raza’s confiscation order now. He appealed to the Court of Appeal and they turned him down.

            David

        3. hi david thanks for reply can there be appeal to the humans right court without a legal team? and what would be the first step.

  5. great argument totally disater on razas appeal outcome pal go to humans right court hope you the best what is wrong with the justice here a bussiness man been ripped of by the country total sham. WRITE TO THE QUEEN.

  6. hi david iv been studying mr razas case today he had a date to vary the order and cps was subject to a freash value on his property as mr razas family agreed if the equity would be in there limit they would come forward and pay which would be the new order. Cps got a value and the value which they got was just what the family accpected then today when it was to be varied infront of jugde at crown court. The cps turned round and said there should be no varification order for this hearing Mr Raza should go sell his house first and deal with enforcment hearings then come back to the crown for varyfication. Everybody was in shock but the judge said he would vary it as indication was given from court of appeal. Why do you think the cps changed on the last minute? plz do reply thanks

  7. Hi I have appealed at European courts breach of article1 portocol 1 protection of property there has been injustice with me my case was not a old case or closed as the money was still owed to poca and as the judge of royal courts London said my confiscation order should of been 10,700 not 237,000 .

  8. I’m a solicitor and are dealing with a similar case as mr Raza I would really like to hear your outcome from ECHR. Hope you the best it defiantly is a breach A1P1, if you win you will or be allowed ‘just ‘satisfactory’ other words means compensation. I think the government will come to a friendly agreement as case like this easily identified of the breach. Gud luck.

  9. I was taken to court from custory and there was no barrister to represent me the cps asked for an ajourment because the police was not there the judge refused the barrister arrived 10 mins later and said he had no papers because he thought it was a mention this was a cannabis case and the defence foresic sci was not there I was told to accect 163,000 valuation of cannabis plants or risk paying 6000000 I WAS RAILROADED BY MY BARRITER TO ACCEPT THIS I made a data protector request to kent police and in bundle was a email to officer in case from the cps saying the plants were rejected by the lab this was never disclosed at trial or at confiscation hearing and the police forensic said he did not test plants in his statement

  10. Hi am looking for help been fobbed off by solicitors ,my mum passed in 2005 ,my dad got all her assets ,but our mum didn’t write a will because we all verbally agreed as a family who would get what,in 2008 my dad got arrested and got poca ,only all the assets and monies they took were not my dads or there’s to take, I only found this out at the end of the case that £250 goes to husband and the rest between the kids ,the solicitors was very negligent,and I want my mums stuff back this has caused my so much emotional distress .please can you advise me ,thanks

    1. Kate

      You need to speak to a solicitor (I am an accountant). The problem seems to arise from the way your Mother’s estate was handled & that is what you need advice on (from a different solicitor).

      David

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