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The meaning of “dishonesty” in English criminal law

Legal wig copyright David Winch 2014
What is meant by “dishonesty” in English criminal law? When considering the meaning of dishonesty the criminal courts of England and Wales until now often referred to a case decided last century. Recently in the case of Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) [2017] UKSC 67 (25 October 2017) the UK Supreme Court reconsidered the meaning of dishonesty – and came to some new conclusions.

 

The two-stage ‘Ghosh’ test

Until October 2017 the leading case on the meaning of dishonesty in English criminal law was R v Ghosh [1982] EWCA Crim 2. In that case, decided in 1982, the Court of Appeal determined that there was a two-stage test for dishonesty. The first stage was based on an objective criterion and the second stage was based on a subjective criterion. The two stage test was put in the following terms:-

“In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.

If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.”

So until October 2017 criminal courts operated on the basis that not only must the conduct of the defendant be dishonest by the ordinary standards of reasonable and honest people (the objective test) but the defendant himself must have realised that he was acting dishonestly by that standard (the subjective test).

 

The subjective test

What was implied in Ghosh, was that a defendant was entitled to say, “I did not know that anybody would regard what I was doing as dishonest” and if he was believed he should be acquitted of dishonesty (as the subjective test was not satisfied).

But the Supreme Court has now criticised that approach, saying that “It has the unintended effect that the more warped the defendant’s standards of honesty are, the less likely it is that he will be convicted of dishonest behaviour”.

The new judgment means that it is still necessary for the jury in the Crown Court or the magistrates in the Magistrates’ Court to reach conclusions about the actual state of mind of the defendant – but only insofar as this relates to the defendant’s state of knowledge or belief as to the facts.  The Supreme Court has now said that criminal courts should no longer ask themselves whether the defendant himself realised that he was acting in a way which ordinary people would consider to be dishonest.

 

The new legal position

So instead of the Ghosh test, when dishonesty is in question the court must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The question is not whether that belief is reasonable – the question is whether it is genuinely held.  Once his actual state of mind as to knowledge or belief as to the facts is established, the question whether his conduct was honest or dishonest is to be determined by the jury or magistrates by applying the (objective) standards of ordinary decent people.

There is no longer any requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.

One consequence of this is that the definition of “dishonesty” is now consistent between criminal and civil law in England and Wales.

 

An example

Suppose a person is newly arrived in England and he has come from a country in which all public transport is free.  He gets on a bus in London and on arriving at his destination gets off without paying.  He is charged under s3 Theft Act 1978 with dishonestly making off without payment.  But was he dishonest?

The issue is ‘Did he genuinely believe that no payment was required?’.  If he did then he has not been dishonest and should be acquitted.  If, on the other hand, he did know that payment was required then he was dishonest by not paying.

But this issue concerns the defendant’s belief about the relevant facts – the issue is not about his understanding of what constitutes “dishonesty”.  That is the change in the law as a result of the Supreme Court’s ruling in October 2017.

 

Is the defendant’s state of mind irrelevant?

So is it now totally irrelevant that the defendant wrongly believed that what he was doing was acceptable behaviour?  Well, not entirely.  A defendant’s deluded belief that he was not acting dishonestly (for example because he hoped one day to repay money which he was stealing and spending) will not now result in his acquittal.  But it could be put forward in mitigation on sentencing that he had no intention to cause harm to his unfortunate victim.

Contacting us

Our contact details are here.

David

(Note: This article applies to matters arising under the provisions of the criminal law in England and Wales.  Appropriate professional advice should be sought in each individual case.)

Money Laundering Regulations 2017

Big Ben imageThe final wording of the new Money Laundering Regulations 2017 was published on 22 June 2017. To give them their full title The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 came into force on 26 June 2017.  The reality is however that the new Regulations will take a year or two to be fully effective.

The Regulations run to over 100 pages.  I cannot describe them fully in a blog such as this, but I will mention a few points of interest.  These regulations replace the Money Laundering Regulations 2007 (as amended) and The Transfer of Funds (Information on the Payer) Regulations 2007.  Many of the provisions of the 2017 Regulations simply continue requirements of the 2007 ones.  But there are some changes of emphasis and important new requirements too.  The new Regulations also implement in UK law the requirements of the EU Fourth Money Laundering Directive.

  1. The hierarchy of risk assessments
  2. Written policies, controls and procedures
  3. Changes for High Value Dealers
  4. Changes for Estate Agents
  5. Politically exposed persons
  6. Banning persons with criminal convictions
  7. Conclusion
  8. Contacting us

 

The hierarchy of risk assessments

The new Regulations set out a hierarchy of risk assessments.  The UK government, in particular HM Treasury and Home Office, are required by regulation 16 to make arrangements before 26 June 2018 for a risk assessment to be undertaken to identify, assess, understand and mitigate the risks of money laundering and terrorist financing affecting the United Kingdom.

Then under regulation 17 each of the various supervisory bodies must identify and assess the international and domestic risks of money laundering and terrorist financing to which those relevant persons for which it is the supervisory authority (“its own sector”) are subject.  The supervisory body must take into account the risk assessment from HM Treasury and Home Office.

Finally under regulation 18 each ‘relevant person’ (businesses in the regulated sector) must take appropriate steps to identify and assess the risks of money laundering and terrorist financing to which its own business is subject.

In carrying out that risk assessment a relevant person must take into account information made available to it by its supervisory authority and its own risk factors. Those will include risk factors relating to its customers, the countries or geographic areas in which it operates, its products or services, its transactions and its delivery channels.

 

Written policies, controls and procedures

The new Regulations are much more prescriptive about the written policies, controls and procedures required.  Regulation 19 in particular spells out these requirements.

    • (1) A relevant person must
      • (a) establish and maintain policies, controls and procedures to mitigate and manage effectively the risks of money laundering and terrorist financing identified in any risk assessment undertaken by the relevant person under regulation 18(1);
      • (b) regularly review and update the policies, controls and procedures established under sub-paragraph (a);
      • (c) maintain a record in writing of —
        • (i) the policies, controls and procedures established under sub-paragraph (a);
        • (ii) any changes to those policies, controls and procedures made as a result of the review and update required by sub-paragraph (b); and
        • (iii) the steps taken to communicate those policies, controls and procedures, or any changes to them, within the relevant person’s business.
    • (2) The policies, controls and procedures adopted by a relevant person under paragraph (1) must be —
      • (a) proportionate with regard to the size and nature of the relevant person’s business, and
      • (b) approved by its senior management.
    • (3) The policies, controls and procedures referred to in paragraph (1) must include —
      • (a) risk management practices;
      • (b) internal controls (see regulations 21 to 24);
      • (c) customer due diligence (see regulations 27 to 38);
      • (d) reliance and record keeping (see regulations 39 to 40);
      • (e) the monitoring and management of compliance with, and the internal communication of, such policies, controls and procedures.
    • (4) The policies, controls and procedures referred to in paragraph (1) must include policies, controls and procedures —
      • (a) which provide for the identification and scrutiny of –
        • (i) any case where —
          • (aa) a transaction is complex and unusually large, or there is an unusual pattern of transactions, and
          • (bb) the transaction or transactions have no apparent economic or legal purpose, and
        • (ii) any other activity or situation which the relevant person regards as particularly likely by its nature to be related to money laundering or terrorist financing;
      • (b) which specify the taking of additional measures, where appropriate, to prevent the use for money laundering or terrorist financing of products and transactions which might favour anonymity;
      • (c) which ensure that when new technology is adopted by the relevant person, appropriate measures are taken in preparation for, and during, the adoption of such technology to assess and if necessary mitigate any money laundering or terrorist financing risks this new technology may cause;
      • (d) under which anyone in the relevant person’s organisation who knows or suspects (or has reasonable grounds for knowing or suspecting) that a person is engaged in money laundering or terrorist financing as a result of information received in the course of the business or otherwise through carrying on that business is required to comply with —
        • (i) Part 3 of the Terrorism Act 2000; or
        • (ii) Part 7 of the Proceeds of Crime Act 2002;
      • (e) which, in the case of a money service business that uses agents for the purpose of its business, ensure that appropriate measures are taken by the business to assess —
        • (i) whether an agent used by the business would satisfy the fit and proper test provided for in regulation 58; and
        • (ii) the extent of the risk that the agent may be used for money laundering or terrorist financing.
    • (5) In determining what is appropriate or proportionate with regard to the size and nature of its business, a relevant person may take into account any guidance which has been —
      • (a) issued by the FCA; or
      • (b) issued by any other supervisory authority or appropriate body and approved by the Treasury.

This regulation effectively requires each business in the regulated sector to draw up new written statements of policies, controls and procedures.

 

Changes for High Value Dealers

It was expected that the monetary lower limit for cash transactions would be reduced from €15,000.  That has indeed happened and the new limit is €10,000.  This means that when a firm or sole trader who by way of business trades in goods (including an auctioneer dealing in goods) receives, in respect of any transaction, a payment or payments in cash of at least 10,000 euros (or equivalent) in total he is acting as a ‘high value dealer’ and is subject to the Regulations.  As previously, this applies whether the transaction is executed in a single operation or in several operations which appear to be linked.

But Regulation 14 makes two other changes for High Valuer Dealers.  Now these Regulations apply where such a trader makes such a payment as well as when he receives one.

Also the regulation specifies that a payment does not cease to be a “payment in cash” for these purposes if cash is paid by or on behalf of the person making the payment to a person other than the other party to the transaction for the benefit of the other party, or into a bank account for the benefit of the other party to the transaction.

 

Changes for Estate Agents

An important change for estate agents is that by Regulation 4 an estate agent is to be treated as entering into a business relationship with a purchaser (as well as with a seller) at the point when the purchaser’s offer is accepted by the seller.

This means that at that stage the estate agent will have to complete customer due diligence on the purchaser of a property.  That was not previously required where the estate agent had been instructed by the seller.

This provision may help to address concerns about overseas buyers using tainted funds to purchase properties in the UK.

 

Politically exposed persons

A new definition of ‘politically exposed persons’ in Regulation 35 means that a UK senior politician entrusted with prominent public functions would also now be regarded as a PEP.  As a result additional anti-money laundering precautions are necessary when dealing with him or with a family member or close associate of his.

 

Banning persons with criminal convictions

The Regulations effectively will prevent a person who has been convicted of a ‘relevant offence’ from being a beneficial owner, officer or manager of a firm or a sole practitioner in specified types of business within the regulated sector.  This is achieved by Regulation 26 using a rather circuitous mechanism.

The regulation requires beneficial owners, officers and managers of a firm and sole practitioners to be approved by their supervisory body (before 26 June 2018) if the firm is an accountant, tax adviser, auditor, insolvency practitioner, legal professional, estate agent or high value dealer.  But the supervisory body is required to approve anyone who applies to it unless the applicant has been convicted of a ‘relevant offence’.  If a person is inadvertently approved who has a conviction for a ‘relevant offence’ their approval is invalid (and a valid approval becomes invalid when an approved person is newly convicted).

There is a list of ‘relevant offences’ in Schedule 3 to the Regulations.  These include “any offence which has deception or dishonesty as one of its components” as well as a long list of specified offences, including offences under the Data Protection Act 1998 and Perjury Act 1911, for example.  Unsurprisingly, tax and money laundering offences are included in the list.

One ramification of this will be that for an accountant, for example, being convicted of a ‘relevant offence’ could effectively end his career.

It is not clear, to me at least, whether this will affect persons who have old offences which would be regarded for most purposes as ‘spent’ under the Rehabilitation of Offenders Act 1974.

 

Conclusion

The Money Laundering Regulations 2017 make significant changes to the law which will affect every business in the regulated sector.

 

Contacting us

Our contact details are here.

David

(Note: This article deals with the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 so far as they apply in England and Wales. Appropriate professional advice should be sought in each individual case.)

Challenging a s22 PoCA 2002 confiscation reconsideration

Crown Court judgeThe revisiting of old confiscation orders by prosecutors under section 22 Proceeds of Crime Act 2002 is becoming more frequent.

This blog post considers the provisions of s22 and ways in which prosecution applications under s22 may be challenged by the defendant.

Section 22 is headed “Order made: reconsideration of available amount”.

WARNING – THIS IS A LENGTHY BLOG POST – APPROXIMATELY 3,000 WORDS

  1. Reconsideration of available amount
  2. The legal ‘trigger’
  3. “Makes” v “varies”
  4. Inflation
  5. The burden of proof
  6. What is ‘just’?
  7. The prosecutor’s s22 application and witness statement
  8. Restraint orders and investigation powers
  9. Time limit
  10. Challenges
  11. Default sentence
  12. Due date for payment & interest
  13. Second revisit
  14. Appeals
  15. Conclusion
  16. Contacting us

 

Reconsideration of available amount

Section 22 PoCA 2002 empowers the Crown Court to vary an existing confiscation order made under s6 of the Act.  In effect it allows the prosecution to apply to the court for a further payment to be required from the defendant under an existing confiscation order where his available amount has increased since the original order was made.

This blog article does not consider variations to confiscation orders made under earlier legislation, such as the Criminal Justice Act 1988, Drug Trafficking Act 1994 or Drug Trafficking Offences Act 1986.  Different rules apply under those Acts.

Nor are we considering the position of a person who has a new conviction and a new confiscation order is being made as a result of that.

We are considering the situation of a defendant who was made subject to a confiscation order, perhaps some years ago, at which time the court ruled that he had a figure of benefit which was higher than his available amount.  At that time the court would not have ordered him to pay the full amount of his benefit.  Instead the amount he was then ordered to pay would have been restricted to his available amount at that time.  The figures of the defendant’s benefit, available amount and the amount he was ordered to pay should all be spelled out in the original confiscation order.

Under s22 the prosecutor asks the court to consider the available amount which the defendant has now and to order him to pay a further amount now towards his total benefit.

Let’s consider Jim’s case.  Jim was subject to a confiscation order in September 2008.  That order says that Jim’s benefit was £100,000 and his available amount was £500.  Jim was ordered to pay £500 which he has paid.  Today Jim owns a house with his wife.  The house is worth £200,000 but there is a mortgage of £180,000.  So Jim’s half share is worth £10,000.  Jim also has a car worth £6,000 but no other assets, so Jim’s total available amount today is £16,000.

The prosecution can ask the court under s22 to order Jim to pay a further £16,000 (or some other figure) by making a variation to the confiscation order made in September 2008, requiring a further payment now.

 

The legal ‘trigger’

The legal ‘trigger’ for a s22 variation is in subsection 22(4):-

If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as –

(a) it believes is just, but

(b) does not exceed the amount found as the defendant’s benefit from the conduct concerned“.

The ‘trigger’ is in the first phrase – “If the amount found under the new calculation exceeds the relevant amount“.  What that means is that a s22 variation can only be made where the defendant’s available amount now exceeds the available amount shown on the original confiscation order.

In Jim’s case it obviously does (£16,000 is more than £500) and so the court can consider making an order requiring a further payment from Jim now.

 

“Makes” v “varies”

Under s22 a court may “vary” an existing confiscation order – but it does not “make” a confiscation order.  The legislation does not regard a variation to amount to the ‘making’ of an order.  This can be seen most clearly in the differing provisions regarding default sentence when a court “makes” an order – see s35 – and when a court “varies” an order – see s39.

It follows that an order which has been varied under s22 is an order which was ‘made’ at the time of the original confiscation hearing, not at the time of the variation.

 

Inflation

In these cases we can be looking back at figures determined by the court some years ago.  Because of this s22 recognises the effect of inflation by subsection 22(7) which says:-

In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

This is done by using the RPIJ index published by the Office for National Statistics.  [UPDATE: Since the article was written courts have moved on to using CPIH rather than RPIJ for ‘inflation’ uplifts.]

In Jim’s case the confiscation order was made in September 2008 when RPIJ stood at 209.8.  The latest figure (May 2016) is 240.1.

So uplifting Jim’s benefit of £100,000 it becomes equivalent to £114,442 and his original available amount of £500 becomes equivalent to £572 today.

So, strictly speaking, the trigger condition is whether £16,000 exceeds £572 – which of course it does.

The prosecutor will most likely ask the court to vary the original confiscation order so that Jim’s amount to pay is £16,500 – that is the £500 which he has already paid plus a further £16,000 payable now.

The prosecutor will point out that this amount (which when adjusted for changes in the value of money is equivalent to £16,572) is less than Jim’s total benefit (which when adjusted for changes in the value of money is £114,442).

 

The burden of proof

An application under s22 is made by the prosecutor (or an enforcement receiver appointed under s50).  It would appear that the burden of proof is on the applicant to provide information enabling the court to make a “new calculation” of the defendant’s available amount.

This contrasts with the position when the confiscation order was originally made (at which time the burden was on the defendant to show that his available amount was less than his benefit, by virtue of s7).

 

What is ‘just’?

Under s22(4) the court is to vary the amount to be paid to an amount which the court “believes is just.”  What does that mean?

What is ‘just’ does not only mean what is ‘just’ for the defendant.  The concept has regard to the legitimate interests of both sides.

I suggest that part of the process of deciding what is ‘just’ involves looking back at the figure of benefit previously decided by the court and considering whether that figure, in the light of subsequent legal developments, is either faulty because it was based on a misunderstanding of the law (as may have arisen, for example, in a case of mortgage fraud), or is an amount which it would now be considered disproportionate to order the defendant to pay in full (as may be the case, for example, where stolen property has been returned to its owner).

That will involve some detailed reconsideration of the basis on which the original confiscation order was made, which may involve re-examination of the basis of prosecution’s assertions regarding benefit which were set out in the original s16 statement insofar as the court accepted those assertions when making the confiscation order.

Where, in the light of the relevant law as it is understood today, the defendant would not now be ordered to pay an amount based on the whole of the benefit shown in the original confiscation order then, I suggest, it would not be ‘just’ to order a defendant to pay that amount now under s22.

So it is necessary, in my view, to consider the impact of case law such as R v Waya [2012] UKSC 51 (proportionality and confiscation, mortgage fraud), R v Ahmad [2014] UKSC 36  (recovery from co-defendants), R v Harvey [2015] UKSC 73 (VAT and confiscation) and Boyle Transport (Northern Ireland) Ltd v R [2016] EWCA Crim 19 (piercing the corporate veil) on the understanding of confiscation law, when considering an application under s22.

This does not mean that the defendant is appealing against the benefit figure in the original confiscation order.  He is asking the court to consider what it would be ‘just’ for him to be ordered to pay now under s22.

[UPDATE: The case of R v Cole [2018] EWCA Crim 888 (24 April 2018) in the Court of Appeal concerned a s22 application in a mortgage fraud case. The original confiscation order had been made before the Supreme Court decision in Waya and the benefit included the amount of the mortgage advance.  The Court of Appeal restricted the further amount ordered to be paid under s22 in line with what the original benefit figure would have been had a ‘Waya-compliant’ approach been followed when the confiscation order was first made.  In other words the Court of Appeal did take into account the decision in Waya when making the s22 variation.]

More broadly the court appears to have a discretion under s22 to consider what amount, in all the circumstances, it believes it would be ‘just’ for the defendant to be ordered to pay.

The Court of Appeal has held in the case of Padda v R [2013] EWCA Crim 2330, “In that context, it is entirely appropriate for a court to consider such matters as the amount outstanding, the additional amount which might now be available for a further payment, the length of time since the original confiscation order was made, the impact on the Defendant of any further payment contemplated and indeed any other consideration which might properly be thought to affect the justice of the case.

When the court is considering a variation to a confiscation order under s22 then – once the trigger condition has been satisfied – the court may order the defendant to pay a further amount of any size, large or small, so long as the total which the defendant is required to pay under the confiscation order (adjusted for changes in the value of money) does not exceed the total of his benefit (adjusted for changes in the value of money).

Strictly speaking, the only relevance of the defendant’s current available amount is in relation to determining whether the trigger condition is satisfied.  In practice however the prosecutor is likely to suggest that it would be just for the defendant to be ordered to pay an additional amount which is the lesser of (a) his current available amount, and (b) the maximum which the defendant could be ordered to pay in relation to his total benefit.

 

The prosecutor’s s22 application and witness statement

Section 22 does not make express provision for a prosecutor’s statement in support of an application for a variation of a confiscation order.  There are no express provisions akin to those found in s16.

Equally there are no express provisions akin to sections 17, 18 and 18A requiring statements or information from the defendant or third parties.

Nevertheless the prosecutor (or enforcement receiver) will need to make a written application to the court and the likelihood is that he will append to that a witness statement which will be in some respects similar to a s16 statement.  Rule 33.16 Criminal Procedure Rules 2015 applies to the service of the application and any supporting witness statement.  It is likely that the defendant will want to respond to the application by way of a statement of his own before the court hearing.

 

Restraint orders and investigation powers

The prosecutor is entitled to apply for a restraint order, under s40(6), when a s22 application is to be made or has been made.

Where the court makes a restraint order it may also require the subject of the restraint order to supply information under s41(7) for the purpose of ensuring that the restraint order is effective.

However it appears that the investigation powers under Part 8 of PoCA 2002 are not available to a prosecutor applying for a s22 variation, because a s22 application does not appear to involve a ‘confiscation investigation’ as defined by s341(1).

There could be some debate as to whether a s22 investigation is an investigation into “the extent or whereabouts of realisable property available for satisfying a confiscation order made” in respect of the defendant, referred to in s341(1)(c).  My own view is that “satisfying a confiscation order made” refers to full payment of the amount ordered to be paid under the original confiscation order which has been made, rather than referring to satisfying a variation of that confiscation order which is (perhaps) to be made.  If that is the case, and if the original confiscation order has been paid in full, then the s22 investigation would, in my view at least, not fall within s341(1) with the result that the Part 8 investigation powers would not be available to a financial investigator acting for the prosecutor.

[UPDATE: The Criminal Finances Act 2017 includes – at section 33 – an amendment to s341(1)(c) intended to make the investigation powers of Part 8 available to a prosecutor applying for a s22 variation.  This came into force on 31 January 2018.]

 

Time limit

There is no statutory time limit.  This means that a s22 application may be made many years after the original confiscation order was made.

 

Challenges

A s22 application may be subject to a variety of challenges by the defendant.

The defendant may assert that the trigger condition has not been satisfied.  Take the example of Bert who was subject to a confiscation order made in February 2012.  In that order his benefit was held to be £90,000 and his available amount was £40,000.  Bert was ordered to pay £40,000 which he has paid.  The prosecutor now finds that Bert has £25,000 in a bank account in his sole name.  Bert has no other assets, so his available amount now is £25,000.

The RPIJ in February 2012 was 225.8.  The latest figure (May 2016) is 240.1.

So uplifting Bert’s benefit of £90,000 it becomes equivalent to £95,699 and his original available amount of £40,000 becomes equivalent to £42,533 today.

So, strictly speaking the trigger condition is whether £25,000 exceeds £42,533 – which of course it does not.

It follows that the trigger condition is not satisfied and the court should not order Bert to pay a further amount now under s22.

A second area of challenge concerns the defendant’s available amount.  Consider Charles who, according to Land Registry records, is the sole legal owner of Rose Cottage.  The prosecutor values Rose Cottage at £250,000.  There is an outstanding mortgage of £150,000.  The prosecutor therefore asserts that Charles has an available amount of £100,000.

Charles may challenge this on the basis that he is not the sole beneficial owner of Rose Cottage and that the current value of Rose Cottage is less than £250,000.  That challenge may have a bearing on whether the trigger condition is satisfied and on the value of Charles’ current available amount – with obvious implications for any amount which Charles may be ordered to pay now as a result of the s22 application.

A third area of challenge concerns what might loosely be described as ‘change of law’.  In 2005 Peter was convicted of mortgage fraud in that he had purchased a house with a mortgage of £100,000 which he had obtained by giving false information on his mortgage application.  Peter was subject to confiscation with a benefit of £100,000 (the amount of the mortgage advance) and an available amount of £20,000.  He was ordered to pay £20,000 which he has paid.  Peter now has £50,000 in a bank account in his sole name but no other assets (so his available amount is £50,000).  He is subject to a s22 application.

Peter may challenge the application on the basis that it would not be ‘just’ to order him to pay £50,000 under s22 as, on a proper and just interpretation of the legal position, he did not ‘obtain’ the mortgage advance and, in any event, the mortgage advance has since been fully repaid to the lender.

The court would then have to consider what further sum, if any, it would be ‘just’ to order Peter to pay under the confiscation order.  That may involve consideration of the price for which Peter ultimately sold the mortgaged property.

A fourth possible area of challenge concerns prosecution delay and Article 6(1) of the European Convention on Human Rights.  Consider the case of Derek who was subject to a confiscation order in 2006.  The court then found he had a benefit of £175,000 and an available amount of £25,000.  He was ordered to pay £25,000 which he has paid.  In 2011 the prosecution discovered that Derek was the sole owner of a property worth £200,000 which he had inherited from his father who died in 2009.  No action was taken by the prosecution at the time.  The file was reviewed in 2016 and an application was then made under s22.

Derek may challenge the application on the basis that it infringes his Article 6(1) rights in that the prosecutor has not brought the s22 application to court “within a reasonable time”.

Fifthly, a s22 application may be challenged on the basis that, taking everything into consideration, it would be simply unjust to order the defendant to make any further payment now – or that it would be unjust to require him to pay the full amount requested by the prosecution.  It might be argued, for example, that it would be just for the defendant to be ordered an amount based on his bank balance but not any part of the value of the equity in his home or the value of assets he uses in his legitimate business.  However such an argument would have to overcome the clear legislative policy in favour of maximising the recovery of the proceeds of crime, even from legitimately acquired assets.

There may be other bases on which a s22 application may be challenged.

 

Default sentence

The provisions of s22 permit the court to vary the amount to be paid under the confiscation order, but do not expressly authorise the court to vary the original default sentence (which will have been based on the original amount payable).

Section 35 authorises the court to set a default sentence when it “makes a confiscation order”, not when it varies one.  However s39 authorises the court to vary the default sentences in the circumstances detailed in that section.

One of the trigger conditions in s39 is that a confiscation order has been varied under s22 and the effect of the variation is to vary the maximum period of a default sentence applicable in relation to the order under s139(4) Powers of Criminal Courts (Sentencing) Act 2000.

Unfortunately when s35 was amended by s10 Serious Crime Act 2015 corresponding amendments to s39 were not made.  The effect appears to be that the court can vary the default term in accordance with the table of default terms in certain circumstances, but only in accordance with the default terms set out in s139(4) Powers of Criminal Courts (Sentencing) Act 2000.  These are the default terms which applied to confiscation orders made before 1 June 2015.

In other words, when considering a default term in the context of a s22 variation it is as if the changes to default sentences made by the Serious Crime Act 2015 had never happened.

 

Due date for payment & interest

Strictly speaking, s22 does not authorise the court to vary the due date for payment.  Under s11 this is closely tied to the date on which the confiscation order is “made” (not the date on which it is varied under s22).  Under s12 the defendant must pay interest on any amount which is not paid when it is required to be paid.

However it would appear to be a nonsense to charge interest, backdated to the date on which the confiscation order was originally made, on an additional amount.  Such an interest charge might be considered to infringe the defendant’s rights under Article 1 of the First Protocol of the European Convention on Human Rights.

 

Second revisit

After a confiscation order has been varied under s22 is it possible to revisit it again at a later date?  The short answer is ‘Yes’.

However on a subsequent revisit the ‘trigger’ condition will be interpreted as comparing the defendant’s current available amount with his available amount as determined on the most recent occasion on which an application was made under s22.

 

Appeals

It seems clear that a defendant can appeal against a s22 variation where he considers the variation to have been wrong in principle or manifestly excessive (see Padda referred to above).

On the other hand, it does not appear that a prosecutor is able to appeal against the amount by which the court decides to vary a confiscation order on a s22 application, or a decision not to make any variation – but he is able to make a fresh application under s22 at a later date.

[UPDATE: In the case of R v Mundy [2018] EWCA Crim 105 the Court of Appeal did grant the prosecution leave to appeal a Crown Court decision not to vary a confiscation order under s22.  The basis for that leave to appeal appears to have been s31(1) PoCA 2002 which refers to an appeal where the Crown Court “makes” a confiscation order.  Since the s22 application was a request to “vary” rather than to “make” a confiscation order, it is open to debate whether the prosecution’s appeal was validly made.  In any event the Court of Appeal dismissed the prosecution’s appeal.]

 

Conclusion

There are a number of matters which will need to be carefully considered by prosecution and defence in connection with a prosecutor’s application under s22 for reconsideration of a defendant’s available amount.

 

Contacting us

Our contact details are here.

David

(Note: This article applies to confiscation proceedings under the provisions of Part 2 of the Proceeds of Crime Act 2002 in England and Wales.  Appropriate professional advice should be sought in each individual case.)

Criminal Finances Bill proposed

bigbenA new Criminal Finances Bill was proposed in the Queen’s Speech at the opening of the new parliamentary year on 18 May 2016.  The new Bill is intended to assist in tackling corruption, money laundering and tax evasion.

The Bill itself has not yet been published, but the Home Office have said that the Bill will allow the government to recoup more criminal assets by reforming the law on proceeds of crime, including provisions to strengthen enforcement powers and protect the public. It will also implement a more effective regime to support reporting of suspicious financial activity, make it easier to seize illicit funds and improve coordination between the public and private sectors to tackle criminal financial behaviour.

[UPDATE: The Criminal Finances Bill has now been published and an article on it appears HERE]

The bill will:

  • introduce a criminal offence for corporations who fail to stop their staff facilitating tax evasion;
  • improve the operation of the suspicious activity reports regime to encourage better use of public and private sector resources against the highest threats, to target entities that carry out money laundering instead of individual transactions, and to provide the National Crime Agency with new powers; and
  • improve the ability of law enforcement agencies and courts to recover criminal assets more effectively, particularly in cases such as those linked to grand corruption.

 

New offence

The new offence for corporations who fail to stop their staff facilitating tax evasion may have similarities to the offence committed by a commercial organisation which fails to prevent bribery.  That was a new offence introduced by s7 Bribery Act 2010.

The essence of the Bribery Act offence is that it occurs when a person associated with a relevant commercial organisation bribes another person with the intention of getting or keeping business, or an advantage in the conduct of business, for the organisation.

So it could be that the new offence will be committed by a corporation where a person working for the corporation facilitates the evasion of tax by the corporation itself or by another person.

My expectation would be that in this context (as in the case of the Bribery Act offence) the offender could be an incorporated company or a partnership and that a person working for the corporation could be widely defined and not limited to employees of the corporation (so as to include partners and self-employed ‘staff’ and agents instructed by the corporation).

So, for example, a firm of accountants, lawyers or tax advisers would commit the offence if it failed to prevent a person working for it facilitating tax evasion by a client of the firm.

Under existing legislation a person who is knowingly concerned in tax evasion commits an offence, but an incorporated body would not be subject to such prosecution unless the ‘controlling mind’ of the company were ‘knowingly concerned’ in the evasion and acting dishonestly.  The new offence will therefore place an incorporated body at risk of prosecution in a significantly wider range of circumstances.

Again it may be the case (as with the Bribery Act offence) that it would be a defence for the firm to show that it had in place adequate procedures designed to prevent persons working for it from undertaking such conduct.

The maximum penalty for the Bribery Act offence is an unlimited fine and a similar penalty may be prescribed for the proposed new offence.

 

Suspicious Activity Reports

A new focus for the Suspicious Activity Reports (SAR) regime would be welcome.  Over 300,000 such reports are received by the National Crime Agency (NCA) each year.  The vast majority of these reports are from the High Street banks.  Some of these reports must be based on very limited information about the bank’s customer and his financial affairs.

A proportion of these reports will incorporate consent requests, meaning that the NCA need to urgently address the report as they have a statutory time limit requiring a response within 7 working days.  Yet these urgent cases may not be the most important matters to which the attention of the NCA should be directed.

We shall have to see what detailed proposals are in the Bill to shift the focus of SARs to encourage better use of public and private sector resources against the highest threats and to target entities that carry out money laundering instead of individual transactions.

 

Recovering criminal assets

The authorities recover criminal assets by confiscation under Part 2, Proceeds of Crime Act 2002, and by civil recovery under Part 5 of the Act.  Broadly speaking, confiscation applies where a defendant has been convicted of an offence from which he has obtained a benefit and obliges him to pay a sum of money to the court (so the focus of confiscation is on the defendant); whereas civil recovery does not necessarily involve any criminal conviction but requires specified property to be forfeit to the state where that property is, or represents, proceeds of criminal conduct (so the focus of civil recovery is on the asset).

Confiscation law was subject to significant amendment relatively recently by the Serious Crime Act 2015.  It may be that the Criminal Finances Bill will concentrate on amendments to civil recovery law.

 

Conclusion

No doubt the Criminal Finances Bill is a topic to which we shall be repeatedly returning in this blog as matters develop over the coming months.

[UPDATE: The Criminal Finances Bill has now been published and an article on it appears HERE]

 

Contacting us

Our contact details are here.

David

(Note: This article applies to the provisions of the Proceeds of Crime Act 2002 applicable in England and Wales. Appropriate professional advice should be sought in each individual case.)

Confiscation – a huge figure of benefit

 

My name is David Winch, Director of Accounting Evidence Ltd.

We are forensic accountants specialising in crime and proceeds of crime, typically under legal aid

funding arrangements, in Crown Court cases in England and Wales.

You are a solicitor with a section 16 Proceeds of Crime Act 2002 statement landed on your desk.

There’s a huge figure of benefit for your client, an available amount that doesn’t make any sense

and hundreds of pages of appendices.

What do you do?

Well, give us a call on 01229  716651 and speak to me

or email me via the Quick Query button at the foot of the homepage.

Accounting Evidence.

It’s what we do.

 

Contacting us

Our contact details are here.

David

Video produced by On Record Media Ltd info@onrecord.media 07872 550905

PoCA section 22 – unfit for purpose?

SlipperyThe Proceeds of Crime Act 2002 was a reform and strengthening of UK law designed to strip criminals of the proceeds of crime.  Section 22 allows the Crown to require the court to re-examine the ‘available amount’ of a convicted defendant with a view to increasing the amount he must pay under an existing confiscation order.

On the face of it this enables a convicted defendant to be pursued for money for the rest of his life until he has ‘repaid’ his total ‘benefit’ (uplifted for inflation).

But is s22 so badly drafted that it creates too many problems and uncertainties? Is s22 unfit for purpose?

WARNING – THIS IS A LENGTHY BLOG POST – IN EXCESS OF 3,000 WORDS

  1. Genesis of s22
  2. Context of s22
  3. Case law
  4. Operation of s22
  5. Problems
  6. Suggested solutions

 

Genesis of s22

Prior to the Proceeds of Crime Act 2002 there was a provision, originally in s16 Criminal Justice (International Cooperation) Act 1990 and repeated in s16 Drug Trafficking Act 1994, which provided that where a person had been ordered to pay by a confiscation order an amount less than the full value of his proceeds of drug trafficking and his available amount was greater than the amount which he had been ordered to pay (whether it was greater than was thought when the order was made or had subsequently increased) then the court could, on an application by the prosecutor or a receiver, (i) substitute a new amount to be paid (not exceeding his total proceeds from drug trafficking) and (ii) if as a result the maximum default sentence moved into a higher band, increase the default sentence.

This was to be done in a two stage process involving both the High Court and the Crown Court.

There was at the time no equivalent provision in relation to proceeds of non drug-related crime.

Part of the rationale of the new proceeds of crime legislation which became PoCA 2002 was to transfer all confiscation proceedings to the Crown Court and to provide a single confiscation process applicable to all types of crime from which a benefit had been obtained by the offender.

A draft bill was published for consultation in February 2001.  That draft bill contained, as clause 21, a clause very similar to s22 but without subsections (6), (8) & (9).  The draft bill proposed major changes to UK proceeds of crime law including the creation of the Assets Recovery Agency, the streamlining & consolidation of confiscation law, the introduction of civil recovery of the proceeds of crime, sweeping changes to money laundering law and new investigation & taxation powers.

The draft bill ran to 325 clauses.  It would have been surprising had clause 21 attracted much attention during the consultation period.

In October 2001 the Proceeds of Crime Bill, running to 444 clauses, was introduced into the House of Commons.  It included, as clause 23, the clause from the draft bill but with the addition of subsection (6).

When the bill came to be considered in detail by a House of Commons committee as part of the normal legislative process, clause 23 was approved without any discussion whatsoever on 27 November 2001.

In due course the bill passed to the House of Lords.  When the bill was considered in detail there on 22 April 2002 the government added subsections (8) & (9) and made a consequential amendment to the wording of subsection (4) but again there was no debate on the clause.  The amendments made at that stage appear to be directed towards accommodating the possibility that the original confiscation order had already been amended before the court came to apply this clause.

Ultimately clause 23, as amended, became s22 Proceeds of Crime Act 2002.

In that way s22 became law without being subject to any detailed parliamentary scrutiny.

 

Context of s22

Section 22 is one of a series of sections dealing with reconsideration of a confiscation order.

Sections 19 to 21 apply where there is evidence which was not available to the prosecutor when the court originally considered making a confiscation order.  Accordingly the prosecutor may, within 6 years of the defendant’s conviction, require the court to reconsider the original confiscation order.  The sections apply where (i) the court never proceeded under s6 (s19), (ii) the court originally decided that the defendant had obtained no benefit (s20), or (iii) the prosecutor believes that if the court reconsidered the matter it would find a higher figure of benefit (s21).

These sections in effect require the court to re-perform the making of a confiscation order under s6, calculating the defendant’s benefit as if it were doing so at the time that the court originally considered making a confiscation order but taking into account the newly discovered evidence.  However when re-performing the making of the confiscation order it appears that the court is to take account of the defendant’s current available amount.

For that reason when an application is being made for reconsideration of benefit under sections 19 to 21 it is not necessary to make a simultaneous application for reconsideration of available amount under s22.

When sections 19 to 21 operate the prosecutor and the defendant are, in effect, subject to the provisions of sections 16 to 18 which require statements of relevant financial information to be prepared and served (see s26).

So the procedure under sections 19 to 21 is akin to a complete re-run of the confiscation proceedings.

On the other hand sections 23 to 25 (and section 25A when it comes into effect) are intended to deal with events which have occurred after the confiscation order was made and, in particular, to address a diminution in the defendant’s available amount.

Section 23 permits the court to reduce the figure of the defendant’s available amount to reflect an inadequacy in his available amount which has become apparent (for example where assets have been sold but have realised less than the amount anticipated).  Sections 24 & 25 (and s25A) permit the court to discharge a confiscation order in specified circumstances where it would not be appropriate to pursue a modest remaining amount outstanding.

 

Case law

One might have hoped that, prior to the drafting of s22, there would have been case law on the previous provisions – s16 Criminal Justice (International Cooperation) Act 1990 and s16 Drug Trafficking Act 1994 – which had a somewhat similar purpose.  But there appears to have been only one case of note prior to 2002, R v Tivnan [1998] EWCA Crim 1370.

In January 1992 Mr Tivnan was sentenced to 5 years’ imprisonment for a drug trafficking offence.  A confiscation order was made (the date of the order is not given in the Court of Appeal judgment) by which his benefit was said to be £479,376 and he was ordered to pay £72,481 (presumably his available amount at the time) with two years’ imprisonment in default.  In 1996 the Crown made an application under s16 CJ(IC)A 1994 which resulted in an order that Mr Tivnan pay £479,376 (the full amount of his benefit) within 12 months, with four years’ imprisonment in default.  Mr Tivnan’s appeal against the later order was dismissed.

The judgment does not indicate what transpired between the original and revised orders, so we do not know whether Mr Tivnan had actually paid anything under the original order or whether he served any part of the default sentence under it.  Nor does the judgment give full details of the assets which the court had taken into account in concluding that Mr Tivnan’s available amount had increased in 1996 to a figure in excess of £72,481.

It does appear that the Court of Appeal did take into account assets which had been first acquired by Mr Tivnan after the original confiscation order was made.

It was not until 2012, in the Supreme Court judgment Re Peacock [2012] UKSC 5, that it was finally determined that s16 Drug Trafficking Act 1994 did catch after-acquired property (assets acquired legitimately by the convicted defendant in later life).

The case of Saggar Re Drug Trafficking Act 1994 [2005] EWCA Civ 174 dealt in particular with the passage of time between Mr Saggar’s original arrest in November 1993 (and conviction in September 1995) and the Crown’s application in October 2003 for a revision of his confiscation order.  It was argued that the Crown’s application was in breach of article 6(1) of the European Convention on Human Rights.  The matter was remitted to the Crown Court for further consideration on the facts.

In a recent case under s22 PoCA 2002, Padda v R [2013] EWCA Crim 2330, the defendant had been the subject of a confiscation order in September 2006 which assessed his benefit at £156,226 and his available amount at £9,520.  He was ordered to pay the £9,520 with six months in default.  He paid the £9,520 in full.  In February 2013 as a result of an application by the Crown under s22 he was ordered to pay £74,652 with 12 months in default.

It appears that the £74,652 represented the defendant’s available amount in February 2013 (which of course would exclude monies used to satisfy the original confiscation order) and that the effect was that the defendant was required to pay both the £9,520 originally paid and the further sum of £74,652.  The order was upheld on appeal.

 

Operation of s22

Section 22 requires the Crown Court, on an application by the prosecutor or by an enforcement receiver appointed under s50, to perform a new calculation of the defendant’s current available amount.  If the new calculation produces a figure in excess of the ‘relevant amount’ the court may vary the amount to be paid under the confiscation order.

The ‘relevant amount’ is the amount previously determined to be the defendant’s available amount, adjusted for changes in the value of money, s22(7) & (8).

The variation to be made by the court is made “by substituting for the amount required to be paid such amount as it believes is just but does not exceed the amount found as the defendant’s benefit”, s22(4).

For this purpose the “amount found as the defendant’s benefit” is the amount previously determined to be the his benefit, but adjusted for changes in the value of money, s22(7) & (9)Section 22 does not expressly incorporate any reconsideration of the defendant’s benefit beyond an inflation uplift.

Potentially confusingly, by subsection (5)(b), in deciding what is just the court must have regard to any order which falls within s13(3) and has been made against the defendant in respect of the offence concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of s9 (calculation of available amount).  Subsection 13(3) refers, amongst other things, to “any order involving payment by the defendant”.

But it seems that subsection (5)(b) is not intended to direct attention to the original confiscation order since similar wording appears, for example, in s19 (where no confiscation order has been made).

So s22 does not require the making of the original confiscation order to be effectively re-performed (in the way that sections 19 to 21 do).  It does not refer back to the machinery of s6.  Instead it permits the court in appropriate circumstances to vary the original confiscation order by amending the amount to be paid under it.

Where sections 19 to 21 deal with reconsideration following the discovery of new evidence relevant to the state of affairs when the original confiscation order was made, and sections 23 to 25 deal with reconsideration in consequence of events occurring after the original confiscation order was made, section 22 (unwisely perhaps) attempts to deal with both types of reconsideration.

 

Problems

I suggest the drafting of s22 leaves a host of unresolved problems.  The section seems to be unclear as to whether it is attempting simply to authorise further action against a person who has been subject to a confiscation order limited to his available amount so that he may be required to pay a specified additional amount, or whether it means to have the entire amount payable specified afresh by the court.

The section appears not to be designed to deal with the defendant who has already paid an amount under the original order.  The section is silent as to that possibility.  Does the “substitution” of a new amount to be paid under s22 expunge the requirement to pay any amount under the original order?  Should an amount which has previously been paid be returned to the defendant?  Presumably not!

The best way of dealing with this may be to regard s22 as permitting the court to vary the original confiscation by requiring an additional payment.  The result may be that the total sum shown as to be paid by the confiscation order exceeds the defendant’s available amount either at the time the confiscation order was made or at the time it was varied (because the amount to be paid could be as much as the aggregate of those two amounts).  However it would seem that s7, which would normally prevent such an occurrence, has no application in s22 proceedings.

The practicalities are rather different where (i) a defendant has retained his original available amount and made no payment, and alternatively where (ii) he has paid an original order in full and subsequently acquired new assets.  But s22 attempts to deal with these two contrasting situations in the same way.  In the second case the ‘trigger’ in subsection (4) – that the defendant’s current available amount exceeds his previous available amount – will arguably be inappropriate and misconceived.  See my earlier blog article ‘Confiscation – after-acquired property‘ for an example of this.

Because, unlike sections 19 to 21, section 22 does not give fresh effect to the principal order making power of s6, it implicitly suggests that the only variation which can be made to the confiscation order is to “substitute” the new amount which must be paid.  The court arguably has no authority under s22 to vary other matters fixed by the original order, for example, the due date for payment (which under the original order may have passed many years earlier).  The significance of the due date for payment is that under s12(1) the defendant “must pay interest”.

In practice courts appear simply to have assumed the authority to set a new date for payment – see, for example, the case of Padda referred to above.

With regard to the default sentence, s39 authorises the court to vary the default sentences in the circumstances detailed in that section.

One of the trigger conditions in s39 is that a confiscation order has been varied under s22 and the effect of the variation is to vary the maximum period applicable in relation to the order under s139(4) Powers of Criminal Courts (Sentencing) Act 2000.

Unfortunately when s35 (which deals with the default sentence when a court “makes” a confiscation order) was amended by s10 Serious Crime Act 2015 corresponding amendments to s39 (which deals with the default sentence when a court “varies” a confiscation order) were not made.  The effect appears to be that the court can vary the default term in accordance with the table of default terms in certain circumstances, but only in accordance with the default terms set out in s139(4) Powers of Criminal Courts (Sentencing) Act 2000.  These are the default terms which applied to confiscation orders made before 1 June 2015.

However a problem may arise, I suggest, where a defendant has not paid – and has already served a default sentence.  Can he be required to serve a second default sentence for what may be, at least in part, the same debt?

Because s22 effectively requires the defendant’s benefit to be adjusted to take account of any change in the value of money it is conceivable that a court could order a defendant to pay an amount greater than the figure of benefit shown in his confiscation order.  That would appear anomalous.

Ordinarily in confiscation proceedings the burden is on the defendant to satisfy the court as to his available amount but clearly the provisions of s7 (recoverable amount) are incompatible with s22.  Under s22 that burden of calculating the defendant’s available amount appears to fall on the prosecution.  There appears to be no provision in s22 to deal with a situation in which the prosecution is unable to put a figure on the defendant’s current available amount so that no “new calculation” can be made.

Where a list of assets comprising the defendant’s available amount has been appended to the original confiscation order there is no express power in s22 to amend that list.

There are no time limits in s22, in contrast to the six year time limits in sections 19 to 21.  But it is now accepted that article 6(1) of the European Convention on Human Rights, requiring a hearing within a reasonable time, applies to confiscation proceedings including applications for reconsideration under sections 19 to 22.  Arguably therefore the existing legislation in s22 is incompatible with the Convention.

 

Suggested solutions

No change to s22 is proposed in the Serious Crime Bill currently completing its passage through parliament.

However I would suggest that the best way to deal with these issues would be for parliament to amend PoCA 2002 by repealing the existing s22 and introducing in its place two new sections.

My suggested new s22A would deal with the situation where evidence is discovered which indicates that the defendant may have had, at the time the confiscation order was made, an available amount greater than the figure specified in the original confiscation order.

In these circumstances the prosecutor or a receiver could make application to the court under s22A, within six years of the date of conviction, for a re-performance of the making of the confiscation order, giving effect to sections 6 to 13 with appropriate modifications.  The court would, if satisfied, make a new confiscation order entirely replacing the original confiscation order.  Section 22A would permit the new order to reproduce any requirement to pay specified sums on specified dates which had been contained in the original order (even where those dates preceded the making of the new order) along with any requirement to pay one or more additional sums immediately or on future dates.

My suggested new s22B would deal with the situation where evidence indicates that the defendant may currently have an available amount which may justify a requirement that he pay a further sum of not less than (say) £5,000 in relation to an existing confiscation order.

In these circumstances the prosecutor or a receiver could make application to the court under s22B for an addition to the existing confiscation order requiring the payment, by way of an additional recoverable amount, of one or more further sums on one or more specified dates (and permitting an additional list of assets, reflecting the defendant’s current available amount, to be appended to the order).  The aggregate recoverable amount would not be permitted to exceed the defendant’s benefit, but subject to that the court could order payment of such additional amount as it believed to be just.  An application under s22B would need to be made (i) within two years of sufficient evidence in support of the application coming to the applicant’s knowledge, and (ii) within twenty years of the defendant’s conviction.

Amendments to existing confiscation orders under s22B would apply sections 9, 10A (to be inserted by the Serious Crime Act 2015) and 13 with appropriate modifications.  The court would decide any question arising on the balance of probabilities (the civil standard) in the same way that it does under s6.

Under both my suggested new sections the court would be permitted to (i) increase the benefit figure, but only in respect of changes in the value of money since the court had previously determined the defendant’s benefit, and (ii) set the defendant’s aggregate recoverable amount equal to his benefit where the court was not satisfied that the defendant’s available amount was insufficient to justify that.

Amendments would in consequence be required to some other sections of PoCA 2002.

Section 26(1) would need to be amended to include reference to s22A (effectively applying sections 16 to 18 to applications under s22A).

Section 11 (time to pay) would require amendment to allow time to pay to be related to the date of any reconsideration under the new sections.  In my view it would also be appropriate to allow time to pay to be related to the dates of reconsideration by the Crown Court under existing sections 19 to 21 and on an appeal to the Court of Appeal or Supreme Court.

Legislation already before parliament will amend s11 to expressly provide for payments by instalments.

With regard to default sentences the legislation could be amended to permit separate default sentences to be related to separate instalments, providing always that the aggregate default sentences did not exceed the maximum permitted default sentence for the aggregate amount payable.  The legislation should also provide that the time required to be served in aggregate should be reduced by the proportion which the aggregate amount paid bears to the aggregate amount ordered to be paid.

These suggested amendments to PoCA 2002 would I believe provide a workable basis on which to deal with the issues which are left unresolved by the existing s22.

 

Contacting us

Our contact details are here.

David

(Note: This article applies to confiscation proceedings under the provisions of Part 2 of the Proceeds of Crime Act 2002 in England and Wales.   Appropriate professional advice should be sought in each individual case.)

Restraint orders under PoCA 2002

Restraint orders can be obtained by the authorities acting under the Proceeds of Crime Act 2002 – but in what circumstances and what are the effects?  This blog article attempts to answer some of the most common questions about restraint orders.

 

What is a restraint order?

Essentially a restraint order under the Proceeds of Crime Act 2002 is an order made by a Crown Court judge, normally at the request of the police or other investigating or prosecuting authority, which effectively ‘freezes’ the assets (including bank accounts) of an individual or a company.  A single restraint order may apply to several connected individuals and / or companies.  A restraint order is typically designed to ‘freeze’ all the assets of the individual(s) and company(ies) to whom it is directed, including assets legitimately acquired and even including assets outside the UK.

The key legislation in relation to England & Wales is sections 40 – 47 PoCA 2002.

 

When can a restraint order be made?

A restraint order can be made at any time after a criminal investigation has commenced into suspected criminal conduct from which an individual or company is suspected to have benefited.  It is not necessary for the investigation to have progressed as far as the arrest of anybody, nor is it necessary that anybody has been charged with an offence.

But the applicant for the restraint order must show that he has reasonable grounds to suspect that a benefit has been obtained from criminal conduct, s40.  Ordinarily a restraint order should be made only if there is genuinely a risk that assets will be dissipated (for example being spent, hidden, given away or removed from the country) in the absence of such an order, see s69 and R v B [2008] EWCA Crim 1374.

 

How is a restraint order made?

A restraint order is normally made by a Crown Court judge on an application by the police / Crown Prosecution Office or other authority.  Before making the restraint order the judge will be provided with a witness statement (often supported by other documentary evidence) from the applicant for the order.  However the subject(s) of the order will NOT have an opportunity to challenge the making of the order at this stage and will NOT be informed of the application until after the restraint order has been made.

As a result the subject(s) of the restraint order will normally be unaware of the application until he / she / they are served with a copy of the restraint order – by which time it will already be in force.

 

Who can be the subject of a restraint order?

An individual or company may be the subject of a restraint order if he / she / it is an alleged offender who is suspected to have benefited from an offence or is a person who (though not an alleged offender) has received assets from an alleged offender (by way of what is known as a ‘tainted gift’).

It follows that a restraint order may be drawn up to name as its subjects not only the alleged offender but also, for example, his spouse.

 

What is the effect of the restraint order?

The restraint order will prevent the assets of the subject(s) being dissipated by preventing the sale or transfer of those assets and by ‘freezing’ the subject’s bank accounts.  Technically the restraint order prohibits each subject from “dealing with” his assets. The restraint order will typically list known bank accounts and assets of the subject and will contain clauses designed to ensure that the order relates to those assets and accounts and to any other assets and accounts which are not shown on the list.

There is normally a provision in the restraint order allowing the subject to draw and spend a sum of money, typically £250 per week, to meet day to day living expenses.

The applicant who obtained the restraint order will normally serve copies of it on the subject(s) of the order and send copies of it to banks, etc at which the subject(s) are believed to have accounts and to, for example, the Land Registry in relation to land and buildings owned by the subject(s).

 

Can a restraint order be challenged?

Yes.  The subject of a restraint order can apply to have the order discharged (cancelled) or amended.  The application will be heard by a Crown Court judge who will hear submissions both from the applicant for the original order and the subject(s) of that order.

Typically a subject of a restraint order will apply to have the terms of the order relaxed, for example to allow a higher level of living expenses or to allow monies to be used to pay specific expenses (such as mortgage payments) or to remove one or more of the subjects from the scope of the order.

In some circumstances it may be appropriate for a subject to apply to the court to have the order limited so as to cover only specified assets.

The decision of the Crown Court judge can be the subject of an appeal to the Court of Appeal and beyond.

Where the restraint order impacts upon a legitimate business it may be necessary to make careful arrangements in the order to allow the business to continue in operation – to pay employees’ wages and business expenditures, for example.  One option in such a situation is for the court to appoint a management receiver (such as an independent accountant or insolvency practitioner) to operate the business whilst protecting the business assets from dissipation. However this may prove expensive and the management receiver’s fees are normally met out of the assets which he is managing, so in effect the subject pays his fees.

 

What is the purpose of a restraint order?

Ultimately the purpose of a restraint order is to preserve the assets of the subject(s) so that they remain available to meet any confiscation order which the Crown Court may make after the alleged offender has been charged, tried and convicted of an offence, s69.

 

 

What else might a restraint order require?

Commonly a restraint order includes clauses requiring the subject(s) of the order to disclose further information to the authorities concerning their assets, s41(7).  This information may then be used to assist in ensuring the effectiveness of the restraint in preventing the dissipation of assets and to assist the prosecution in confiscation proceedings following the conviction of the alleged offender(s).  However the information cannot be used by the prosecution in the course of the alleged offender’s criminal trial.

A restraint order may also contain a requirement to return to the UK assets held overseas (such as monies in an overseas bank account).

 

What about paying the alleged offender’s legal fees?

Restrained assets cannot be used to meet any legal fees of the alleged offender in connection with his defence against any criminal charges arising from the investigation which formed the basis of the application for the restraint order, see s41(4) PoCA 2002.  This means that the alleged offender will have to rely on legal aid (or gifts from friends) to meet his defence costs.

 

What about payments made to lawyers before the restraint order was made?

Where a solicitor holds funds in his client account which he has received from a person who has since become subject to a restraint order then the balance standing to the credit of the client is an asset of the subject which (like his other assets) is ‘frozen’ by the restraint order.

It is permissible for the solicitor to bill work done by him up to the date of the restraint order and pay himself for that work by transfer from the client account.  But similar transfers cannot be made in respect of any subsequent legal work, see Irwin Mitchell v RCPO & Allad [2008] EWCA Crim 1741 at paragraph [40].

 

What is the effect of breaching the restraint order?

A person who breaches a restraint order may be held to be in contempt of court (this is a ‘civil’ contempt, see R v O’Brien [2014] UKSC 23, which can nevertheless result in imprisonment) or may be subject to prosecution for attempting to pervert the course of justice, see Kenny v R [2013] EWCA Crim 1 at paragraph [41].

 

When does the restraint come to an end?

A restraint order will continue in force until it is lifted by the Crown Court.  This could be on an application by the subject of the order, or where proceedings are not brought within a reasonable time as a consequence of a criminal investigation which has not resulted in anyone being charged, or on the acquittal of the alleged offender, or on the satisfaction of any confiscation order made by the Crown Court following the alleged offender’s conviction.

Even after a confiscation order has been satisfied or discharged a restraint order may continue in force & restrained assets may then be used to satisfy any outstanding legal aid contribution related to the criminal proceedings.

 

Conclusion

Anyone finding himself subject to a restraint order under PoCA 2002 should seek appropriate legal advice without delay.

David

 

[This article has been updated to reflect legal changes made with effect from 1 June 2015.]

(Note: This article applies to restraint 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 subject’s restraint 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.)

Confiscation – default sentence

When making a confiscation order in the Crown Court the judge will specify a ‘default sentence’ – a consecutive prison term which the defendant may be required to serve if he fails to satisfy the confiscation order.  A default sentence could be described as an additional penalty for failing to pay the confiscation order on time.

The intention is that the threat of triggering the default sentence will encourage the defendant to pay up.  Serving the default sentence is not an alternative to paying the confiscation figure – the amount originally ordered to be paid remains payable even after the default sentence has been served.

 

How long is the default sentence?

The MAXIMUM length of the default sentence which the Crown Court judge may specify when making the confiscation order is set out in s139 Powers of Criminal Courts (Sentencing) Act 2000.  The maximum is related to the amount which the defendant is ordered to pay, which is sometimes referred to as the ‘recoverable amount’.  This will be the lower of his ‘benefit’ and his ‘available amount’ as found by the Crown Court.

These maximum sentences are set out in bands in s139(4), depending upon the amount ordered to be paid:

An amount not exceeding £200 7 days
An amount exceeding £200 but not exceeding £500 14 days
An amount exceeding £500 but not exceeding £1,000 28 days
An amount exceeding £1,000 but not exceeding £2,500 45 days
An amount exceeding £2,500 but not exceeding £5,000 3 months
An amount exceeding £5,000 but not exceeding £10,000 6 months
An amount exceeding £10,000 but not exceeding £20,000 12 months
An amount exceeding £20,000 but not exceeding £50,000 18 months
An amount exceeding £50,000 but not exceeding £100,000 2 years
An amount exceeding £100,000 but not exceeding £250,000 3 years
An amount exceeding £250,000 but not exceeding £1 million 5 years
An amount exceeding £1 million 10 years

 

[UPDATE: See a revised table of default sentences from 1 June 2015 HERE.]

However a judge may specify any length of default sentence, even a very short one – provided he does not exceed the relevant maximum length from this table.

In practice judges have been encouraged by decisions of the Court of Appeal in cases such as Pigott v R [2009] EWCA Crim 2292 to use appropriate discretion in fixing default sentences and not to automatically apply the maximum sentences set out in s139Typically the judge will fix a default sentence somewhere between the maximum for the appropriate band in the table and the maximum for the band below, bearing in mind that the purpose of the default term is to secure payment of the confiscation order.  But judges are discouraged from applying a purely mathematical approach to fixing the default term.

 

An example

So, for example, if a confiscation order was being made in the sum of £500,000 one would expect the judge to set a default sentence no greater than the maximum permitted for that amount (which is 5 years) and no less than the maximum for the band below (which is 3 years).

But one would not expect the judge to feel bound to fix the default sentence at a term based on a mathematical calculation, which would be 3 years 8 months (i.e. 3 years plus one third of an extra 2 years because the amount of £500,000 is one third of the way between £250,000 and £1,000,000).

 

Co-operation

Although the judge should consider all the circumstances of the case in fixing the default sentence, he is likely to be particularly influenced by the co-operation, or lack of it, which the defendant has displayed in his conduct in relation to the confiscation proceedings.

 

Very large amounts

A particular difficulty arises where the confiscation order is for an amount in excess of £1 million because the table gives no guidance as to when it may become appropriate for a default sentence to be made in the maximum period of 10 years.

The Court of Appeal considered this point in the case of R v Castillo [2011] EWCA Crim 3173 in which a default term had been set at 10 years in relation to an order for £3 million against a defendant who was held to have deliberately hidden his ill-gotten gains outside the UK.

Notwithstanding the size of the order and the lack of co-operation from the defendant, the Court of Appeal reduced the default sentence in Mr Castillo’s case to nine years.

 

Early release

Prisoners who are further detained at the end of their sentence in default of a confiscation order are eligible for early release at the halfway stage of the default sentence under s258 Criminal Justice Act 2003 and are eligible to be considered for early release on temporary licence (see chapter 5.3 of Prison Service Order 6300).

[UPDATE: See revised position re orders of £10 million or more from 1 June 2015 HERE.]

But in addition a default term is reduced pro-rata to any payments received in part satisfaction of the confiscation order.  This is a purely mathematical exercise. (The underlying statute law involves a complex path from s35(2) PoCA 2002 to ss139 & 140 Powers of Criminal Courts (Sentencing) Act 2000 to s79(2) Magistrates’ Courts Act 1980. There are worked examples of the calculation in Chapter 16 of PSO 6650 ‘Sentence Calculation’.)  So, for example, suppose Timothy had been ordered to pay £600,000 with a four year prison term in default.  Let’s say Timothy has paid £500,000 and there remains £100,000 outstanding.  Timothy’s default sentence has now become 8 months – or, more accurately, 243 days (i.e. one-sixth of his original default sentence of 4 years because one-sixth of the original amount remains outstanding).

[UPDATE: See a more detailed article about reductions for part payments HERE.]

Contrast this with Gerald who has a confiscation order made against him for £100,000 with a default sentence set at 2 years and has made no payment off it.  Gerald also has £100,000 outstanding but, unlike Timothy, his default sentence is 2 years.  That apparent unfairness is a result of the non-linear basis of the table of default sentences in s139.

 

Appeals

In the past default sentences have proved to be a fertile ground for appeals by defendants – particularly where the Crown Court judge has been too quick to apply the maximum term specified in s139.  In all likelihood we shall continue to see a steady stream of such cases making their way to the Court of Appeal.

However it appears that the prosecution has no right to appeal against a default sentence which it considers is too short, see R v Mills [2018] EWCA Crim 944 at para [37].

 

David

(Note: This article applies to default sentences relating 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 default sentence 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.)

Confiscation – counts left to lie on the file

In confiscation proceedings counts left to lie on the file may have unwelcome implications which had not been foreseen by the defendant and his legal team at an earlier stage.  What are these implications?

 

Counts left to lie on the file

in any subsequent confiscation proceedings there is, I venture to suggest, a very important difference between these two methods of disposal

When a defendant has been charged with more than one offence he may wish to offer a guilty plea to some of the counts he faces if the remaining counts against him will not be pursued.  Those counts which are not pursued might be dealt with in one of two ways.  The prosecution could state in court that they propose to offer no evidence on those counts.  The judge will then formally record ‘not guilty’ verdicts in relation to them.

Alternatively the prosecution could invite the judge to agree that the counts are to be ‘left to lie on the file’ without any verdict being entered.  That means that the prosecution may only revive and proceed on those counts in wholly exceptional circumstances.

So it would appear that, in practical terms, the outcome is the same – those allegations have been disposed of and the defendant will no longer face prosecution for them.  But in any subsequent confiscation proceedings there is, I venture to suggest, a very important difference between these two methods of disposal.

Case law

Case law indicates that where a defendant has been formally acquitted of a count it is not open to the prosecution to suggest, in confiscation proceedings based on his conviction on one or more other counts on the same indictment, that the defendant was in fact guilty of that offence.  To do so would imply that the court has ‘got it wrong’ so far as the acquittal is concerned.

it is not open to the state to undermine the effect of the acquittal

In R (on the application of Adams) v Secretary of State for Justice [2011] UKSC 18 the Supreme Court held at paragraph [111] “the principle that is applied is that it is not open to the state to undermine the effect of the acquittal”.  Similarly the Supreme Court held in Gale v Serious Organised Crime Agency [2011] UKSC 49 at paragraph [115] “in all proceedings following an acquittal the court should be astute to ensure that nothing that it says or decides is calculated to cast the least doubt upon the correctness of the acquittal”.

In this respect the UK Supreme Court judgments are consistent with the decision of the European Court of Human Rights in the case of Geerings v The Netherlands [2007] ECHR 191.  In the Geerings case a confiscation order made against Mr Geerings following his conviction of certain offences was assessed, in part, on the basis that he was in fact also guilty of other offences of which he had been acquitted in the same proceedings.  The European Court held that this had violated his Article 6(2) right to the presumption of innocence.

in contrast . . . the defendant may find that the burden will rest upon him

In contrast where counts have been left to ‘lie on the file’ I suggest that it is open to the prosecutor, in confiscation proceedings, to suggest that the defendant is in fact guilty of those offences.  Indeed in a ‘criminal lifestyle‘ confiscation the defendant may find that the burden will rest upon him to satisfy the court, on the balance of probabilities, that he is not guilty of those offences.

Simon’s case

An example from a recent case in which I was involved may underline the point.  The defendant, let’s call him Simon, ran a plant hire business.  His premises were raided by the police who examined 91 items of plant which he hired out.  They found 39 of these items to have been stolen property.  Simon was charged with 39 counts of ‘handling’ under s22 Theft Act 1968 on the basis that he knew or believed these items to be stolen.  Simon denied that he knew or believed the items to be stolen but, shortly before the matter came for trial, he pleaded guilty to 9 of the 39 counts and all parties agreed to the remaining 30 counts being left to ‘lie on the file’.

Simon was subsequently subject to confiscation on the basis that he had a ‘criminal lifestyle‘ having been convicted of more than 3 offences and having obtained from them a benefit of at least £5,000 (which was not disputed).  In the confiscation proceedings the prosecution asserted that the income generated from the hiring out of all 39 items was benefit of Simon’s criminal conduct.  The defence contended that the benefit should be assessed only by reference to the income from the hire of the 9 items in relation to which Simon had been convicted.

The judge entirely disbelieved and rejected Simon’s evidence

The judge heard oral evidence from Simon regarding his state of knowledge concerning the 30 items and also heard oral evidence from other witnesses.  The judge entirely disbelieved and rejected Simon’s evidence and based the confiscation order on the income generated from the hire of all 39 stolen items.

In approaching the matter in the way he did, the judge acted consistently with the recent Court of Appeal judgment in Bagnall v R [2012] EWCA Crim 677.  It was open to the judge to apply the statutory assumptions which, in his judgment, Simon had failed to rebut in relation to income generated from the hire of all 39 stolen items.  This did not, in law, amount to a finding that Simon was guilty of offences of which he had not been convicted (although it had the same effect in terms of the confiscation order).

In a jury trial the burden would have been upon the prosecution to prove, to the criminal standard, that Simon knew or believed that each of the items of plant was stolen

No doubt the outcome of the confiscation would have been significantly different if Simon had been formally acquitted of the 30 counts to which he did not plead guilty.  Alternatively, had Simon insisted, insofar as he was able, that he face trial before a jury on the 30 counts (and, in my view at least, a defendant has a right to a fair trial on all the counts with which he has been charged) it is possible that he would have been acquitted on some or all of those counts.  In a jury trial the burden would have been upon the prosecution to prove, to the criminal standard, that Simon knew or believed that each of the items of plant was stolen.  As things turned out, acquittals on any of the counts would have led to a better outcome for Simon in the confiscation proceedings.

So, for a defendant and his legal team, agreeing to counts being left to ‘lie on the file’ may be a less attractive option than it appears.

David

Calamitous consequence of a failure to notify HMRC

Should one feel sorry for Gareth Edward Steed?

Mr Steed engaged in what the Crown Court judge described as “moonlighting” – legitimate trading which he failed to declare for tax.  Indeed it seems he was not on HMRC’s ‘radar’ at all.  He received no tax returns and he failed to notify HMRC of his chargeability to tax.

It seems that he was a ‘grafter’ prepared to do anything legitimate to make money – whether that involved buying and selling second hand cars, undertaking building work, or whatever.  Perhaps he also was engaged in some rather less legitimate ‘business’ too.

somehow he was ‘rumbled’

But somehow he was ‘rumbled’.  Ultimately he was charged with three counts of tax evasion.  As often happens in criminal cases there were clearly some sort of discussions between the two sides before the matter came to court.  As a result the original three charges were dropped and one new charge was introduced – to which Mr Steed pleaded guilty.

The charge was one of common-law ‘cheat’ in that between 1 April 2003 and 31 December 2004 Mr Steed failed “to submit declarations of tax due including the proceeds derived from the sale of vehicles, furniture and tools together with that from building work”.

Mr Steed accepted that, as a result, a tax liability of at least £3,558 had arisen for 2002/03 which had escaped self-assessment.

But that was not the end of Mr Steed’s troubles because, following his conviction for ‘cheat’ HMRC pursued confiscation proceedings.

They argued that he had a ‘criminal lifestyle’ for confiscation purposes on the basis that he had committed an offence over at least 6 months from which he had gained a benefit of at least £5,000 (s75 PoCA 2002).  In that connection HMRC pointed out that had a tax return been submitted for 2002/03 it would have triggered not only payment of £3,558 for 2002/03 but also a payment on account for the following year.  In consequence the amount involved exceeded £5,000.

Applying the ‘criminal lifestyle’ assumptions the judge found that Mr Steed was unable to produce evidence to rebut the statutory assumptions

The Crown Court judge agreed.  Applying the ‘criminal lifestyle’ assumptions the judge found that Mr Steed was unable to produce evidence to rebut the statutory assumptions that amounts expended by him and assets held by him had been obtained in consequence of unspecified general criminal conduct on his part.  He made a confiscation order against Mr Steed for £707,200 (with a four year prison sentence in default of payment by the due date).

That sum was Mr Steed’s ‘available amount’, which is normally calculated to be the value of the defendant’s gross assets less any liabilities secured on them (such as mortgages).

The Crown Court judge also formed the view that Mr Steed had probably been engaged in other criminal activity too.  He said, “It may be that the defendant . . . would not be convicted on the criminal standard of all the matters to which I have referred. It is a question of viewing an overall picture and the conclusion I come to is that the overall picture supports the contention that it is more likely than not that he was involved in criminal conduct over and above the Count to which he pleaded guilty”.  He referred to “money-laundering, drug-dealing, the possession of goods bearing false trademarks with a view to sale, the evasion of duty and benefit fraud”.

Mr Steed appealed.  The Court of Appeal in a decision published on 1 February 2011 upheld the confiscation order and dismissed the appeal – Steed v R [2011] EWCA Crim 75.

In particular the Court of Appeal recognised that the proceeds derived from legitimate trading (such as sales of used cars) were not themselves benefits of criminal conduct.  Rather the benefit consists of the tax evaded.

The Court of Appeal accepted that “where a trader evades tax and proves, on the balance of probabilities, that his assets and expenditure derived from legitimate trading on which he paid no tax then the trader will have rebutted the statutory assumptions”.  In that event the only benefit remaining for confiscation would be an amount equal to the tax evaded.

the appellant was unable to establish on the balance of probability the extent to which the sources of his assets and expenditure were legitimate

But crucially it also noted that the Crown Court judge had found that “the appellant was unable to establish on the balance of probability the extent to which the sources of his assets and expenditure were legitimate and the extent to which they were illegitimate. Since he was unable to prove what proportion was legitimate the consequence was that in relation to any given asset or item of expenditure he could not prove that the property was not held by him as a result of his general criminal conduct”.

It followed that he was unable to rebut the statutory assumptions in relation to monies he had expended and assets which he held.

So the financial consequences of Mr Steed’s failure to notify chargeability to tax have been rather more serious than he may have anticipated – almost 200 times more serious!

David