This week’s Digest considers one judgment from the Court of Appeal (Civil Division) and one from the High Court. In the former the court considered whether pension policies should count as ‘realisable property’ for a confiscation order. In the latter, the court addressed whether the Criminal Cases Review Commission was wrong to decline to refer a murder conviction on the basis of joint enterprise in the light of R v Jogee [2016] UKSC 8.
Ahmed v Crown Prosecution Service [2018] EWCA Civ 2543
The judgment, available here, was handed down by Newey LJ on 15th November 2018.
The issue in this appeal was whether certain pension policies constituted ‘realisable property’ within the meaning of a confiscation order made pursuant to the Criminal Justice Act 1988. The appeal was dismissed. Pension policies do count as realisable property and can be seized by a confiscation order.
The appellant had been convicted of VAT fraud in 2007. Confiscation proceedings under Part VI of the Criminal Justice Act 1988 ensued and the appellant was ordered to pay around £16,000,000. In 2016, under section 80 of the 1988 Act, the CPS successfully applied for a receiver to be appointed to enforce the confiscation order against the appellant.
In June 2017 a court order was made amending the schedule to the 2016 receivership order to include certain pension policies in the appellant’s name. The appellant challenged that order. He case was that the pension policies have as yet no realisable value and that they will continue to have none for a number of years. That being so, he argued that they cannot represent ‘realisable property’ within the meaning of the 1988 Act.
The term realisable property, found in section 80 of the 1988 Act, is defined under sections 74 and 102 of that Act to include any property held by the Defendant and any property that the Defendant holds an interest in. The appellant, appearing in person, sought to rely on a number of authorities including R v Chen [2009] EWCA Crim 2669 to argue that pension policies should not count.
However, the Court pointed out that the issue in Chen concerned the policies’ worth rather than whether they were ‘realisable property’ at all. The present appeal was different. No issue arose as to either the value of the pension policies or the size of the confiscation order. Under the plain interpretation of the 1988 Act, pension policies clearly were included in the definition of realisable property. The appeal was dismissed.
R (Davies) v Criminal Cases Review Commission [2018] EWHC 3080 (Admin)
The judgment, available here, was handed down by Irwin LJ on 14th November 2018.
The Claimant sought to challenge the decision of the Criminal Cases Review Commission (CCRC) not to refer his conviction for joint enterprise murder to the Court of Appeal Criminal Division. He argued that, in light of R v Jogee [2016] UKSC 8, the judge at first instance misdirected the jury in stating that foresight, not intention, was sufficient for guilt to be established and that his conviction was therefore unsafe. The Court of Appeal agreed that a misdirection had taken place but held that the conviction was not unsafe. The application was dismissed.
The Claimant was sentenced to life imprisonment with a minimum term of 35 years custody after being convicted of joint enterprise murder in 2009. Though not present at the time of the murder he was found guilty of organising a planned robbery that resulted in the victim being battered to death in his own home, on the basis that he foresaw that as part of the robbery serious injury might be inflicted on the victim. The Claimant unsuccessfully pursued an appeal to the Court of Appeal in 2010. However, an error of fact in the reporting of that case stated that the Claimant had told the robbers “to simply threaten the deceased and not to hit him”. This was not true.
Subsequently, in 2016, the Supreme Court ruled that the law required intention, not merely foresight, on the part of a defendant before he may be property convicted. The trial judge in 2009 therefore unwittingly misdirected the jury. The Claimant applied to the CCRC to take on his case, but they declined. He applied to judicially review that decision.
The test for whether the CCRC should refer a case back to the Court of Appeal is laid down in section 13 of the Criminal Appeal Act 1995. The CCRC should not refer a case unless there is a real possibility that the conviction would not be upheld were the reference to be made. In R v Johnson [2016] EWCA Crim 1613 the Court of Appeal considered how section 13 should be applied to pre-Jogee joint enterprise cases. The Court held that a misdirection on this aspect of the law in itself will not make a conviction unsafe. The burden is on the applicant to show that a substantial injustice had been done, a high threshold, and to demonstrate that the change in the law would have made a difference to the verdict.
The Claimant submitted that a substantial injustice had been done. The plan for the robbery had been to not use violence; the victim’s resistance was unexpected. The fact that the victim produced a knife to defend himself could not be blamed on the Claimant. The Claimant accepted that the challenge to the CCRC’s decision had to be on traditional public law grounds, namely that the decision was irrational or that the CCRC had misdirected itself in law. The Claimant argued that the CCRC had indeed misdirected itself by relying on the decision in Johnson, when the actual test was laid down in section 13.
The Court rejected both of these submissions. There was no plan for the robbery to proceed without violence – rather, there was a plan to proceed and use violence only if need be. The reporting of the 2010 appeal was mistaken in stating that the Claimant advised against violence. The robbers carried weapons to the premises, the Claimant via telephone actively approved of and encouraged the beating of the victim, and the violence began early on in the evening. These all came together to make an extremely strong case for the necessary intent. There is no sensible basis on which the conviction could be regarded as unsafe, let alone a substantial injustice. There was no basis for concluding that it was irrational for the CCRC to reach the same view.
Secondly, there was nothing in the criticism of the approach to the law taken by the CCRC. Seeing as their task is to attempt to predict a real possibility of a successful appeal, they were bound to do so from the starting point of examining the legal approach which would be taken by the Court. That approach, the substantial injustice test, is laid down in Johnson. The Court declined to criticise or overrule the substantial injustice test, noting that it was explicitly approved by the Supreme Court in Jogee.
The application was dismissed.
OTHER NEWS
Supreme Court considers Article 50 case appeal
The Supreme Court has said it will consider whether to hear an appeal from the UK government over a legal challenge to the Brexit process.
The European Court of Justice will examine later this month whether the UK can revoke Article 50 before 29 March 2019 if MPs vote to do so, but the Government wants to prevent the hearing from happening.
More details can be found here.
Police accuse government of leaving them with ‘no idea’ how to protect UK after Brexit
The draft withdrawal agreement, published last week, makes no mention of Europol and says the UK would be locked out of EU tools including the Schengen Information System (SIS II), European Arrest Warrant and European Criminal Records Information System (ECRIS) when the transition period ends.
The Police Federation, which represents 120,000 rank-and-file officers, said they had “no idea what the policing landscape will look like post 29 March 2019”.
More details can be found here.
