This week’s edition considers one judgment of the Divisional Court. In Re Ojebode the Court considered an application for a certificate of inadequacy under section 83 of the Criminal Justice Act 1988.
Re Ojebode [2020] EWHC 923 (Admin)
The judgment, available here, was handed down by Mr Justice Murray on 17/4/2020.
This case concerned an application for a certificate of inadequacy under section 83 of the Criminal Justice Act 1988 (“the 1988 Act”) on the basis that the applicant’s realisable property was inadequate to pay the amount remaining due under the confiscation order made against her.
The confiscation order was made against the applicant following her convictions on 20 April 2015 in the Crown Court at Snaresbrook on the verdicts of a jury after trial on:
- four counts of obtaining money transfers by deception (Counts 1, 3, 4 and 5 on the trial indictment);
- one count of evasion of liability by deception (Count 2 on the trial indictment); and
- two counts of possession of an identity document with an improper intention (Counts 6 and 7 on the trial indictment);
for which she was sentenced to a total of 30 months’ imprisonment.
The criminal case against Ms Ojebode was concerned with benefit and identity fraud. The Crown’s case was that the defendant, Mrs Benedicta Ojebode, made fraudulent claims for benefits in both her own name and using the false name of Mrs Oluremilekun Thomas. She also had under her control Nigerian and British passports in the false name of Thomas. It was a well-orchestrated fraud which went undetected for nearly two decades. Over a period of 17 years, the defendant dishonestly obtained £187,121.13 in benefits.
The Crown brought confiscation proceedings against Ms Ojebode under the 1988 Act. On 10 January 2017 in the Crown Court at Snaresbrook, HHJ Dawson found that Ms Ojebode had a criminal lifestyle, that her benefit from her criminal activities amounted to £1,094,151.27 and the total value of her available or realisable assets was £665,425.00. Accordingly, a confiscation order was made against Ms Ojebode in the sum of £655,425.00, with a term of 7 years’ imprisonment to be served by Ms Ojebode in default of payment of that sum. Ms Ojebode was given 3 months to pay the confiscation order. Her time to pay the order therefore expired on 10 April 2017.
The certificate of inadequacy under section 83(1) of the 1988 Act was granted on the basis that Ms Ojebode’s realisable property is now inadequate to pay the amount remaining due under the confiscation order made against her.
It is clear from the Court’s summary of the legal principles applicable to this application that the burden of proof in establishing that there is an inadequacy of realisable assets is on the applicant, that the applicant cannot simply rely on a generalised assertion that she has insufficient assets to repay and that the application must be supported by clear and cogent evidence. [73]
In assessing the application, the Court stated that it looked at the totality of the evidence, including the evidence provided by the respondent, and drew appropriate inferences from it in reaching a view as to whether there is an inadequacy of assets on a balance of probabilities. Despite the almost wholly unsatisfactory state of the evidence provided by Ms Ojebode, the Court reached the view that, on a balance of probabilities, Ms Ojebode’s realisable property is inadequate for the payment of the full amount remaining on the confiscation order, having regard to all of the evidence, including the evidence provided by the Crown. [74]
It was common ground that, with the exception of Ms Ojebode’s remaining equity in her residential property at 15 Bream Close, the realisable assets shown on the Schedule have been exhausted. This, in the Court’s view, was clear and cogent evidence. The amount payable under the confiscation order was the cumulative amount of the Crown Court’s valuation of the assets at the confiscation hearing. Ms Ojebode fell well short of achieving the full amount that it was effectively predicted she would achieve when realising those assets, however, there has been no suggestion from the Crown that there was anything improper or negligent, much less fraudulent, with regard to her realisation of those assets. [75]
While the burden of proof was on the applicant, the Crown did not produce any direct evidence that Ms Ojebode had assets or income that she had not disclosed that would be sufficient, together with the remaining equity in 15 Bream Close, to pay the amount outstanding under the confiscation order. The Court was asked to draw an inference from the fact that Ms Ojebode appears to have found the resources to make monthly payments on her personal loans. Ms Ojebode did not provide a complete record of the personal loan repayments, which should have been within her power to do, whether the repayments were made by another family member or by her. The Court concluded that it was probably the case that most of the proceeds of the personal loans were used to pay personal debts, and that Ms Ojebode survives financially by borrowing from one creditor to pay another creditor. [84]
Mrs Ojebode no longer had the rental properties that she bought with the fruits of her fraudulent criminal activity, and therefore her only recognised income is her pension income. Her physical and mental health difficulties, as well as her age, made it highly unlikely that she would be able to earn sufficient income to pay the balance outstanding under her confiscation order. The penalty for failure to pay the confiscation order in full was imprisonment, which would be a severe penalty for Ms Ojebode, given her age and state of health. [85]
Having regard to all of the evidence adduced both by Ms Ojebode and by the Crown and having regard to the civil standard of proof, the Court concluded, despite serious reservations about the manifold weaknesses in the evidence presented by Ms Ojebode, that her realisable property was inadequate for the payment of the amount remaining to be recovered under the confiscation order. [88]
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