This week’s Digest considers two judgments of the Court of Appeal (Criminal Division). The first relates to various challenges to confiscation orders made under the Proceeds of Crime Act 2002. The second the scope of the offence of assisting inspectors carrying out their duties under the Transmissible Spongiform Encephalopathies Regulations 2010. This Digest also includes recent sentencing remarks.
R v. Cole [2018] EWCA Crim 888
The judgment, available here, was handed down by Simon LJ on 24.04.18.
The issue in this appeal was the appropriate assessment of the available figure in confiscation proceedings under the Proceeds of Crime Act 2002. In particular, two questions were answered. The first was whether the remainder of the equity in flats obtained through fraudulent mortgage transactions could be included in the calculation in circumstances where an order had already been made and the banks in question had allowed the mortgages to continue. The court held that they could be included. The second was whether the court was right to proceed on the basis that R v. Waya [2014] 1 AC 294 had not been decided, even though it had, in assessing the benefit figure which should have been calculated with regard to that decision. The court had been wrong to adopt that approach.
The appellant was the subject of two confiscation orders. The first (“the 2009 order”) was made after a financial investigation which revealed two flats which were purchased on the basis of false information. This information formed the basis of a number of charges to which the appellant had pleaded guilty. The 2009 order was agreed between the parties on the following basis: the benefit figure was £575,000 which included the entire value of fraudulent mortgage advances of £377,000 that had been used to buy the flats, as well as a number of high value cars; the available amount was £55,000, representing the value of a Cartier watch (£2,000) the net equity of the flats (£53,000). It seems to have been envisioned that the flats would be sold to raise the sum due; in fact, the sum was paid in two tranches by the appellant’s mother and an associate.
In 2017, there were further confiscation proceedings in respect of the appellant. There were two aspects to these proceedings. The first was a prosecution application under s. 22 of the Proceeds of Crime Act (“POCA”) to recalculate the available amount in respect of the 2009 order; the second was a confiscation application in respect of offences committed in 2014. The judge ruled on the s.22 application that there was a further £471,547 which was available in respect of the assessed benefit. This figure consisted in the available net equity in the two flats which were the subject of the 2009 order. In respect of the 2014 offences, and in light of his previous ruling on the s. 22 application, the judge made a notional confiscation order in the sum of £1 (“the 2017 order”).
The appellant appealed against the ruling on the s. 22 application and sought leave to renew his application to reopen the 2009 order and for leave to appeal against the 2017 order.
In respect of the 2009 order, the court held there was no proper basis for granting leave to challenge it. The applicant submitted that the decision of the Court in R v. Waya [2014] 1 AC 294 materially transformed the law so as to change the court’s approach to confiscation in cases of mortgage fraud such that the 2009 order required amending. However, a material change in the law will normally not justify the grant of an extension of time in the absence of the applicant showing substantial injustice (R v. Jogee and others [2016] UKSC 8, at [100]). There was no such injustice, not least of all because the order was agreed and could have been challenged earlier if it were thought to give rise to substantial injustice.
In respect of the s. 22 application, the appellant contended that, as the defrauded banks had been content to allow the mortgages to stay in place, it would be disproportionate to deprive the appellant of the properties. A second objection was that, if the 2009 order had been made after Waya rather than before, the benefit figure would not have included the mortgage advances procured by fraud and would have been reduced to a figure of £198,000, less the £55,000 already paid, leaving £143,000. The court accepted the second of these objections and allowed the appeal to that extent; once it was accepted that the benefit figure in this type of case falls to be calculated in accordance with the decision in Waya the Court should not have proceeded under s. 22 as if Waya had not been decided when considering whether it was just to make an order under s. 22.
The appropriate course for the prosecution, in relation to the 2017 order was to make an application to vary the available amount under s. 22. This was the case especially in light of the fact that the judge had not treated the rent collected from the two flats as a realisable asset and, consequently, had excluded it. This was not the case after the decision of the Court in R v. Oyebola [2013] EWCA CRIM 1052, at [38] – [39]; such rental income is not excluded by s. 10(9)(b) POCA.
M Najib & Sons Limited v. The Crown Prosecution Service [2018] EWCA Crim 909
The judgment, available here, was handed down by Leggatt LJ on 26.04.18.
The issue in this appeal was whether the appellant’s slaughterhouse was under an obligation to assist inspectors in taking samples from sheep under the Transmissible Spongiform Encephalopathies Regulations 2010 (SI 2010/801). The obligation, on a true construction of the Regulations, only extended to assisting with taking samples from bovine animals and not sheep. Accordingly, the facts admitted by the appellant did not constitute the offence of which it had been convicted.
The appellant company operated a slaughterhouse and cutting plant for sheep. It sought leave to appeal against its conviction under regulation 17(b) of the Transmissible Spongiform Encephalopathies (“TSE”) Regulations 2010 (SI 2010/801) (“the 2010 Regulations”) for failing to give an inspector the assistance required to take samples from the sheep. It had, from May 2014 onwards, refused to make samples available for testing on the basis that, in its view, it imposed an excessive financial burden on them (causing them a loss of some £24,500/year). The 2010 Regulations discharge the UK’s obligation under the EU TSE Regulation (Regulation (EC) No 999/2001) to make provisions necessary to comply with and enforce the EU TSE regulation, which itself imposes an obligation, at article 6, on each member state to “carry out an annual monitoring programme for TSEs”. Regulation 17(b) of the 2010 Regulations makes it an offence if a person, without reasonable cause, fails to give an inspector acting under the regulations assistance in carrying out their obligations thereunder. An inspector’s powers under the 2010 Regulations include the power to “take any samples”.
Leave to appeal was refused by the single judge on the basis that the company had no right to appeal, having pleaded guilty to the offence. However, the single judge had fallen into error in this regard; a guilty plea was not a bar to a conviction being quashed. In R v. Asiedu EWCA Crim 714, at [20] Lord Hughes identified two instances wherein this would be the case, one of which was analogous to the case here; namely, “where the plea of guilty was compelled as a matter of law by an adverse ruling by the trial judge which left no arguable defence to be put before the jury”.
The judge had ruled that there was an obligation under the 2010 Regulations to assist an inspector in taking samples. The appellant contended the 2010 Regulations imposed no such obligation; although it may do so in respect of taking samples from bovine animals, it certainly did not in respect of sheep. This was accepted by the Court and, accordingly, the appeal was allowed on this ground and the conviction quashed. There was no provision in the 2010 Regulations which an inspector can be said to be enforcing when requiring the occupier of a slaughterhouse to assist in the taking of samples for testing. Since the obligation to assist only arose where the inspectors were enforcing a provision under the 2010 Regulations, it followed it was not an offence for the occupier to fail to provide such assistance.
Although this was sufficient to dispose with the appeal, the Court also considered the two other grounds of appeal advanced by the appellant. The first was that the inspectors had no power to require the appellant to provide assistance in taking samples because of the terms of the inspectors’ letter of appointment. However, it was rejected that the letter limited the provisions of the 2010 Regulations which the inspectors were appointed by the opening paragraph to enforce. The second of these was that, more broadly, the monitoring programme was unlawful. In short, this was rejected because the failure to require other slaughterhouses to participate in the programme did not make it unlawful to require the appellant to take part.
R v. Pedro Rubim, Mr Justice Kerr, Blackfriars Crown Court, 28 March 2018
The full remarks are available here.
Mr Rubim was convicted of unlawfully killing his son, Alejandro. During the morning of 20 February 2016, the offender injured him so badly that he died in hospital four days later. The judge noted that determining the degree of culpability of the offender in manslaughter cases, where there is no intention to kill, is difficult. However, it was clear from the number and gravity of trauma injuries sustained by the child – three in total – that the culpability was serious enough that it fell in the middle of the spectrum.
Aggravating factors included the fact that this was not a case of a parent reaching the end of their tether with a child, nor was the offender suffering from personal difficulties in his life. In term of mitigation, the offender was of previous good character and there was no premeditation. Indeed, the offender had alerted the emergency services and did what he could to save the Alejandro. Although the offender had not told the truth at trial, he had expressed sadness and remorse. Moreover, he had to live with the fact he had lost his only son and that it was his fault. In light of this, the appropriate sentence in the eyes of the judge was 8 ½ years’ imprisonment.
R v. Darren McKie, Mr Justice Spencer, Chester Crown Court, 28 March 2018
The full remarks are available here.
Darren McKie was convicted for the murder of his wife, Leanne McKie, whom he strangled to death in the family home. The motivation for the crime was the spectre of serious and constant debt; the couple were constantly living beyond their means and this gave rise to seeds of marital disharmony and mistrust over financial matters. There were a number of applications made to companies offering short time financial relief, but these were all discovered by Mrs McKie. On 28 September 2017, she discovered that the offender had attempted to secure a loan against their family home. The offender came home and strangled her, murdering her in a way described as ‘brutal’ by the judge.
Against this background, the judge rejected the Crown’s submission that this was a murder for gain such that the minimum term should have been 30 years’ imprisonment. The starting point was, accordingly 15 years. Aggravating factors included the fact that the offender had deliberately and callously concealed his wife’s body and to cover his own tracks, denying any knowledge of her death. Further, the judge was satisfied that his wife had suffered significantly. Although this was not a murder for gain, it was an aggravating feature that the offender, a senior police officer with important public responsibilities, resorted to fraud, forgery, and computer misuse to alleviate his financial difficulties. All that was accepted in mitigation was that the murder was not premediated, and the offender was of previous good character. In light of those features, the appropriate minimum term was 19 years, less the 179 days spent on remand.
Suspended sentences handed out inappropriately
A leaked circular sent earily this month by the chair of the Sentencing Council, Lord Justice Treacy, warned that a punitive culture had developed and that suspended sentences were being imposed “as a more severe form of community order”, when it was not legally appropriate.
The full piece can be read here. A letter in response to the piece can be read here.
Judicial shortages pose threat to justice system
In an appearance before the House of Lord constitution select committee, Lord Burnett of Maldon highlighted problems arising in the justice system because of issues surrounding judicial recruitment. He further noted that there is a growing problem of death threats being made against judges on social media and a lack of protection therefrom.
The full piece can be read here.
Prison Violence in England and Wales hits record levels
Ministry of Justice figures show that violence among inmates in jails in England and Wales and against prison staff has hit record highs. There were 29,485 assault incidents in jails in England and Wales last year, an increase of 13% since 2016.
The full piece can be read here.
Police force to face charge under health and safety legislation
A police force has been charged under health and safety legislation after a church caretaker with mental health difficulties collapsed in custody after a heavy webbing belt was placed across his face. The family of Thomas Orchard have expressed relief that Devon and Cornwall police will have to account for their actions.
The full piece can be read here.
