Pradip Daya (Aka Pradip Chavda) v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 08 May 2024 |
| Neutral Citation | [2024] EWHC 1091 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-001078 |
[2024] EWHC 1091 (Admin)
Mr Justice Freedman
Case No: AC-2023-LON-001078
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Christopher Sykes (instructed by Rosenblatt Law) for the Applicant
Michael Newbold (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 17 April 2024
Judgment sent out in draft: 2 May 2024
Approved Judgment
This judgment was handed down remotely at 2.00pm on 8 May 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
I Introduction
This is an application on behalf of the Applicant Pradip Daya for a Certificate of Inadequacy. He claims that his circumstances are such that he no longer has assets with which to pay the balance outstanding in respect of a confiscation order comprising a sum of in excess of £2,000,000 together with interest of a sum in excess of the principal sum.
The application is supported by evidence, namely witness statements of the Applicant dated 11 July 2023 and 18 March 2024. It is opposed by the Crown Prosecution Service who rely on a witness statement of Portia Ragnauth dated 16 January 2024.
The Applicant was tendered for cross-examination, and he gave evidence. Portia Ragnauth was not tendered for cross-examination, and there was no application for cross-examination. The evidence of Portia Ragnauth is not controversial, but served only to produce documents. Among the documents which have been produced are documents of DC Duckett who has not produced a statement for this application, and so any statements of his are admissible, but hearsay and to be given reduced weight insofar as there may be any issues in respect of them.
II Background
The Applicant was convicted following a trial by jury before the Crown Court at Southwark on 29 June 2007 in respect of offences of fraudulent trading, obtaining money transfers by deception, and money laundering. He was sentenced to 3 years 10 months imprisonment. The offences related to fraudulent property investment schemes.
Confiscation proceedings followed pursuant to the Criminal Justice Act 1998 (“the CJA”). There was a note of agreement between the parties dated 9 September 2008, and signed by counsel. A benefit figure was agreed of £2,787,525, less realisable assets of a sum of £619,763.85. A large part of the benefit figure comprised the value of the offences on the indictment and cheque and cash transfers and deposits. No admission was made by the Applicant in respect of any other asset.
The Crown Court was satisfied that the Applicant had other, unidentified assets valued at £2,109,761.15 enabling him to pay the balance of the order.
The Applicant did not give evidence before the Crown Court. The prosecution submitted that there were undisclosed assets based on the business transactions through the course of the trial and the volumes of evidence produced by the prosecution. From the agreed benefit figure the judge deducted living expenses of £58,000 and made a confiscation order in the sum of £2,729,525.
HHJ McMullen QC addressed the issue in his judgment as follows:
“In the absence of evidence from the defendant, I start with the approach of Mr Duckett, who invites me on the material which he has put before me to take the view that there are undisclosed assets. I pay attention to what I have learnt about the business transactions of the defendant through the course of the trial, and through the volumes of evidence which have been produced to me by Mr Duckett. I have no difficulty in making the assumption and making the finding, which I do, from all I know in this case, that the defendant has hidden assets, which together with the known assets make a figure of £2,797,525, but I acknowledge, as Mr Duckett does, that the defendant has had to make use of some of that in respect of his living expenses, for which the figure is roughly £58,000. So, the benefit figure exceeds the realisable assets figure, known and unknown, and are the figure for those latter assets is £2,729,525.”
Reference to DC Duckett's approach must have been to that part of his statement dealing with ‘hidden assets’, in which he identified that the Applicant had withdrawn £247,733.10 in cash from identified accounts during the relevant period. Further, that £278,802.32 in investor funds had been transferred to the Applicant's wife's account in 2001 – 2002, and that much of that was then transferred to offshore accounts in Switzerland and Guernsey. £491,169.10 had therefore been identified as being transferred out of known accounts and remained unaccounted for. “ Numerous others” had invested in the Applicant's projects and did not recover their investments.
When addressing the question of time for payment, HHJ McMullen QC further noted that:
“I have also paid attention to the background to this case, which as I have indicated includes a very substantial overseas activity by the defendant, substantial business contacts, substantial social and family contacts, and all of the circumstances of the case.”
On 9 September 2008, the Crown Court at Southwark (HHJ McMullen QC) made a confiscation order against the Applicant in the following terms:
(i) his benefit from criminal conduct was found to be £2,787,525;
(ii) his realisable amount was found to be £2,729,525;
(iii) the order was to be paid within a period of 4 months;
(iv) in default, a period of 6 years imprisonment was to be served. The six-year default sentence was activated on 16 February 2009. The applicant was released from his default sentence on 16 December 2011.
The Court made a compensation order requiring payment of £410,035.18, to be paid from monies recovered by way of the confiscation order.
The confiscation order related to identified assets in the form of:
(i) a property at 1 Ridding Lane, Greenford, valued at £154,700;
(ii) a property at 31 – 32 Church Street, Wellingborough, valued at £465,000;
(iii) the balance of an Abbey account, £13.85.
Following the making of the confiscation order, a third party successfully asserted his ownership of the property at 31 – 32 Church Street. The Court of Appeal allowed an appeal by the Applicant on 15 July 2011 by reference to this information relating to the third party's ownership and reduced the amount to be paid pursuant to the confiscation order to £2,264,525.00. In addition to this, the Applicant sought permission of the Court of Appeal to challenge the unidentified assets finding on the grounds that he did not have proper and competent representation by his solicitors at the original confiscation proceedings. Leave was refused. It therefore follows that the unidentified assets finding has not been challenged on appeal, save for the unsuccessful application for permission to appeal.
Of the sum ordered to be paid, the Applicant has now paid £132,596.82. The balance of £2,131,928.18 together with accrued interest remains outstanding. Due to the passage of so many years, the amount of interest exceeds the original balance. Interest has accrued at a rate of 8% per annum and is not compounded. The sum for interest referred to at paragraph 3 of the submissions of the Applicant is a sum of £2,473,210.10. Interest is accruing at £467.63 per day.
III Evidence of the Applicant
The Applicant did not give any evidence as to the finding of the unidentified assets and said that he understood that the Crown Court's finding could not be relitigated. He did at one point say that he had conceded the position under duress, but he did not give any evidence as to what the true position was, albeit that he made no admissions. It is accepted on his behalf that he is unable in these proceedings to challenge the finding of the Crown Court and that his only recourse would have been by way of appeal. As indicated, his application for permission to appeal as regards his legal representation was refused. The Applicant gave evidence of his employment history, being employed by Blue Sky between 2013–2016 and receiving a sum of £85 per week for 18 weeks of work. He was then employed between 2016–2019 as a fleet cleaner on refuse trucks, lorries and large vehicles, as a result of which his health suffered. He was paid between about £1,500–1,900 per month.
During the pandemic, he became involved with the PPE business and worked as a salesman. He earned some income acting as a purchaser of PPE for others. He received credits, which he said were loans and not windfalls. The Applicant has declared weekly income of £420 in connection with his declarations with the magistrates court arising out of the unpaid confiscation order. He says that he has no assets. He has been making weekly payments of £50. He has attended at least 45 magistrates court hearings for enforcement.
His health has declined. In this regard he has provided evidence about dermatological illness in 2018 to 2019 and in 2022 and 2023; about PTSD and depression in 2021 and 2023; and about asthma and Type 2 diabetes in 2022. Further explanation about his personal circumstances has been provided by his former wife, his younger brother and a Hindu priest. He gave evidence about the breakdown of his marriage and the fact that his children no longer have a relationship with him. He is close to family in Zambia, but he is unable to visit them. In the course of his oral evidence, he gave an emotional account as to how he believed that the legal process and the continuation of the confiscation order over so many years was crushing him.
The Applicant has stated that his recollection is limited by the passage of years and the impact of worsening issues on mental health. He indicates that he has...
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