R v Bajwa and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 06 May 2011 |
| Neutral Citation | [2011] EWCA Crim 1093 |
| Docket Number | Case Nos: 200904474-C3, 200904536-C3, T20057095 and T200557136 |
| Court | Court of Appeal (Criminal Division) |
| Date | 06 May 2011 |
[2011] EWCA Crim 1093
Lord Justice Aikens
Mr Justice Irwin
and
His Honour Judge Roberts QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
Case Nos: 200904474-C3, 200904536-C3,
200904673-C3, 200905942-C3 AND 201006251-C3
T20057095 and T200557136
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MANCHESTER
HIS HONOUR JUDGE ATHERTON
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Christopher Finch (instructed by Creed Lane Law Group, Solicitors, London) for Naripdeep Bajwa
Mr Graham Henson ( instructed by Murria. Solicitors, Birmingham) for Harish Sahnan
Mr Kenneth Hind (instructed by Farnsworth Morgan, Solicitors, Blackburn) for Mark Midgley
Mr Mohammed Khamisa QC and Miss Felicia Davy ( instructed by ABV, Solicitors, Hayes, Middlesex) for Baljunder Sohi
Mr James Gregory (instructed by Burton Copeland, Solicitors, Manchester) for Stephen Mallinson
Robert Dudley and Kevin Slack (instructed by CPS Proceeds of Crime Unit) for the Crown
Hearing date: 18 th February 2011
Approved Judgment
This is the judgment of the court to which all of us have contributed.
Outline of the case
The appellants Bajwa, Sahnan and Sohi appeal confiscation orders made against them. The applicant Midgley renews his application to appeal the confiscation order made against him. We grant leave. Mallinson's renewed application for an extension of time in which to seek leave to appeal the confiscation order made against him was referred to the full court by the Registrar. We grant the necessary extension of time and we grant leave to appeal in his case also.
At the heart of these appeals are two issues of interpretation of sections 75(2)(c), 76(4) and (5) of the Proceeds of Crime Act 2002 (" POCA") concerning the conditions that have to be fulfilled in order for a defendant to be deemed as having a "criminal lifestyle" within section 75(2)(c) of POCA. If a defendant is deemed to have a "criminal lifestyle" then it has consequences for how his "benefit" from his criminal conduct is to be determined under section 6(4) of POCA. However, this statement that the appeal raises two issues of construction of three provisions of POCA is deceptive. To decide the answers to those issues on the facts of this case it has been necessary to look at other statutes, at statutory instruments and many cases, as well as the facts. Our consideration of the issues has resulted in having to engage in a long and complicated paper trail in order to answer what ought to be simple questions. The questions raised are not easy to answer and the convoluted process we have felt constrained to go through to reach the answers is bad enough on appeal. But these complications are a nightmare for judges at first instance who regularly have to apply the Proceeds of Crime Act in confiscation proceedings which result from offences of smuggling tobacco products into this country by sea in containers. It is not in the interests of justice or of the public that the law should be so complicated; it is high time that it was simplified.
The key sections of POCA for the purpose of this appeal are sections 75(1)—(4) and section 76. In order to put them in their context it is sensible to set out also section 6(4)-(7), which stipulate what a Court must do if proceeding to consider whether to make a Confiscation Order against a defendant under the provisions of POCA.
Section 6(4), (5) and (7) and section 75(1)-(4) and section 76 of POCA provide as follows:
"6 Making of orderE+W
……
(4) The court must proceed as follows—
(a) it must decide whether the defendant has a criminal lifestyle;
(b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;
(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.
(5) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must—
(a) decide the recoverable amount, and
(b) make an order (a confiscation order) requiring him to pay that amount.
……
(7) The court must decide any question arising under subsection ( 4) or (5) on a balance of probabilities.
……
75 Criminal lifestyle E+W
This section has no associated Explanatory Notes
(1) A defendant has a criminal lifestyle if (and only if) the following condition is satisfied.
(2) The condition is that the offence (or any of the offences) concerned satisfies any of these tests—
(a) it is specified in Schedule 2;
(b) it constitutes conduct forming part of a course of criminal activity;
(c) it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.
(3) Conduct forms part of a course of criminal activity if the defendant has benefited from the conduct and—
(a) in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or
(b) in the period of six years ending with the day when those proceedings were started (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited.
(4) But an offence does not satisfy the test in subsection (2)(b) or (c) unless the defendant obtains relevant benefit of not less than £5000.
76 Conduct and benefit
E+W
This section has no associated Explanatory Notes
(1) Criminal conduct is conduct which—
(a) constitutes an offence in England and Wales, or
(b) would constitute such an offence if it occurred in England and Wales.
(2) General criminal conduct of the defendant is all his criminal conduct, and it is immaterial—
(a) whether conduct occurred before or after the passing of this Act;
(b) whether property constituting a benefit from conduct was obtained before or after the passing of this Act.
(3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs—
(a) conduct which constitutes the offence or offences concerned;
(b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned;
(c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.
(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.
(5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.
(6) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other.
(7) If a person benefits from conduct his benefit is the value of the property obtained."
The single count on the Indictment concerning all the appellants alleged that "…between 1 March and 22 September 2004 they conspired….fraudulently to evade the duty chargeable on goods namely a quantity of cigarettes". It is of note that the appellants were charged with being party to a conspiracy fraudulently to avoid duty, not with the offence of having done so. The object of the conspiracy was to smuggle into the UK a container load of 7 million Chinese counterfeit Benson & Hedges Gold cigarettes, with the intention of evading the duty chargeable on them which would have totalled £1,069,740.00. The container had been loaded on board a container carrier at Chiwan, in the Peoples' Republic of China, for carriage to Felixstowe. Before the vessel arrived, HMRC arrested all the appellants on 13 and 14 September 2004, although they were then released on bail and not charged until February 2005. The vessel arrived at Felixstowe on 21 September 2004. HMRC intercepted the container upon its discharge on 22 September 2004. Its contents were seized at 18.40 hours that day in a secure examination shed in Felixstowe docks when the seals on the container were broken by HMRC officials and the counterfeit cigarettes were found inside. As we shall explain, the precise period during which the conspiracy lasted, the precise times of involvement of the appellants in it and the precise circumstances by which HMRC came to intercept the container may have great importance to the outcome of these appeals.
On 22 February 2006, in the Crown Court at Manchester, Mark Midgley pleaded guilty on re-arraignment to conspiracy to contravene section 170(2)(b) of the Customs and Excise Management Act 1979 ("CEMA"). That section provides that:
"(2) Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in the fraudulent evasion or attempt at evasion—
…..
(b) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment
…..
shall be guilty of an offence under this section and may be arrested".
On 7 March 2006 Stephen Mallinson pleaded guilty on re-arraignment to the same count. On 13 April 2006 Naripdeep Bajwa and Baljinder Sohi were convicted on the same count after a trial lasting 6 weeks before HHJ Atherton and a jury in the same Crown Court. On 19 April 2006 Harish Sahnan was convicted on the same count, before the same court. On 29 June 2006 the appellants were sentenced by Judge Atherton to various terms of imprisonment...
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