R v Harvey
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson |
| Judgment Date | 03 July 2013 |
| Neutral Citation | [2013] EWCA Crim 1104 |
| Docket Number | Case No: 201202865 C4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 July 2013 |
[2013] EWCA Crim 1104
Lord Justice Jackson
Mr Justice Wyn Williams
and
The Recorder of Preston, His Honour Judge Russell QC
Case No: 201202865 C4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT TRURO
HIS HONOUR JUDGE ELWEN
T20100035
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr William Boyce QC and Ms Joanna Martin (instructed by Smith LeaningSolicitors) for the Appellant
Mr Martin Evans and Miss Kate Brunner (instructed by The Crown Prosecution Service) for the Respondent
This judgment is in ten parts, namely:
Part 1. Introduction,
Part 2. The facts,
Part 3. The confiscation proceedings,
Part 4. The appeal to the Court of Appeal,
Part 5. The law,
Part 6. The first ground of appeal: VAT,
Part 7. The second ground of appeal: restoration,
Part 8. The third ground of appeal: method of assessment,
Part 9. The fourth ground of appeal: term in default,
Part 10. Conclusion.
This is an appeal against a confiscation order in a case to which the "criminal lifestyle" provisions apply. The appellant ran a plant hire and contracting business, which made extensive use of stolen plant. The principal issues are the basis upon which the appellant's benefit should be assessed, how VAT should be dealt with and whether credit should be given for the residual value of the plant ultimately restored to the true owners.
In this judgment we shall refer to the Proceeds of Crime Act 2002 as " POCA".
Section 6 of POCA sets out how the Crown Court must proceed in confiscation proceedings:
"6. Making of order
…
(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.
(6) But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct.
(7) The court must decide any question arising under subsection ( 4) or (5) on a balance of probabilities."
Section 7 of POCA provides:
"7. Recoverable amount
(1) The recoverable amount for the purposes of section 6 is an amount equal to the defendant's benefit from the conduct concerned.
(2) But if the defendant shows that the available amount is less than that benefit the recoverable amount is—
(a) the available amount, or
(b) a nominal amount, if the available amount is nil.
(3) But if section 6 (6) applies the recoverable amount is such amount as —
(a) the court believes is just, but
(b) does not exceed the amount found under subsection ( 1) or (2) (as the case may be)."
Section 10 of POCA provides:
"10. Assumptions to be made in case of criminal lifestyle
(1) If the court decides under section 6 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of —
(a) deciding whether he has benefited from his general criminal conduct, and
(b) deciding his benefit from the conduct.
(2) The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him—
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(3) The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him —
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(4) The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.
(5) The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.
(6) But the court must not make a required assumption in relation to particular property or expenditure if —
(a) the assumption is shown to be incorrect, or
(b) there would be a serious risk of injustice if the assumption were made.
(7) If the court does not make one or more of the required assumptions it must state its reasons.
(8) The relevant day is the first day of the period of six years ending with —
(a) the day when proceedings for the offence concerned were started against the defendant, or
(b) if there are two or more offences and proceedings for them were started on different days, the earliest of those days."
Section 16 of POCA provides that the first step in confiscation proceedings is for the prosecutor to serve a statement setting out the information relied upon.
Section 75 of POCA defines what is meant in the Act by "criminal lifestyle". There is no dispute in this case that the appellant falls within that definition.
Section 76 of POCA provides:
"76. Conduct and benefit
(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."
Sections 79 and 80 of POCA contained detailed provisions as to the valuation of property obtained by the defendant. Section 80 (2) (a) requires the value of property to be adjusted to take account of later changes in the value of money.
Article 1 of the First Protocol to the European Convention on Human Rights is generally referred to as "A1P1". A1P1 provides:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
In some of the authorities which we shall review the offender is appellant and in others he is respondent. For simplicity we shall generally refer to the offender as "the defendant" or "D". Where there is more than one defendant, we shall refer to each by the initial letter of his surname. We shall use the abbreviation "V" for victim.
Francis Clark LLP are a firm of Chartered Accountants practising in Truro. Their former name was Winter Rule. For simplicity we shall refer to that firm at all times as "Francis Clark".
After these introductory remarks we must now turn to the facts.
In 1972 the appellant set up a company which he owned and controlled called Jack Harvey Ltd ("JHL"). The appellant and his family have always lived at Truro in Cornwall. The company was based there. The business of the company was plant hiring and contracting. Over the years the company built up a large stock of plant and machinery. These included rollers, diggers, trailers, low loaders, dumper lorries and planers. Many members of the appellant's family were involved in the business.
JHL hired out plant to customers. Sometimes JHL supplied drivers to operate the plant. JHL also undertook contracting work using its own plant and drivers. One major customer of JHL was Cornwall County Council. JHL hired out many large machines to the council.
One profitable activity which JHL undertook was road planing. This means removing the top surface of roads with a planer and converting the debris into reusable aggregate, known as "planings". JHL did much road planing for the council. JHL then sold the planings to farmers or other contractors in the area.
Francis Clark acted as...
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