R v Hockey (Terence John)

JurisdictionEngland & Wales
JudgeLORD JUSTICE PILL
Judgment Date12 June 2007
Neutral Citation[2007] EWCA Crim 1577
CourtCourt of Appeal (Criminal Division)
Docket NumberNo: 2007/00022/C5
Date12 June 2007

[2007] EWCA Crim 1577

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2

Before

Lord Justice Pill

Mrs Justice Dobbs

Mr Justice Lloyd Jones

No: 2007/00022/C5

Regina
and
Terence John Hockey

MR K TALBOT AND MR J WILSON appeared on behalf of the Appellant Crown

MR A DAVIDSON appeared on behalf of the Respondent

LORD JUSTICE PILL
1

On 21st March 2006 in the Bristol Magistrates' Court, Terence John Hockey pleaded guilty to six charges arising out of three mortgage applications: (1) the dishonest obtaining of a money transfer from Bradford & Bingley Building Society in the sum of £180,000 [in fact £171,000] on 26th August 2003; (2) the dishonest obtaining from NatWest Bank of a money transfer in the sum of £142,450 [in fact £127,457] on 6th September 2005, both those offences being under section 15A of the Theft Act 1968; (3) dishonestly attempting to obtain a money transfer from Northern Rock Building Society in the sum of £110,675 on 8th October 2005, charged under section 1 of the Criminal Attempts Act 1981. Charges 4, 5 and 6 were offences relating to the use of false instruments by Hockey in the course of each of the applications, contrary to sections 3 and 6 of the Forgery and Counterfeiting Act 1981.

2

Hockey was committed to the Crown Court for sentence. On 17th November 2006 he appeared before His Honour Judge Lambert. On the charges relating to the Bradford & Bingley (which pre-dated the Criminal Justice Act 2003) he was sentenced to concurrent terms of nine months' imprisonment suspended for 2 years. On the other charges (which postdated the 2003 Act) the judge imposed a suspended sentence on each charge, nine months' imprisonment suspended for 2 years, to run concurrently with the earlier sentences, and a community requirement of 240 hours' unpaid work.

3

In confiscation proceedings under section 6 of the Proceeds of Crime Act 2002 (“the 2002 Act”) heard on the same day, the prosecution sought a confiscation order against Hockey in the sum of £298,457. The judge declined to make the order, in circumstances to which we will refer.

4

The prosecutor appeals against that ruling of His Honour Judge Lambert by leave of the single judge, who also granted Hockey a representation order.

5

On 26th August 2003 Hockey completed an application form to obtain a mortgage from Bradford & Bingley for premises in Derby. In the form he stated that he was employed as a catering and events manager for a company called Bigger Fights and earned £60,000 a year. He produced what purported to be a P60 and wage slips in support of the application. He had never worked for the company and the documentation provided was false. Unaware of that, the building society transferred the sum of £171,000 to Hockey.

6

In September 2005 Hockey obtained a mortgage from NatWest for a residential property in Derbyshire. He completed an application form stating that it was for residential purposes and not to buy and let. He stated that he was contracts manager for a company called Fairy Deli and earned £40,000 a year. He again produced false documentation in support of the application, and obtained a mortgage in the sum of £127,457.

7

In October 2005 Hockey prepared a mortgage application in connection with the purchase of Plot 5, Heritage Brewery, Burton on Trent. He applied for £110,675, stating that he was a contracts manager earning £40,000 a year, in support of which representation he provided false documentation.

8

The premises in Derbyshire were intended to be let. At least one of them has been let. With respect to both of them mortgage payments have been made by Hockey and he is up to date with payments. We are told they are interest-only mortgages. He has paid on one for a period of approaching four years and on the other for a period of well over a year.

9

Once the frauds came to light, the lending institutions concerned were prepared to continue with the mortgages and have received the appropriate monthly payments.

10

The questions of the benefit obtained by Hockey as a result of these dishonest transactions, and his realisable assets, were considered at the September hearing before the magistrates. It was agreed by the parties that the benefit obtained within the meaning of the statute amounted to £298,457 and that Hockey's realisable assets were substantially in excess of that, at £471,000. The judge was accordingly invited by the prosecution, on 17th November 2006, to make a confiscation order in the sum of £298,457.

11

No suggestion was made at the hearing in the Crown Court that the realisable assets had changed significantly following the September hearing and no such representation is made to this court today, though counsel for Hockey, Mr Davidson, has mentioned the possibility that the figure may have changed. He has had an opportunity to take instructions from his client and has not pursued a submission that there has been any change relevant for present purposes.

12

On behalf of the prosecution, Mr Wilson invites the court to allow the appeal and itself to make a confiscation order in the sum already mentioned.

13

Section 31(2) of the Proceeds of Crime Act 2002 provides:

“If the Crown Court decides not to make a confiscation order the prosecutor or the Director may appeal to the Court of Appeal against the decision.”

14

Section 32(2) provides:

“On an appeal under section 31(2) the Court of Appeal may confirm the decision, or if it believes the decision was wrong it may —

(a) itself proceed under section 6 (ignoring subsections (1) to (3)), or

(b) direct the Crown Court to proceed afresh under section 6.”

Thus subsections (1) and (3) are not relevant in the present situation.

15

On behalf of Hockey, Mr Davidson submits that there was not a decision not to make such an order within the meaning of section 31(2). He submits that the judge was merely adjourning proceedings and this court has no jurisdiction under section 32. Subject to that, Mr Davidson does not submit that the provisions of section 6 of the 2002 Act are other than mandatory. His further submission is that if the court, contrary to his submission, assumes jurisdiction under section 32, it should not deal with the matter itself, but direct the Crown Court to proceed afresh under section 6.

16

In view of the comparatively narrow compass of the issue between the parties, it is not necessary to set out in full the statutory procedure. Section 6 of the 2002 Act provides:

“(1) The Crown Court must proceed under this section if the following two conditions are satisfied.

(2) The first condition is that a defendant falls within any of the following paragraphs —

(a) he is convicted of an offence or offences in proceedings before the Crown Court;

(b) he is committed to the Crown Court for sentence in respect of an offence or offences under section 3, 4 or 6 of the Sentencing Act;

(c) he is committed to the Crown Court in respect of an offence or offences under section 70 below (committal with a view to a confiscation order being considered).

(3) The second condition is that —

(a) the prosecutor or the Director asks the court to proceed under this section, or

(b) the court believes it is appropriate for it to do so.

(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...

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8 cases
  • R v Paulet and Others
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 28 July 2009
    ...court overruled decisions in the Crown Court refusing to make confiscation orders. These were R v Brack and Brack [2007] EWCA Crim 1205, R v Hockey [2008] 1 CAR (S) 50 and R v Gilleeney [2009] EWCA Crim 193. They did not extend to cases stayed on abuse of process grounds. The problem with M......
  • R v Aloke Varma and Others
    • United Kingdom
    • Supreme Court
    • 10 October 2012
    ...6, the duty of the court to proceed under section 6 remains. The Court of Appeal has correctly so held on a number of occasions: see eg R v Hockey [2007] EWCA Crim 1577, [2008] 1 Cr App R (S) 20 The effect of section 15(2) and (3) is that, where the confiscation proceedings are postponed a......
  • R v John Reginald David Morgan and Another
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 20 June 2008
    ...proceeding to do amounted to an abuse of process. We consider that that concession was rightly made by the Crown.” The same was accepted in R v Hockey [2007] EWCA Crim 1577; [2008] 1 Cr App R (S) 50 at 279, paragraph 18, R v Nield [2007] EWCA Crim 993, and R v Farquhar (supra) at paragrap......
  • R v Mohammed Shabir
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 31 July 2008
    ...proceeding to do amounted to an abuse of process. We consider that that concession was rightly made by the Crown.” The same was accepted in R v Hockey [2007] EWCA Crim 1577; [2008] 1 Cr App R (S) 50 at 279, paragraph 18, R v Nield [2007] EWCA Crim 993, R v Farquhar (supra) at paragraph 12......
  • Request a trial to view additional results
1 books & journal articles
  • In court
    • United Kingdom
    • Probation Journal No. 55-3, September 2008
    • 1 September 2008
    ...would not be left without protection as the offender would be on licence withthe possibility of recall to prison. R v GOWAN [2008] 1 Cr. App. R.(S.) 50. Sexual Testing the IPP boundary The following two appeal cases serve to illustrate the kind of circumstances in whicha sentence of impriso......

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