R v Knights (Richard Michael)

JurisdictionEngland & Wales
JudgeMr Justice Keith,The Lord Chief Justice of England and Wales,Mr Justice Holland
Judgment Date16 December 2002
Neutral Citation[2002] EWCA Crim 2954
CourtCourt of Appeal (Criminal Division)
Docket NumberCase No: (1) 1999/05684/X2 (3) 2000/01016/X2 (4) 2000/01245/X2 (5) 2001/04807/Y2 (6) 2001/04865/Y2 (7) 2002/00603/W1
Date16 December 2002
Between:
(1) Daljit Singh Sekhon
(2) Shangara Singh
(3) Satnam Singh
(4) Gurdev Singh Dhnoay
(5) Richard Michael Knights
(6) Kevin Maguire
(7) Kevin McFaul
Appellants
and
R
Respondent

[2002] EWCA Crim 2954

Before:

The Lord Chief Justice of England and Wales,

Mr Justice Holland

and

Mr Justice Keith

Case No: (1) 1999/05684/X2

(2) 2000/01015/X2

(3) 2000/01016/X2

(4) 2000/01245/X2

(5) 2001/04807/Y2

(6) 2001/04865/Y2

(7) 2002/00603/W1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM CROWN COURT AT

NEWCASTLE UPON TYNE (HHJ WOOD)

AND CROWN COURT AT KINGSTON-UPON-THAMES

(HHJ HAWORTH)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Mr Balbir Singh (instructed by Murria Solicitors, Birmingham) for the 1 st Appellant

Mr Avtar Bhatoa (instructed by Bassra Solicitors, Bradford) for the 2 nd Appellant

Mr Robert Rhodes QC and Mr Simon Taylor (instructed by Pannone and Partners, Manchester) for the 3 rd Appellant

Mr Sunit Sandhu (instructed by Harbans Singh Solicitors, Birmingham) for the 4 th Appellant

Mr Christopher Campbell-Clyne (instructed by Harkarys Solicitors, London) for the 5 th Appellant

Mr Joseph Boothby for the 6 th Appellant

Mr Jason Smith for the Applicant (7)

Mr David Perry and Mr John Muir (instructed by The Solicitor for H.M Customs and Excise, London) for the Crown (Appellants 1,2,3,4)

Mr Michael Brompton (instructed by The Solicitor for H.M Customs and Excise, London) for the Crown (Appellants 5,6)

The Lord Chief Justice

INTRODUCTION

1

One of the most successful weapons which can be used to discourage offences that are committed in order to enrich the offenders is to ensure that if the offenders are brought to justice, any profit which they have made from their offending is confiscated. It is therefore not surprising that Parliament has repeatedly enacted legislation designed to enable the courts to confiscate the proceeds of crime.

2

Regrettably a series of cases have come before the courts recently which reveal that the prosecuting authorities, including the advocates appearing for them, have been attaching far too little significance to ensuring that confiscation proceedings are effective. A series of cases have resulted in orders for the confiscation of substantial sums being set aside for the failure to adhere to procedural requirements that are often of a technical nature.

3

Furthermore, until Mr Perry was instructed to appear in the present cases, on behalf of the prosecution, important arguments as to the effect of non-compliance with procedural requirements were not placed before the courts.

4

These repeated failures on the part of prosecuting authorities should not be allowed to continue. The sort of mistakes being made are apparent from the cases to which it will be necessary to refer in this judgment which relates to appeals arising out of three prosecutions. The first prosecution is in respect of Daljit Singh Sekhon, Satnam Singh, Shangara Singh and Gurdev Singh Dhnoay. The second prosecution relates to Kevin McFaul and the third prosecution to Richard Michael Knights and Kevin Maguire.

5

It is convenient before turning to the circumstances of these cases to set out the statutory framework. It is also desirable to consider the large body of case law that has accumulated around that legislation. In relation to both the legislation and the case law we are indebted to Mr Perry for the account that he provided. In the description that we now provide, we rely heavily on his extremely helpful submissions. It is necessary to refer to the successive legislation because even in relation to the same trial different legislation can apply to different defendants because of the dates on which their respective provisions came into force.

The Background to the Legislation

6

The 1988 Act: An Overview of the Provisions

i) The Hodgson Committee report, 'The Profits of Crime and their Recovery, Howard League for Penal Reform, 1984,' made a number of recommendations which form the background to confiscation provisions in the Criminal Justice Act 1988 ("the 1988 Act"). It is the 1988 Act as subsequently amended with which we are concerned in these appeals.

ii) The report recommended the repeal of the criminal bankruptcy order and its replacement with a sentence of confiscation designed to catch the profits of major crime. Following these recommendations, a confiscation regime was introduced in relation to drug trafficking by the Drug Trafficking Offences Act 1986. As well as including the powers of restraint and confiscation, that Act also contained a statutory assumption to the effect that a drug trafficker's assets were the proceeds of crime and therefore liable to confiscation.

iii) The 1988 Act introduced a new power to make a confiscation order in the case of certain crimes other than drug trafficking offences. The confiscation provisions in the 1988 Act, as originally enacted, applied mainly to offenders in the Crown Court and only in cases where the defendant had benefited by at least £10,000 from the offence (S.71). In such cases the maximum amount of the confiscation order was the amount of the benefit or the extent of the realisable property, whichever was the lesser.

iv) The procedure for making a confiscation order involved the prosecution serving a notice (section 72) and, thereafter, was subject to a procedure requiring further statements and counter-statements to establish the extent of the defendant's benefit (section 73).

v) Section 74 provided rules for calculating the "amount that might be realised" and contains provisions designed to defeat sham transactions.

vi) Confiscation orders were to be enforced as unpaid fines (section 75) but it was also provided that a receiver might be appointed to realise the defendant's property in order to apply it in satisfaction of the order (sections 80 to 82).

vii) The pre-trial restraint of property was provided for in sections 76 to 79. Two forms of order were introduced. First, a restraint order, which may be used to prevent dealing with designated property and, secondly, the charging order which may be used to impose a charge on designated property to preserve assets for a future confiscation order.

viii) The provisions of the 1988 Act most relevant to the issues raised in these appeals are sections 71 and 72 that are in Part VI of the Act. We refer to them initially in their unamended form.

Section 71

7

Section 71, so far as material, provides as follows:

(1) "The Crown Court and a magistrates' court shall each have power, in addition to dealing with an offender in any other way, to make an order under this section requiring him to pay such sum as the court thinks fit.

(2) The Crown Court may make such an order against an offender where:

(a) he is found guilty of any offence to which this Part of this Act applies; and

(b) it is satisfied:

(i) that he has benefited from that offence or from that offence taken together with some other offence of which he is convicted in the same proceedings, or which the court takes into consideration in determining his sentence, and which is not a drug trafficking offence; and

(ii) that his benefit is at least the minimum amount.

(3) (…)

(4) For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained.

(5) Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this Part of this Act as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage.

(6) The sum which an order made by a court under this section requires an offender to pay must be at least the minimum amount, but must not exceed:

(a) the benefit in respect of which it is made; or

(b) the amount appearing to the court to be the amount that might be realised at the time the order is made, whichever is the less.

(7) For the purposes of this Part of this Act the minimum amount is £10,000 …

(8) (…)

(9) (…)"

Thus, by reason of section 71, before a Court had power to make a confiscation order the Court had to be satisfied that the defendant had benefited by at least £10,000. This followed a recommendation made by the Hodgson Committee which had been in favour of limiting the power to make confiscation orders by reference to a sum of money so as to prevent its operation in impracticable small cases.

Section 72

8

Section 72, so far as material, provides:

(1) "A court shall not make a confiscation order unless the prosecutor has given written notice to the court to the effect that it appears to him that, were the court to consider that it ought to make such an order, it would be able to make an order requiring the offender to pay at least the minimum amount.

(2) If the prosecutor gives the court such a notice, the court shall determine whether it ought to make a confiscation order.

(3) (…)

(4) If the court determines that it ought to make such an order, the court shall, before sentencing or otherwise dealing with the offender in respect of the offence or, as the case may be, any of the offences concerned, determine the amount to be recovered in his case by virtue of this section and make a confiscation order for that amount specifying the offence or offences."

Under section 72(1) and (2) the procedure for making an order was dependent on the prosecution giving notice that there were likely to be sufficient assets to meet it. Where such a notice was given, the Court was bound to consider the making...

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