R v Mohammed Shabir
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE,MR JUSTICE WALKER,Lord Justice Hughes |
| Judgment Date | 31 July 2008 |
| Neutral Citation | [2007] EWCA Crim 844,[2008] EWCA Crim 1809 |
| Docket Number | No: 200604466 D1,Case No: 2006/04466/ D1T20041146 |
| Court | Court of Appeal (Criminal Division) |
| Date | 31 July 2008 |
[2007] EWCA Crim 844
Lord Justice Keene
Mr Justice Owen
Mr Justice Walker
No: 200604466 D1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
MR M EVANS appeared on behalf of the APPLICANT
(Approved by the Court)
We are going to grant you leave to appeal against the confiscation order for reasons which my Lord, Walker J, will explain in a moment. We are not prepared to grant you, ourselves, leave to appeal against conviction but we do not refuse it. We make no order on that application because we think the proper course for you now to adopt is to get your tackle in order in the light of what you heard from my Lord's lips this morning and put in, if you wish to, having no doubt taken instructions, a proper application for an extension of time in which to seek leave to appeal against conviction, and that will be dealt with in the normal way. That is why we are not refusing it now because that would spike your guns. But if you want to in due course you can do that. That will mean you will have to formulate the grounds properly which you have not done yet.
My Lord I am grateful.
Were you seeking a representation order?
My Lord, I think I should, yes. So far as my appearance today is concerned, I have been instructed privately, so I cannot ask the court for——
Quite.
I think, hereafter, I would seek a representation order.
Yes, you can have a representation order, counsel only, I would have thought, would you not? No reason for it to be wider than that?
With my instructing solicitor sitting behind me it is difficult for me to agree, but I hear——
That is all you are getting, I am afraid.
I will ask Walker J to give a brief judgment, as much for the benefit, may I say, of the full court to which this appeal will in due course come on the confiscation order, as anything else.
***
My Lord has indicated that we grant leave to appeal against the confiscation order in this case. We give a short judgment, as the facts are a little complex and various questions of law may arise.
The confiscation order, which is now to be the subject of an appeal, was made by HHJ Hunt sitting in the Crown Court at Leeds on 9th January 2006 in an amount of £212,464.17. It follows the conviction of the applicant of seven offences, (counts 1, 4, 8, 10, 11, 14 and 18) of false accounting and six offences (counts 3, 7, 12, 13, 15 and 16) of obtaining a money transfer by deception, for which he was sentenced to a total of 9 months' imprisonment. It was the latter (counts 3, 7, 12, 13, 15 and 16) that were relied upon by the prosecutor as warranting the confiscation order.
The applicant was a pharmacist and, from May 2003, proprietor of a pharmacy in Cardigan Street, Leeds. He was required to submit a form FP34C to a Prescription Pricing Authority, together with all associated prescriptions. This was in effect an invoice. He was paid by the PPA in stages. The procedure apparently followed by the PPA is that form FP34C for month M is submitted by the pharmacy at the start of month M + 1. A payment on account is made at the start of month M + 2, or a day or so earlier. The balance is paid, and presumably any overpayment would be deducted, at the start of month M + 3, or a day or so earlier.
In each case the payments are made by Bankers' Automated Clearing Service transfer. Details of each monthly transfer are set out on a form, of which we have a sample and which we are told is form FP34. Our sample concerns a payment of £28,333.34 made by BACS transfer on 1 August 2003. The box headed “Summary of payment amounts” explains that this has two elements: £27,818.99 is “authorised by PPA”, and £514.35 is “authorised overleaf”. We appear to have no information about what was authorised overleaf. As to the £27,818.99, the vast bulk of this, £27,575.80, is the advance payment for June 2003. The balance of the £27,818.99 is a net amount for May 2003 of £243.91. This net amount for May is reached in two stages. First, reimbursements and remuneration totals for May 2003 are computed, which together, £23,750.60 and £4,260.33, amount to £28,010.93. Second, deductions are made for the payment already made on account, £27,987.42; and for prescription charges collected, 92 items at £6.30, equalling £579.60.
The prosecution case was that the applicant overclaimed in two different ways, each of them involving fraudulent accounting and obtaining a money transfer by deception. The first can conveniently be called “fee under-declaration” fraud: Failing to declare that prescription charges had been paid by the patient. Counts 1, 4 and 11 alleged that fraudulent accounting in this way had occurred when form FP34C was submitted for the months of May, July and November 2003. Counts 3, 7 and 15 alleged in this regard that at the start of M + 3, or two days earlier in the case of count 15, “by falsely representing that the details on form FP34” for the relevant month were accurate, he had obtained a money transfer by deception.
The second can conveniently be called “drug under-supply” fraud, claiming repayment for medicines which he had not dispensed. Counts 2, 6, 8, 10 and 14 alleged that fraudulent accounting in this way had occurred when form FP34C was submitted for the months of June, August, September and December 2003. Counts 5, 9, 12, 13 and 16 alleged that at the start of M + 3, or a day earlier in the case of counts 9 and 13, “by falsely representing that the details on form FP34” for the relevant months were accurate, he had obtained a money transfer by deception.
As regards the drug under-supply fraud the jury acquitted the applicant of false accounting for June and August, on counts 2 and 6, and on the corresponding counts 5 and 9 for obtaining a money transfer by deception.
On our calculation the amount of money transfers obtained on the face of counts 3, 7, 12, 13, 15 and 16 totalled £179,731.97. There appears to be an erroneous figure used in the prosecutor's statement in this regard at page 12.
The case was opened on the basis that the applicant was entitled to substantial payments but that his claims were exaggerated. When sentencing him, the judge observed that the applicant's actual financial gain was a modest £464, but what was involved was a serious abuse of trust.
The Proceeds of Crime Act 2002 by section 6(4) requires the court first to decide whether the defendant has a criminal lifestyle. If so, it must decide whether he has benefited from his general criminal conduct; if not, it must decide whether he has benefited from his particular criminal conduct. Two subsequent sections of the Act have particular relevance in this regard. They are sections 76 and 84. We shall not lengthen this judgment by setting them out.
The applicant's skeleton argument for the confiscation hearing submitted that the offences could have been drafted to allege that the submission of each relevant prescription was dishonest “rather than the FP34”, and that had that been done the true value of the property obtained would have been the same as the amount obtained in connection with the offences. By contrast, the approach taken by the prosecutor to the expression “as a result of or in connection with the offences” and to the statutory assumptions led to a total at that stage of £480,500—more than 1,000 times the dishonesty proven. Counsel suggested that this case could be distinguished from the case of R v Richards [2005] 2 Cr App R (S) 97 on the basis that in Richards all the claims were obtained by fraudulent declaration. In the applicant's case only a small part was obtained by fraud and the rest was legitimate payment, not as a result of or in connection with the offences. Any other interpretation was said to lead to substantial injustice.
At the hearing on 9 January 2006 the judge indicated that he preferred the contrary submissions of the prosecution. Although he did not say so expressly, that conclusion had two consequences. First, the amount of the benefit from conduct constituting the offences was not simply the £464 of financial gain: it was in excess of £179,000. Second, it followed that the “relevant benefit” under section 75 of the Act exceeded £5,000, with the consequence that the defendant must be held to have a criminal lifestyle and the court would have to decide whether he had benefited from his general criminal conduct. In that regard statutory assumptions would come into play in relation to property which did not form part of the benefit from conduct constituting the offence.
Following the judge's indication the parties asked for time. They returned to the judge, having reached agreement that, in the light of his conclusion, the statutory assumptions were bound to be applied to an amount of cash seized at the time the defendant was arrested. The parties agreed that the figure to be brought into play in this regard was £24,105, to be added to £188,359 in relation to the criminal conduct on the offences for which the defendant was convicted. These figures allowed for the increase in the value of money since the commission of the offence.
The judge duly made a confiscation order for the total of £212,464. He was told by the parties that a reasoned judgment was not required. Mr Martin Evans, who did not appear below, now submits that the judge ought to have decided the relevant question against the prosecution. For present purposes we do not need to analyse the grounds of appeal advanced by Mr Evans....
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