R v Paulet and Others
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice of England and Wales |
| Judgment Date | 28 July 2009 |
| Neutral Citation | [2009] EWCA Crim 1573 |
| Docket Number | Case No: 2009/00227/C5(1) 2008/02215/B2(3) |
| Court | Court of Appeal (Criminal Division) |
| Date | 28 July 2009 |
[2009] EWCA Crim 1573
The Lord Chief Justice of England and Wales
Mr Justice Collins and
Mr Justice Owen
Case No: 2009/00227/C5(1)
2008/05591/D5(2)
2008/02215/B2(3)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT DURHAM (1)
MR RECORDER ATHERTON
ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM (2)
HIS HONOUR JUDGE TEARE
ON APPEAL FROM THE CROWN COURT AT LUTOn (3)
HIS HONOUR JUDGE KAY QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr D. Perry QC and Mr W. Hays for the CPS (Durham)
Mr W Grier for Nelson (1)
Mr S. Farrell QC and Mr J. Ashley-Norman for the CPS (Nottingham)
Mr R.C. Mayo and Miss Carter-Manning for Pathak (2)
Mr T. Owen QC and Mr A. Bodnar for Paulet (3)
Mr S. Farrell QC for the Crown
Hearing dates: 9 th June 2009
These are linked cases. Nelson and Pathak, as we shall describe them, are respectively an application for leave to appeal and an appeal by the prosecution under section 31 of the Proceeds of Crime Act 2002 and Paulet is an appeal against a confiscation order made under the same act.
John Nelson – the facts
On 18 February 2008, in the execution of a search warrant at Nelson's address, the police discovered a JCB digger bearing a registration plate S492 JUG. This was the registration number of a similar JCB digger of which he was the registered keeper. Beneath it, the police found metal shavings consistent with recent drilling activity, and after further examination, it became apparent that the metal plate which carried the vehicle's unique identification number had been recently fitted. All this suggested that the digger was probably stolen. It was seized by the police.
Nelson was arrested two days later. He was interviewed under caution on the same day. He declined legal representation. He gave a false explanation for the presence of the digger on his premises. He said that he had previously owned a JCB digger with the registration plate S492 JUG. He had sold this without a log book, which had been stolen in the course of a burglary at his office. Some time after selling his digger, a man named Stuart had, with his permission, parked the digger found by the police. Further police investigations revealed the identity of the true owners of the digger, which had been stolen from their locked yard on the night of 13/14 February 2008. Its correct registration number was N947 EWR. Its value was estimated at £14,000. Following the theft its identity number and registration plate had been changed. Nelson was again interviewed by the police in April 2008. On this occasion he accepted that he had known all along that the digger found at his premises had been stolen from its true owner by a group of thieves. Before the theft had taken place a member of the gang had offered him £1,000 if he would supply them with the log book for his own digger together with duplicate number plates bearing the registration number of his digger. He accepted the offer and obtained the duplicate number plates. Following the theft he was aware that the new number plates had been fitted to the stolen vehicle, and indeed he had seen one of the gang “drilling and messing about in the yard”. His belief was that they planned to take the vehicle away from his address to Holland. He said that he had never received payment.
Nelson was charged with handling stolen goods. On 18 August 2008 at Durham Crown Court he pleaded guilty to handling stolen goods. On 19 September he was sentenced to 4 months' imprisonment suspended for 12 months. A document entitled “basis of plea” was put forward. The Crown was prepared to accept that Nelson had been promised £1,000 to hand over a log book for a digger he had sold and to provide an appropriate set of number plates for it, but that he had never received any payment. Accordingly it was asserted that he had never received any benefit from the crime, that the goods were recovered by the owner in an undamaged condition, and that this was a one-off transaction, rather than what was described as a “lifestyle offence”. In response the Crown, while not disputing the basis of plea regarding the facts, maintained that Nelson had indeed received benefit within the definition of section 76(4) of the Proceeds of Crime Act 2002.
Thereafter the Crown initiated confiscation proceedings. The appropriate statement of information alleged that Nelson had benefited to the value of £14,337.75, comprising the value of the digger itself, and an additional £337.75 which reflected changes in the value of money since the offence was committed. The statement further alleged that he held realisable assets in the sum of £35,000.
On 8 December 2008 during the course of the confiscation hearing, Mr Recorder Atherton decided that an order should not be made. The Recorder rightly rejected the submissions advanced by counsel who then appeared for Nelson that as the property had been recovered he had not obtained property for the purposes of the Proceeds of Crime Act 2002. Crucially, he rejected the contention that Nelson's role in the offence was merely to act as a conduit or courier. The judge concluded that, to the contrary, the respondent was “an active participant” and that “but for the provision of this false identity for the vehicle the enterprise would probably not have got off the ground”. He was as liable as any for its theft. This finding of fact is unassailable.
The judge referred to the “myriad of cases presented to him” which satisfied him that the application made by the prosecution was “properly made”, but nevertheless decided that the proceedings should be stayed as an abuse of process. Summarising his reasoning, although he accepted that Nelson had obtained property from his criminal conduct he had not benefited from it. He had received no payment, but more important, as the digger had not been shipped to Holland, and was recovered, undamaged, by its owner, a confiscation order against Nelson would have amounted to a fine. He concluded that although the proceedings were properly brought, nonetheless, they should be stayed.
Didier Paulet – the Facts
On 4 June 2007 in the Crown Court at Luton before His Honour Judge Kay QC Paulet pleaded guilty to three counts of obtaining a pecuniary advantage by deception namely that he was given the opportunity to earn remuneration or greater remuneration in an office or employment [with three employers] by deception namely…by falsely representing that he was entitled to work in the United Kingdom (counts 1–3), having a false identity document with intent (count 4) and driving while disqualified (count 5). He also pleaded guilty to the summary offence of driving without insurance which had been sent to the Crown Court.
On 29 June 2007 His Honour Judge Burke QC sentenced him to concurrent terms of 15 months' imprisonment on counts 1–4, together with a consecutive sentence of 2 months' imprisonment on count 5. No separate penalty was imposed for driving without insurance.
The total sentence therefore was 17 months' imprisonment, with an appropriate order relating to days spent on remand, and a disqualification from driving for 18 months. The appellant was also recommended for deportation. Of immediate concern to the present appeal, he was made subject to a confiscation order in the sum of £21,949.60 with a consecutive sentence of 12 months' imprisonment to be served in default.
The appellant came to this country from the Ivory Coast. He was living illegally in the United Kingdom at an address in Bedford. He was not entitled to seek or find paid employment here.
On 21 January 2007 the DVLA received an application for a provisional driving licence from the appellant. This application was accompanied by a French passport which, on later investigation, proved to be a false document.
On 27 February 2007 the appellant's home address was searched by the police. Banking documents and wage slips were seized. The appellant was subsequently arrested at his place of work. He admitted that he had driven to work. His car keys were found on him, and his car was found in the staff car park. It was subsequently established that he held a provisional driving licence, but that he was disqualified from driving.
Investigations with his employers revealed that the appellant had made a written application for employment as a forklift truck driver. He had submitted the false French passport he was later to use in his application to the DVLA in support of this application. That was intended to and did support his assertion that he was entitled to work in this country. The company had taken him on in January 2006. Since that date in the course of his employment he had earned £23,814.80 in gross wages. The employers stated that they would not have employed him if they had known that the passport he produced had been counterfeit.
Working backwards it was then established that he had been employed by another company from August 2004. For this purpose he provided himself with a false National Insurance number, and again suggested that he was entitled to work. During this employment he was paid £37,890.98 gross. Again it was stated that he would not have been employed if the company had known that he was not allowed to work in this country.
Working yet further backwards it emerged that the appellant had been employed in another company between April 2003 and November 2004. During this period of employment he was paid £11,587.39 gross. As with his previous...
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