R v Rezvi

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD SLYNN OF HADLEY,LORD BROWNE-WILKINSON,LORD STEYN,LORD HUTTON,LORD HOPE OF CRAIGHEAD
Judgment Date24 Jan 2002
Neutral Citation[2002] UKHL 2,[2002] UKHRR 374,[2002] UKHL 1

[2002] UKHL 1

HOUSE OF LORDS

Lord Slynn of Hadley

Lord Browne-Wilkinson

Lord Steyn

Lord Hope of Craighead

Lord Hutton

Regina
and
Rezvi
(Appellant)

(On Appeal from the Court of Appeal (Criminal Division))

LORD SLYNN OF HADLEY

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. I agree with him that this appeal should be dismissed on the basis of the decision of your Lordships' House in R v Kansal [2001] 3 WLR 1562. I also agree with the views he expresses as to the relationship between Convention rights and the provisions of the Criminal Justice Act 1988.

LORD BROWNE-WILKINSON

My Lords,

2

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. I agree with it and, for the reasons he has given, I too would dismiss this appeal.

LORD STEYN

My Lords,

3

At present the powers of the court to order the confiscation of the proceeds of crime are contained in three statutes, viz Part VI of the Criminal Justice Act 1988, the Drug Trafficking Act 1994 and Part III of the Terrorism Act 2000. If the Proceeds of Crime Bill (Bill 31 of 2001), which is presently before Parliament, is enacted it will create a uniform and more comprehensive system for confiscation orders in relation to persons who benefit from criminal conduct.

4

In outline the circumstances of the appeal before the House are as follows. On 11 October 1999 in the Crown Court at Snaresbrook the appellant pleaded guilty to two counts of theft on an indictment containing 14 counts of theft. On 10 April 2000 he was sentenced to 15 months' imprisonment on each count. On the same day after a hearing under the 1988 Act a judge made a confiscation order against the appellant in the sum of £214,839. He appealed to the Court of Appeal against the confiscation order. His appeal was heard together with other appeals including the appeal R v Benjafield [2001] 3 WLR 75, that case being concerned with a confiscation order under the 1994 Act. The principal point in both cases before the Court of Appeal was whether the making of confiscation orders under the 1988 Act and under the 1994 Act was compatible with the Human Rights Act 1998 which incorporated the European Convention for the Protection of Human Rights and Fundamental Freedoms into our law (Schedule 1). On the basis of the position as to retrospectivity as then understood, the Court of Appeal considered the position as if the 1998 Act was directly applicable to the two appeals. The Court of Appeal held that both the 1988 Act and the 1994 Act were compatible with the Convention. The Court of Appeal dismissed the appeal of the appellant (Rezvi) and adjourned the appeal of Benjafield for further argument. The Court of Appeal certified that a point of law of general public importance is involved, viz:

"Are the provisions of section 72AA of the Criminal Justice Act 1988, as amended, and section 4 of the Drug Trafficking Act 1994 incompatible with article 6 of the European Convention on Human Rights and/or article 1 of the First Protocol?"

With the leave of the House both Rezvi and Benjafield appealed to the House. The appeals raise in some respects similar questions but are otherwise unconnected. This opinion is only concerned with the appeal of Rezvi (and the 1988 Act). I will consider the appeal of Benjafield (and the 1994 Act) in a separate opinion. However, some reference to the 1994 Act will be necessary.

5

It is now necessary to return to the assumption that the 1998 Act is applicable to the present appeal. The appellant's plea of guilty, the sentence of the court, and the making of the confiscation order preceded the coming into operation of the 1998 Act on 2 October 2000. After the hearing of the appeals of Rezvi and Benjafield in the House of Lords the decision of the House in R v Kansal [2001] 3 WLR 1562, settled the issue of retrospectivity of the 1998 Act in respect of the outcome of criminal trials which were concluded before 2 October 2001: the 1998 Act is not applicable to such cases even if an appeal is heard after the relevant date. It follows that the appellant's Convention rights are not engaged. Nevertheless, given the fact that the Court of Appeal dealt with the Convention issues and bearing in mind the importance of the points, it would be sensible to give consideration to the potential impact of the Convention on the 1988 Act.

6

Before I turn to the principal issues it is necessary to explain the circumstance of the case in some more detail. On 24 February 1999 the police arrested the appellant on suspicion of theft from his employer. He had held the position of assistant financial controller at the St Giles Hotel, Bedford Avenue, London WC1 for more than three years and had worked at the hotel for approximately nine years. His salary was £23,000 per annum. The appellant admitted two counts of theft of £5,000 on 2 and 14 February 1999. The hotel asked security consultants to investigate the possibility of other thefts. They discovered that between April 1997 and February 1999, the hotel suffered losses totalling approximately £283,000. On 19 May 1999 the police interviewed the appellant in relation to these other losses. He denied that he was involved. He said others had been responsible for other thefts. He was charged with 14 specimen counts of theft and deception covering a period from April 1997 to February 1999. On 11 October 1999, in accordance with the admissions he made in interview, the appellant pleaded guilty to counts 13 and 14 which covered a period of 10 days only. Counsel for the Crown indicated that the pleas were not acceptable and that a trial was necessary. Witnesses from Malaysia were required and so the court ordered a delayed fixture. On 21 January 2000, the Crown served a prosecutor's statement in accordance with section 71(1)(a) of the 1988 Act. The statement stated that it was appropriate to proceed with confiscation proceedings under section 72AA. The prosecutor's statement explained that though he was entitled under the 1988 Act to examine the appellant's assets for a six- year period, he had chosen the period January 1997 to the commencement of proceedings (May 1999) as this is the period during which the appellant's financial lifestyle appears to change significantly. He had made large and regular deposits of cash into the various accounts which he controlled. And during a period when he was in receipt of a moderate income he had expended large amounts of cash. Applying the statutory assumptions, the prosecutor assessed the appellant's total benefit from his criminal activities at £622,375.64 and his realisable assets as £353,742.17. On 24 January 2000 counsel for the Crown told the judge that the appellant's plea brought him within section 72AA of the 1988 Act, that the relevant notices had been served, and that the Crown had decided not to proceed on the main counts on this indictment. He mentioned questions of expense as being one of the factors the Crown had taken into account. He applied for counts 1 to 12 to lie on the file and for sentence (including issues of confiscation) to be adjourned until April. Counsel for the appellant did not oppose the application. He said it was to his client's advantage that the prosecution were not proceeding on counts 1 to 12. Although the Crown offered to explain why it had chosen not to proceed with all counts in the indictment, the court did not require an explanation. The judge acceded to the Crown's application and counts 1 to 12 were ordered to lie on the file on the usual terms. On 28 March 2000 the appellant served a defence statement under section 73(2) of the 1988 Act in response to the prosecutor's statement. He relied on the fact that on 24 January the Crown had elected not to proceed on counts 1 to 12 of the indictment and asserted that there was no evidence to substantiate the Crown's claim as to wider losses. Counsel submitted that the court should not exercise its discretion under section 72AA(3) of the 1988 Act, and should not make the assumptions specified in section 72AA(4). The Crown responded to the defence statement on 4 April 2000 and rejected the argument that the court should not exercise its discretion to proceed under the assumptions provisions because counts 1 to 12 had not been proceeded with. On 10 April 2000, the judge heard evidence from the prosecution and defence as well as argument. He made a confiscation order. After considering the appellant's explanations for his ownership of various assets and moneys over the relevant period the judge concluded that he was unable to accept the appellant's version where it was unsupported. He said that the appellant's evidence was noteworthy for the lack of support where it could have easily been forthcoming. Applying the assumptions he concluded that the total benefit should be fixed at £539,734.60 and the realisable assets should be fixed at £214,839. He made a confiscation order in that sum.

7

The principal issues to which I will now turn are:

There are also additional points which I will briefly mention.

  • (i) Whether a person against whom a confiscation order is sought under section 71 of the 1988 Act is charged with a criminal offence within the meaning of article 6(2) of the Convention.

  • (ii) If such a person is charged with a criminal offence, whether the assumptions in section 72AA of the 1988 Act are compatible with the defendant's Convention rights.

  • (iii) Whether it is an abuse of the process of the court for the Crown, in exercise of its discretion under sections 71(1)(a) and 72AA(1)(b) of the 1988 Act, to ask the court to make a confiscation order in respect of conduct which overlaps with criminal charges to which the defendant has pleaded not guilty and which remain undetermined.

8

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