R v Waya (Terry)
| Jurisdiction | England & Wales |
| Judge | Lord Walker,Sir Anthony Hughes,Lady Hale,Lord Judge,Lord Kerr,Lord Clarke,Lord Wilson,Lord Phillips,Lord Reed |
| Judgment Date | 14 November 2012 |
| Neutral Citation | [2012] UKSC 51 |
| Court | Supreme Court |
[2012] UKSC 51
Lord Phillips
Lord Walker
Lady Hale
Lord Judge
Lord Kerr
Lord Clarke
Lord Wilson
Lord Reed
Sir Anthony Hughes
Appellant
Ivan Krolick
Oliver Grimwood
Stephen Akinsanya
(Instructed by Central Law Practice)
Respondent
David Perry QC
William Hays
(Instructed by Crown Prosecution Service)
Advocates to the Court
Jonathan Swift QC
Duncan Penny
(Instructed by Treasury Solicitor)
Intervener (Secretary of State for the Home Department)
Lord Pannick QC
Mark Vinall
Emily Neill
(Instructed by Treasury Solicitor)
Heard on 27, 28 and 29 March 2012
Lord Walker AND Sir Anthony Hughes (with whom Lady Hale, Lord Judge, Lord Kerr, Lord Clarke and Lord Wilson agree)
This appeal raises important and difficult issues as to the meaning and effect of Part 2 of the Proceeds of Crime Act 2002 (" POCA"), dealing with post-conviction confiscation. It does not concern civil recovery under Part 5 of POCA, which was considered recently by the court in Serious Organised Crime Agency v Perry [2012] UKSC 35, [2012] 3 WLR 379 nor, although the argument ranged widely, did it address by any means all of the questions which are raised in a post-conviction case. But because of the importance and difficulty of the issues which are raised, the appeal (originally heard by a court of seven Justices in 2011) has been re-argued before a court of nine. These issues relate chiefly to the calculation of benefit and the impact of the Human Rights Act 1998 (" HRA"). At the rehearing the Court has had the benefit of argument not only on behalf of the original parties, but also from counsel instructed as advocates to the Court and counsel on behalf of the Secretary of State for the Home Department as an intervener.
POCA is concerned with the confiscation of the proceeds of crime. Its legislative purpose, like that of earlier enactments in this field, is to ensure that criminals (and especially professional criminals engaged in serious organised crime) do not profit from their crimes, and it sends a strong deterrent message to that effect. In R v Rezvi [2002] UKHL 1, [2003] 1 AC 1099, para 14, Lord Steyn stated:
"It is a notorious fact that professional and habitual criminals frequently take steps to conceal their profits from crime. Effective but fair powers of confiscating the proceeds of crime are therefore essential. The provisions of the 1988 Act are aimed at depriving such offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to deter the commission of further offences and to reduce the profits available to fund further criminal enterprises. These objectives reflect not only national but also international policy."
These observations have been cited and followed many times, although Lord Steyn's reference to punishment needs some qualification. Despite the use of the term "confiscation", which is a misnomer, orders under Part 2 of POCA are made in sums of money ("value-based") rather than being directed, as are civil recovery orders under Part 5 of POCA, at the divestment of specific assets. Nevertheless, a confiscation order is not an additional fine.
The legislation under which "value-based" criminal confiscation orders are made has changed significantly during the past thirty years. The main landmarks can be briefly summarised (there is a more detailed account, which also refers to the international conventions underlying some of the legislation, in the considered opinion of the Appellate Committee of the House of Lords, delivered by Lord Bingham, in R v May [2008] UKHL 28, [2008] AC 1028, para 8). The first statute, the Drug Trafficking Offences Act 1986 ("the 1986 Act") provided for confiscation of sums related to the proceeds of unlawful drug trafficking. The 1986 Act was repealed and replaced by the Drug Trafficking Act 1994 ("the 1994 Act"). In the meantime Part VI of the Criminal Justice Act 1988 ("the 1988 Act") had extended the range of offences in respect of which confiscation orders could be made. The 1988 Act and the 1994 Act were framed in similar but not identical terms and in some of the authorities the Court of Appeal had to consider whether relatively small variations in the scheme and language of the statutes reflected significant differences in legislative policy (see for instance R v Rose [2008] EWCA Crim 239, [2008] 1 WLR 2113, para 78). POCA has put an end to those difficulties, but they must be borne in mind when reading some of the older cases.
The Proceeds of Crime Act 1995 ("the 1995 Act") was an amending statute, but its effects were far-reaching and, with hindsight after the enactment of HRA a few years later, problematic. The 1995 Act removed from the Crown Court almost all discretion as to the making or quantum of a confiscation order, if it was applied for by the prosecution and the statutory requirements were satisfied. That remains the position under POCA. The Crown Court no longer has any power to use its discretion so as to mould the confiscation order to fit the facts and the justice of the case, even though a confiscation order may arise in every kind of crime from which the defendant has benefited, however briefly. The Crown Court has encountered many difficulties in applying POCA's strict regime. Many of the complexities and difficulties of confiscation cases, arising from the extremely involved statutory language, would undoubtedly be avoided if a measure of discretion were restored, but whether to restore it, and if so in which form, is a matter for Parliament and not for the courts.
On the introduction of the Bill that was later enacted as POCA it was certified in the usual way, under section 19 of HRA, as compatible with rights under the European Convention on Human Rights ("Convention rights"). The question now raised for this court is whether the application of POCA's rules for the calculation of benefit may, in some circumstances, give rise to a contravention of Convention rights. This is not a question which has arisen in cases before the Strasbourg court although other challenges to evidential aspects of confiscation legislation have been rejected, for example in Phillips v UK [2001] ECHR 437, (2001) 11 BHRC 280 (statutory assumptions) and Grayson and Barnham v UK [2008] ECHR 871; (2009) 48 EHRR 30 (onus on defendant to demonstrate realisable assets smaller than the benefit figure). This very important issue is addressed at section III below.
Part 2 of POCA has two general features of central importance to its structure. The first is the distinction between cases in which the defendant is, or is not, to be treated as having a criminal lifestyle (as prescribed by section 75 of POCA). Mr Waya's is not a criminal lifestyle case, but many of the authorities are concerned with criminal lifestyle cases, and it must be noted that the statutory assumptions made in those cases (under section 10 of POCA) are often determinative of the outcome.
The other structural feature is that the making and quantum of a confiscation order involve three stages. The first stage is the identification of the benefit obtained by the defendant (sections 6(4), 8 and 76 of POCA). The second stage is the valuation of that benefit. It may fall to be valued (sections 79 and 80) either at the time when it is obtained, or at the date of the confiscation order ("the confiscation day"). Intermediate events may be relevant, especially for the tracing exercise that may be required under section 80(3), but the valuation date must be either at the beginning or at the end of the process. The third stage is the valuation as at the confiscation day of all the defendant's realisable assets (designated in section 9 as "the available assets"). This value sets a cap on the amount ("the recoverable amount") of the confiscation order (section 7). In R v May [2008] AC 1028, para 8, the House of Lords emphasised that the Crown Court must proceed through these three stages in a systematic manner, and not elide them.
Because POCA covers a wide range of offences, Parliament has framed the statute in broad terms with a certain amount of what Lord Wilberforce (in a tax case) called "overkill". Examples of this are the apparently loose causal test in section 76(4) ("as a result of or in connection with the conduct") and the rather puzzling definition ("property is obtained by a person if he obtains an interest in it") in section 84(2)(b). Although the statute has often been described as "draconian" that cannot be a warrant for abandoning the traditional rule that a penal statute should be construed with some strictness. But subject to this and to HRA, the task of the Crown Court judge is to give effect to Parliament's intention as expressed in the language of the statute. The statutory language must be given a fair and purposive construction in order to give effect to its legislative policy.
Much of the argument in the appeal has focussed on sections 76, 79, 80 and 84 of POCA, and they must be set out in full.
"76 Conduct and benefit
(1) Criminal conduct is conduct which—
(a) constitutes an offence in England and Wales, or
(b) would constitute such an offence if it occurred in England and Wales.
(2) General criminal conduct of the defendant is all his criminal conduct, and it is immaterial—
(a) whether conduct occurred before or after the passing of this Act;
(b) whether property constituting a benefit from conduct was obtained before or after the passing of this Act.
(3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs—
(a) conduct which constitutes the offence or offences concerned;
(b) conduct which constitutes offences...
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