R v Waya (Terry)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ELIAS,Mr Justice Blake |
| Judgment Date | 25 March 2010 |
| Neutral Citation | [2009] EWCA Crim 2112,[2010] EWCA Crim 412 |
| Docket Number | No: 200801170 C3,No: 200801170/C3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 25 March 2010 |
[2009] EWCA Crim 2112
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Elias
Mr Justice Simon
Mr Justice Coulson
No: 200801170/C3
Mr I Krolick appeared on behalf of the Applicant
Mr B Morris appeared on behalf of the Crown
(As approved)
: This is an application for leave to appeal out of time in respect of the terms of a confiscation order.
The applicant was convicted of obtaining a money transfer by deception on 10th July 2004 at the Southwark Crown Court. He was sentenced to a community punishment order. Subsequently, on 25th January 2008, a confiscation order was made in the sum of £1,540,000 to be paid within 6 months or in default he was to serve 30 months' imprisonment.
The applicant obtained a mortgage from GE Money Home Lending in respect of a residential property in Prince Albert Road in London. He represented that he owned and directed a particular company. That was in fact false. As a consequence he obtained a loan of £465,000. He added to that the sum of £310,000, which resulted from his own money which he had perfectly lawfully obtained. He paid £775,000 for the house. The information provided to the mortgage company was false. Hence the basis for his conviction. He subsequently remortgaged and paid off the original mortgage; this was the subject of a second count but he was acquitted.
At the time of the confiscation hearing the property had increased in value to £1,850,000. The issue before the judge was what sum should be identified in the confiscation order. It is not disputed that it was appropriate to make a confiscation order and that he had benefited from his unlawful conduct.
The only issue on which we need now concentrate is that there was some issue before the judge—although it is right to say that the matter was not pursued with any great vigour by defending counsel—that the confiscation order should not include the sum that was subject to the mortgage.
The judge rejected that submission, and in particular a submission that since the remortgage was lawful, it should not be included in the order. He accepted the Crown's submission that it was only because the defendant had equity in the property that he was able to obtain the second mortgage and accordingly he should not be allowed to take the benefit of it. He also considered that he was bound by certain authorities, and in particular two decisions of R v K (July 1990) and R v Layode (March 1993), which were decided under the Criminal Justice Act 1988.
An application for permission to appeal that ruling was made on 20th February 2008. We have not seen the details of that application. In general terms it appears that one of the grounds was that the judge erred in fixing the benefit figure as the full value of the equity in the flat and not giving credit to the mortgage. That application was refused by the Single Judge in, it seems, early May 2008. There was no application to renew the application for permission until February 2009. So some 8 months out of time.
No very satisfactory basis has been given for the delay, in the sense that there was no obvious bar to a fresh application, or renewed application being made at the appropriate time.
When the renewed application was made, some emphasis was placed on an argument that the principles of law had developed since the ruling of His Honour Judge Rivlin, so as to make it just for time to be extended.
We have had the benefit of submissions from Mr Krolick, who also provided us with some detailed legal submissions as to the nature of his case. It is clear that he does not in truth rely on any developments in the law, certainly not since the rejection of the appeal by the learned judge. He relies on a case called R v Nadarajah [2007] EWCA Crim 2688 and in particular on the statutory provisions in sections 79 and 80 of the Proceeds of Crime Act.
His case can be put succinctly as follows. He accepts that the judge was entitled to conclude, and we think he was bound to conclude, that the obtaining of the mortgage was as a result of the criminal conduct. But the issue that the judge then has to decide is how one determines the value of that benefit that was obtained. He submits that in circumstances where the mortgage is repayable, as of course it will be, then it is wrong to treat it as having any significant benefit. Certainly it should not be treated as conferring upon the defendant a benefit which is equivalent to the full value of the mortgage. I have put that extremely succinctly. He has developed the argument with much greater skill in the argument he advanced in writing before us.
We have had some concerns about this matter because it is being pursued very late but we are persuaded, in the end, by Mr Krolick that it is an appropriate for us to extend time and allow this appeal to go a ahead. He is raising a point of law of some importance. As far as we and counsel know there is no decision which actually deals with this question about how one values a mortgage under this particular legislation. There are some cases where it seems to be assumed that the matter should be dealt with in the same way as the learned judge did here. But we think there is enough merit in the point to go for a hearing before the Full Court. Accordingly we grant permission for this case to go to the Full Court for a hearing.
: How long will it take?
The actual hearing itself or when it should be heard?
: The actual hearing itself.
It could well be a day. There will be skeleton arguments. Whether it will spill over a day, it all depends on what one hears.
: We will say a day. You will have to make sure it does not spill over. There are a number of points that need to be developed but a day should be plenty of time.
So your Lordship grants leave to appeal.
: We grant leave to appeal.
I have no other application to make.
: I did not think you would have at this stage, thank you very much.
My Lord, sorry could I have a copy of the grounds?
: I am bound to have lost it.
Forgive me for rising. The matter of lack of response was not a discourtesy. We chased the papers in this case for some considerable time and received them at the end of the week before last. So that is the reason there was not a response to my learned friend's skeleton, which should have happened months ago because they were available.
: It has been a bit unsatisfactory. You have been very helpful but it might have been helpful to have had submissions in advance. All right. Thank you very much.
[2010] EWCA Crim 412
IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE SOUTHWARK CROWN COURT
Before: Lord Justice Laws
Mr Justice Beatson
Mr Justice Blake
No: 200801170 C3
Ivan Krolick appeared on behalf of the Appellant
Brendan Morris appeared on behalf of the Crown
Hearing dates: 27 th January 2010
Mr Justice Blake:
Introduction
On 10 July 2007 at the Southwark Crown Court this Appellant was convicted of a count of obtaining a money transfer by deception contrary to s.15(A) Theft Act 1968 as amended. He was acquitted of a second count of similar conduct. He was sentenced to a community punishment order for 80 hours and confiscation proceedings adjourned. On 25 January 2008 a confiscation order was made against him by HHJ Rivlin QC in the sum of £1,540,000 to be paid within 6 months.
This is an appeal against part of the sentence, namely the confiscation order, leave to appeal and an extension of time in which to do so having been granted by the full court on the 8 September 2009. It is concerned with how the Proceeds of Crime Act 2002 applies to cases were a person has obtained a mortgage advance by way of deception.
Section 76 of the 2002 Act provides as follows
“(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 of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned;
c. conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence of offences concerned.
(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.
(5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of...
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