Windsor v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hooper |
| Judgment Date | 08 February 2011 |
| Neutral Citation | [2011] EWCA Crim 143 |
| Court | Court of Appeal (Criminal Division) |
| Date | 08 February 2011 |
| Docket Number | Case Nos: 201100203D5 & 201100210D5 & 201100209D5 & 201100208D5 & 201100209D5 & 201100205D5 & 201100204D5 |
[2011] EWCA Crim 143
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HHJ HAWKINS QC
Before : Lord Justice Hooper
Mr Justice Openshaw
and
Sir Geoffrey Grigson
Case Nos: 201100203D5 & 201100210D5 & 201100209D5 & 201100208D5 & 201100209D5 & 201100205D5 & 201100204D5
RST016/2010
Mr O Pownall QC and Mr R Ashiq appeared for Alexander Windsor
Mr J Pickup QC and Mr R Ashiq appeared for Kulwant Singh Hare
Mr A Jones QC and Mr R Bowers appeared for Avtar Singh Hare & Pelvinder Kaur Hare
Mr G Jones QC and Mr M Glover appeared for Eastenders Cash & Carry plc and othersall instructed by Messrs. Anami Law, Epping, Essex.
Mr B Stancombe and Mr C Convey appeared for the Crown Prosecution Service
Hearing dates: 25 th & 26 th January 2011
Lord Justice Hooper :
All members of this court have contributed to the preparation of this judgment.
This is an appeal against the making of restraint and receivership orders.
On Monday 6 December 2010 HHJ Hawkins QC was sitting at the Old Bailey trying a murder case with the jury due to be sent out the following Monday. During the morning he heard an ex parte application by counsel for the respondent (who did not argue the appeal) for restraint and receivership orders under Part 2 of the Proceeds of Crime Act 2002 (" POCA"). A number of the orders made are the subject matter of this appeal. He was told that those persons whose assets it was intended to restrain were to be arrested on the following day and that search warrants would be executed.
During what was only a 40 minute hearing the judge signed various restraint and receivership orders affecting five alleged offenders (two of whom have not appealed), affecting Pelvinder Hare, affecting a group of companies which for convenience we shall call "the Eastenders group" and other companies. We compare that period of 40 minutes with the time it took us to determine only one issue, namely a day and a half following two days' preparation for the hearing.
Pelvinder Hare and the Eastenders group are not alleged offenders but are interested parties. The three alleged offenders, described as defendants in the orders, who have appealed are Alexander Windsor, Kulwant Hare and Avtar Hare.
We shall look at the material relied upon by the respondent below. It is sufficient to say at this stage that in correspondence to the Court of Appeal Criminal Division the solicitor for the respondent described the alleged fraud in this way:
My career dealing with Customs work now spans over 23 years and for the last 20 years I have specialised exclusively in cases involving the restraint and confiscation of the proceeds of crime. I believe I can fairly state that this is the most complex restraint and receivership case I have ever managed, more so even that the case of Louis Glatt in which we have all been involved for the last 15 years.… The restraint and receivership application itself was very complex and the paperwork it generated substantial…. This case is far removed from what might be described as a "typical" restraint case.
Those companies in the Eastenders group which were active at the time of the order were involved in a wholesale cash and carry business supplying general groceries along with wines, beers and spirits. They had a total turnover in the region of £150 million and employed some 120 employees. All customers of the business are required to be VAT registered.
The shares in the holding company Eastenders Cash and Carry PLC (incorporated in 2002) are divided equally between Alexander Windsor and Kulwant Hare. The ownership of the shares in the subsidiary companies is divided between the holding company and a number of minority shareholders who appear as interested parties represented by Mr Geraint Jones QC.
The orders were made the day before search warrants were executed and the five defendants were arrested. Following their arrests the defendants were not charged but released on "police bail" until June 2011.
After an inter partes hearing HHJ Hawkins refused on December 23 to discharge or vary the orders made on 6 December, giving his reasons for his refusal on 4 January.
During the hearing before us we granted leave to appeal and during and at the end of the appeal hearing we announced our various conclusions. Counsel then drew up an agreed order to reflect those conclusions and we now give our reasons. Included within that draft order was an agreed variation of the order relating to Pelvinder Hare and we need say no more about her or that variation.
Some days before the appeal hearing (which lasted two days) we directed that the court would resolve first whether the respondent had shown on 6 December that there was reasonable cause to believe that the three alleged offenders had benefited from the criminal conduct alleged against them. That was the first ground of appeal. A second ground related to the alleged failure to quantify the benefit from the alleged criminal conduct and what is said to be an error on the part of the judge to restrain all of the assets of the three alleged offenders in the absence of a calculable benefit figure. A third ground related the judge's conclusion that a restraint order was needed to prevent dissipation of the realisable property to which the order applied. A fourth ground challenged the finding, implicit in the decision of 6 December, that the assets of the Eastenders group were realisable property held by the alleged offenders, Kulwant Hare and Windsor. There were other grounds, including a ground alleging that the reasons of the judge on 4 January were wholly inadequate, which it is not now necessary to determine.
Mr James Pickup QC argued the first ground with Mr Stancombe replying on behalf of the respondent.
During the second day of the hearing we concluded that the first ground of appeal succeeded and that the judge was wrong on 6 December to find on the material before him that there was reasonable cause to believe that the three alleged offenders who have appealed had benefited from the alleged criminal conduct. In the light of that conclusion, it was not necessary for us, nor indeed possible, to resolve the second ground of appeal relating to the alleged failure to quantify the benefit and the third ground relating to the risks of dissipation.
However the Court decided that we should suspend (or postpone) the effect of the final order in so far as it related to the first ground to permit the respondent to make a speedy fresh application to a judge sitting in the Crown Court. Mr Alun Jones QC objected to that course. We asked for further written submissions on this issue which we have now received. The respondent and the other two appellants did not support Mr Jones. For reasons which we shall give below, it is our view that we have the power to suspend in these circumstances. The order quashing this part of the decision of HHJ Hawkins on 6 December will come into effect when the judge hearing the application announces his decision on the application and, in any event, no later than a date which we shall fix after the case management hearing referred to below.
Because the fresh hearing was, as we understood the situation, expected to start next Monday the 7 th of February, this judgment has had to be produced in haste. Since sending out a draft to the parties, we have learnt that the hearing would not start on that day and that there will be a case management hearing on the day that this judgment is handed down.
We did however hear and determine with immediate effect the fourth ground challenging the judge's implicit finding on 6 December that the assets of the Eastenders group were the realisable assets of the two alleged offenders, Kulwant Hare and Windsor, and should therefore fall within the restraint order preventing them from disposing of their assets. The effect of this part of the order was to close down the business at the busiest time of the year. The 6 December order also appointed a receiver with power to take possession of the property of the group. On December 15 HHJ Hawkins gave the receivers further power including the power to manage the property of the group and to realise so much of the receivership property as was necessary to meet his remuneration and expenses. With that power the receiver could recommence trading and did so but only on 18 December, some 15 days after the stores had had to cease business following the service of the 6 December order on the following day.
Mr Geraint Jones argued the fourth ground and Mr Convey replied on behalf of the respondent.
At the end of the second day's hearing we announced our conclusion that the fourth ground succeeded and that the assets of the Eastenders group were not in any event realisable property held by the two alleged offenders and that it followed that the order appointing a receiver in relation to the assets of the group had also to be quashed.
Statutory framework
Part 2 of the Proceeds of Crime Act makes provision for the making of confiscation orders in England and Wales following conviction and the making of restraint and receivership orders both before and after proceedings have been started. In this case the orders were made before...
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