Posted: 21 / 07 / 2013
The Court of Appeal have now tackled issues relating to appeals against old confiscation orders which appear to be incorrect following the Supreme Court’s decision last year in R v Waya.
The conflicting principles
In a previous blog article I described the general background. Briefly, an appeal against a decision in the Crown Court normally has to be initiated within 28 days of the decision being made (that involves some form filling). An appeal can still be considered even where that deadline has been missed – but only if permission can be obtained from the Court of Appeal (either from a single judge or the full court).
In deciding whether to give permission the Court of Appeal has to consider two conflicting principles. Firstly the outcome of proceedings should be just. Secondly the outcome of proceedings should be final. It would be chaotic if every time there was a new interpretation of the law all previous relevant decisions had to be reconsidered by the appeal courts.
The general rule is that the Court of Appeal will not allow an appeal to be made out of time if the only reason for the appeal is that subsequent cases have shown the previous perception of the legal position was mistaken. But this has sometimes been subject to exceptions where the defendant has suffered a substantial injustice.
Wrong – but a substantial injustice?
But if the Crown Court has made a confiscation order which, whilst it appeared to be correct when it was made, in the light of more recent authority now is obviously wrong – is that enough to show a substantial injustice which the appeal courts should correct?
Most of the previous case law on appeals out of time in what are sometimes referred to as ‘change of law’ cases did not relate to confiscation orders. It could be argued that confiscation cases are rather different from most other cases because a confiscation order involves payment of money and – if that money has been paid in error – then it would be a simple matter to pay it back.
Also in confiscation cases there is often a long delay between the order being made and it having a full effect. This is because the defendant is ordinarily allowed time to pay and even more time will elapse before a default sentence will be activated.
So it could be argued that there is a greater opportunity for courts to, if you like, correct previous mistakes in relation to confiscation orders.
Mr Jawad’s case
The Court of Appeal took the opportunity in May 2013 to comment on the situation in the case of R v Jawad  EWCA Crim 644 where, perhaps fearing a deluge of late appeals, the court commented at paragraph : “We should make clear the general approach of this court, over many years, to change of law cases. An extension of time will not be granted routinely in such a case simply because the law has changed. It will be granted only if substantial injustice would otherwise be done to the defendant, and the mere fact of change of law does not ordinarily create such injustice”.
But in the case of Jawad leave to appeal out of time (by just a few days) had already been granted by the single judge before the matter came before the full court – so that judgment did not explore that issue more fully.
The cases of Mr Raza, Mr Bashir & Mr Bestel
More recently these issues have been fully explored in the judgment of the Court of Appeal in the case of Bestel & Others v R  EWCA Crim 1305 (19 July 2013).
In essence this judgment confirms that, even in a confiscation case, the mere fact that the Crown Court confiscation order now seems incorrect is not, of itself, sufficient to persuade the court to allow an appeal to be heard out of time to correct the position.
This is most clearly demonstrated in relation to Mr Naim Raza who had pleaded guilty to two counts of mortgage fraud involving total loans of £237,505. In subsequent confiscation proceedings the Crown Court had ruled in July 2011 (before the Supreme Court judgment in Waya had been made) that Mr Raza’s benefit was the total amount borrowed – £237,505. Mr Raza had an available amount, based on the equity in the properties and the value of his business, of £203,069. A confiscation order was therefore made for £203,069.
After the Supreme Court judgment in Waya in 2012, Mr Raza sought permission to make a late appeal against his confiscation order. It was agreed by all parties that, on the basis of the law as explained by the Supreme Court in Waya, Mr Raza’s benefit should only have been £10,710 (rather than £237,505).
But the Court of Appeal refused to allow Mr Raza to appeal against the incorrect benefit figure. The fact that the benefit figure now appears incorrect, simply as a result of subsequent developments in the understanding of the law, was not enough to warrant permission to appeal out of time to re-open the determination of Mr Raza’s benefit.
The appeal court noted that the confiscation order had been limited to Mr Raza’s available amount and that, if his assets in the event proved to realise less than the figure assessed by the Crown Court, he could seek an adjustment to the confiscation order under s23 PoCA 2002. So the Court of Appeal did not consider that Mr Raza risked imprisonment unjustly as a result of the benefit figure being too high.
In the same judgment the Court of Appeal also refused permission to appeal the confiscation order which had been made against Mr Sahid Bashir in December 2011. The Court of Appeal noted that, at the time of the Crown Court proceedings, Mr Bashir had agreed the benefit figure in his case. The appeal court did not consider that a substantial injustice was done by holding him to that agreement. So Mr Bashir was not permitted to make a late appeal against his confiscation order.
But in the case of Jean Pierre Bestel the Court of Appeal did give permission to appeal out of time and it referred his confiscation order back to the Crown Court for reconsideration. This was because the appeal court found a number of issues in Mr Bestel’s case had not been dealt with properly by the Crown Court when his confiscation order was made in July 2012. In particular the Crown Court judge had not given proper consideration to all the evidence which was before him at that time regarding Mr Bestel’s available amount.
Because Mr Bestel’s case has now to be reconsidered in the Crown Court both his benefit figure and his available amount may be amended. The Crown Court will reconsider the position in the light of the law as it is now understood to be, having regard to the Supreme Court judgment in Waya.
These cases clarify the picture in relation to confiscation appeals out of time. But no doubt further appeals will come before the courts – and these cases do not deal with the question which may arise on an application by the prosecution under s22 PoCA 2002 to pursue further amounts where a confiscation order has been limited to the available amount of the defendant at the time the order was made. In considering whether it would be just to make an order under s22 will a court have to reconsider the circumstances in which the benefit figure was previously determined – and the changed legal position as a result of subsequent case law? That remains to be resolved.
(Note: This article applies to confiscation orders under the provisions of Part 2 of the Proceeds of Crime Act 2002 in England and Wales. There are a number of additional issues which could be relevant to a defendant’s confiscation order in particular cases which it is not possible to deal with in a relatively short article such as this. Appropriate professional advice should be sought in each individual case.)