In this issue
Welcome
Ill-gotten gains and Unexplained Wealth Orders: A new game of hide and seek?
Co-operation need not lead to loss of privilege: SFO v ENRC revisited.
Assessing the Value of Benefit: Gross Turnover or Profit?
Business crime and the draft Sentencing Code
Regina v ALI BAHBAHANI [2018] EWCA Crim 95
R (on the application of Gibson) (Appellant) v Secretary of State for Justice (Respondent) [2018] UKSC 2
Regina v ALI BAHBAHANI [2018] EWCA Crim 95
 
Richard Fisher QC
Richard Fisher QC

By Richard Fisher QC

 

 

The Court of Appeal considered a number of points in this applicant’s application for leave to appeal against the sentence (confiscation order) imposed in the Crown Court and also to quash the conviction in the Magistrates Court. This commentary focusses on the confiscation order, but for anyone interested in further commentary on matters relating to the original conviction, the application for a venire de novo, and abuse of process, you can find this in a commentary written by my colleague Paul Taylor QC in our Criminal Appeals Bulletin.

 

THE FACTS

The applicant owned a property in west London where an outbuilding had been converted into residential accommodation without planning permission. An enforcement notice was issued against the applicant on 8 May 2009 which ordered cessation of use and removal of the kitchen and bathroom facilities. The second enforcement notice was dated 24 October 2012 and required the removal of extensions that had been erected without planning permission, cessation of use as residential flats and restoration of the building to the original condition. A third party, Mr Abdul-Jalil, impersonated the applicant during the Magistrates’ Court proceedings including the trial on 26 August 2014. The magistrates convicted the applicant and committed him for sentence to the Crown Court pursuant to s.70(5) of POCA 2002. It was not until the 15 September 2017 that the applicant was sentenced due to the Crown Court considering several applications to appeal (out of time) and an application to stay of the confiscation proceedings as an abuse of process. The confiscation hearing lasted eight days and an order of £4,310,311 was made (the benefit figure and the available amount were found to be in the same sum). The judge imposed fines of £1,000 on each offence.

 

THE APPEAL

The sentence appeal was limited to the confiscation order. The applicant’s particular criminal conduct was the sum of £26,000 and the remainder, £4,284,311, was assessed to be the applicant’s benefit from his general criminal conduct. This was a criminal lifestyle case by virtue of the fact that the offences were committed over a period of at least six months and he had benefitted in a sum in excess of £5,000 (s.75(2)(c) of POCA 2002 applied). On appeal the applicant submitted firstly, that the judge was wrong to apply the criminal lifestyle assumptions contained in s.10 because to do so created a serious risk of injustice, seeking to rely on s.10(6), secondly, and in the alternative, the applicant submitted that the confiscation order was in breach of the applicant’s rights protected by Article 1 of Protocol 1 of the ECHR, because it was disproportionate.

 

Their Lordships made light work of the applicant’s submissions. They rejected the first submission because they found that the judge heard extensive evidence over several days which looked at the applicant’s activities worldwide. Their Lordships cited the fact that the judge had found that much of the applicant’s evidence was false and manufactured. In addition there was no reason to find that the judge had erred in not disapplying the s.10 assumptions. As to the second submission their Lordships found that the confiscation sum was not disproportionate; it was the proper calculation of the benefit from the applicant’s criminal lifestyle.

 

COMMENT

This case perfectly illustrates the excoriating effect POCA confiscation proceedings can have in cases where the defendant is found to have a criminal lifestyle and the full force of the s.10 statutory assumptions then apply. In addition, it demonstrates the difficulties an applicant will face on appeal.

 

It is worth noting that the applicant’s benefit from the offences he was prosecuted for was assessed at only £26,000 which was a mere 0.60% of the confiscation order. The balance of £4,284,311 was all assumptions based benefit which the applicant had failed to disapply pursuant to s.10(6)(a) or (b). That is a stark result, no criminal convictions were secured in relation to that £4.28million of property obtained as a result or in connection with the conduct. What was the conduct you may ask? Well, the answer is: it doesn’t really matter because the assumptions apply and therefore as a matter of law it is assumed that the conduct was criminal due to the offender having a criminal lifestyle.

 

In such a case an applicant faces a very difficult task on appeal. Where a judge has heard the evidence at the confiscation hearing, in the absence of establishing clear errors of law and/or fact, the Court of Appeal will be reluctant to interfere with findings as to credibility.