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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Barnett, R v [2011] EWCA Crim 2936 (21 December 2011) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/2936.html Cite as: [2011] EWCA Crim 2936 |
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ON APPEAL FROM MANCHESTER CROWN COURT
His Honour Judge Hernandez
T20060812, T20070655, T20077555
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE FOSKETT
and
HIS HONOUR JUDGE WIDE QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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REGINA |
Appellant |
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- and - |
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IAN STANLEY BARNETT |
Respondent |
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Andrew Jebb (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 6 December 2011
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Crown Copyright ©
Mr Justice Foskett:
Introduction
The background
"So in summary, the nature of the offences if this defendant were to enter a [guilty] plea would cross the custody threshold. The authorities suggest a short term of imprisonment, but I would be minded to find and accept that exceptional circumstances could be argued which would justify the imposition of a suspended sentence of imprisonment but it may be that additional financial penalties would be appropriate."
"The Crown accepts that there has been a degree of working in partnership with this defendant and the prosecution authorities. Those matters have been ventilated in the various skeleton arguments that were presented to me yesterday in support of an argument for and against abuse of process, and it is perhaps unnecessary for me to go into any further details at this point."
"… the prosecution [is] clearly alive and concerned about the possibility of a disproportionate result resulting in the event that a full confiscation hearing were to be heard, they suggest that a figure of £21,107 is an appropriate basis. That, I submit, will in some way impact upon your Honour's view of the case."
JUDGE HERNANDEZ: Yes, Mr Benson?
MR BENSON: Your Honour, I am grateful for the time and for the fact that Your Honour has given a Goodyear indication. May I just clarify one point of detail? Your Honour referred to … an additional financial penalty. I think myself and my learned friend presumed that you were contemplating the figure that my learned friend said was the appropriate basis on which to proceed, the £21,000 figure.
JUDGE HERNANDEZ: No, what I was intending to mean, that may be the matter subject to confiscation. There is a possibility of a fine being imposed and I will hear argument on that.
"Cash was also seized from the various premises in the hundreds, representing the preceding day's takings, but the police also had a warrant to search Mr Barnett's home address …, and when they searched his premises, they recovered still more documents, effectively records of accounts kept by him concerning those premises as well as a sizeable amount of cash. In total the amount of cash recovered was £21,017.34, and I might pause for a moment and tell Your Honour that so far as that figure is concerned, the Crown seek confiscation of it, please, under the terms of the Criminal Justice Act 1988. Documentation in connection with that has already been seized, and I offer that figure to Your Honour as being an agreed figure as between the parties in terms of benefit conferred by these offences, counts two and three, and being available for confiscation, that cash being in the possession of the police and accruing interest in an appropriate account."
"The prosecution have taken a realistic and pragmatic approach to this matter and they have assessed your financial benefit to be £21,017.34 representing monies found either on the premises or at your home, and the benefit has been agreed in that sum, and I have already made a confiscation order in that amount. I am told that there will be further investigations by the Inland Revenue and her Majesty' s Customs."
"I turn now to consider his benefit pid:8251figure. There is a dispute as to how the benefit figure should be calculated. Ian Barnett, seeks to argue that the Court, in calculating the benefit figure, should apportion his share of the takings at 37 percent to represent the fact that sums were deducted pid:8301to cover the running costs of the premises and the earnings of the prostitutes. I am bound by the analysis of the definition of benefit handed down by the House of Lords in R v May.
The benefit figure is the total value of the property for advantage obtained, not the pid:8351defendant's net profit after deduction of expenses paid to co-conspirators. I therefore accept the Crown's submissions as to the basis of the calculations to ascertain the benefit figure. It should be based on the takings without any deductions to cover the costs of the prostitutes or other business expenses. I pid:8402therefore accept the figure as put forward by the Crown, namely £5,071,222.70. This is based on a calculation of the proceeds from the brothels over the six year period which was calculated in the sum pid:8451of £5,102,204, less the £21,017.34 confiscated in the first trial."
(2) The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him -
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(3) The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him—
(a) as a result of his general criminal conduct, and
(b) at the earliest time he appears to have held it.
(4) The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.
(5) The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.
The principal argument
"[The defendant's] submissions raise another issue, namely whether the Crown are precluded from basing their calculations of his benefit figure by taking into account the period pid:7951covered by his 2005 conviction. I have read the transcript of those proceedings in 2005. I am satisfied that the order made was or should have been made pursuant to the Criminal Justice Act 1988. The order was in relation pid:8001to the sum of £21,017.34, which presented cash seized upon his arrest it was described as particular criminal conduct in relation to the two brothels. It was not characterised as general criminal conduct. There was no proceeds of crime pid:8051investigation undertaken.
In those circumstances I find that there is nothing unfair in the Crown seeking to determine the relevant day as being the 15th December 1999, that is six years prior to the date of his arrest in respect of the second trial.
In pid:8102the circumstances I do not consider it is unfair for the Crown to pursue these proceedings. However, I accept the Crown's concession that to avoid unfairness to the defendant, the sum of £21,017.34 should be deducted before the pid:8151defendant's benefit figure from his general criminal conduct is determined pursuant to section 8 of the Act within these current proceedings.
I therefore find that there is no abuse of process of the Court for these proceedings to be pursued by the Crown, nor do the circumstances reveal pid:8201any circumstances in which there could be a serious risk of injustice if any of the assumptions were made. In calculating his benefit figure, I have therefore applied the assumptions set out in section 10 of the Act."
(9) But if a confiscation order mentioned in section 8(3)(c) has been made against the defendant at any time during the period mentioned in subsection (8) -
(a) the relevant day is the day when the defendant's benefit was calculated for the purposes of the last such confiscation order ….
(3) Subsection (4) applies if -
(a) the conduct concerned is general criminal conduct,
(b) a confiscation order mentioned in subsection (5) has at an earlier time been made against the defendant, and
(c) his benefit for the purposes of that order was benefit from his general criminal conduct.
(4) His benefit found at the time the last confiscation order mentioned in subsection (3)(c) was made against him must be taken for the purposes of this section to be his benefit from his general criminal conduct at that time.
"72AA Confiscation relating to a course of criminal conduct.
(1) This section applies in a case where an offender is convicted, in any proceedings before the Crown Court or a magistrates' court, of a qualifying offence which is an offence of a relevant description, if -
(a) the prosecutor gives written notice for the purposes of subsection (1)(a) of section 71 above;
(b) that notice contains a declaration that it is the prosecutor's opinion that the case is one in which it is appropriate for the provisions of this section to be applied; and
(c) the offender -
(i) is convicted in those proceedings of at least two qualifying offences (including the offence in question); or
(ii) has been convicted of a qualifying offence on at least one previous occasion during the relevant period.
(2) In this section "qualifying offence", in relation to proceedings before the Crown Court or a magistrates' court, means any offence in relation to which all the following conditions are satisfied, that is to say -
(a) it is an offence to which this Part of this Act applies;
(b) it is an offence which was committed after the commencement of section 2 of the Proceeds of Crime Act 1995; and
(c) that court is satisfied that it is an offence from which the defendant has benefited.
(3) When proceeding under section 71 above in pursuance of the notice mentioned in subsection (1)(a) above, the court may, if it thinks fit, determine that (subject to subsection (5) below) the assumptions specified in subsection (4) below are to be made for the purpose -
(a) of determining whether the defendant has benefited from relevant criminal conduct; and
(b) if he has, of assessing the value of the defendant's benefit from such conduct.
(4) Those assumptions are -
(a) that any property appearing to the court -
(i) to be held by the defendant at the date of conviction or at any time in the period between that date and the determination in question, or
(ii) to have been transferred to him at any time since the beginning of the relevant period, was received by him, at the earliest time when he appears to the court to have held it, as a result of or in connection with the commission of offences to which this Part of this Act applies;
(b) that any expenditure of his since the beginning of the relevant period was met out of payments received by him as a result of or in connection with the commission of offences to which this Part of this Act applies; and
(c) that, for the purposes of valuing any benefit which he had or which he is assumed to have had at any time, he received the benefit free of any other interests in it.
(5) Where the court has determined that the assumptions specified in subsection (4) above are to be made in any case it shall not in that case make any such assumption in relation to any particular property or expenditure if -
(a) that assumption, so far as it relates to that property or expenditure, is shown to be incorrect in the defendant's case;
(b) that assumption, so far as it so relates, is shown to be correct in relation to an offence the defendant's benefit from which has been the subject of a previous confiscation order; or
(c) the court is satisfied that there would (for any other reason) be a serious risk of injustice in the defendant's case if the assumption were to be made in relation to that property or expenditure.
(6) Where the assumptions specified in subsection (4) above are made in any case, the offences from which, in accordance with those assumptions, the defendant is assumed to have benefited shall be treated as if they were comprised, for the purposes of this Part of this Act, in the conduct which is to be treated, in that case, as relevant criminal conduct in relation to the defendant.
(7) In this section "the date of conviction" means -
(a) in a case not falling within paragraph (b) below, the date on which the defendant is convicted of the offence in question, or
(b) where he is convicted of that offence and one or more other offences in the proceedings in question and those convictions are not all on the same date, the date of the latest of those convictions; and "the relevant period" means the period of six years ending when the proceedings in question were instituted against the defendant."
"(1) Where an offender is convicted, in any proceedings before the Crown Court or a magistrates' court, of an offence of a relevant description, it shall be the duty of the court:
(a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or
(b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed,
to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct."
"This section describes how the court must work out whether the defendant has benefited from criminal conduct and what the value of that benefit is. Subsection 2 explains that the court must regard the defendant as having benefited by the value of any property obtained by him from criminal conduct up to the time the court makes its decision. Subsections (3) to (8) deal with the situation where the court is holding a confiscation proceeding in respect of the defendant's general criminal conduct, and a previous confiscation order or orders has been made against the defendant in respect of such conduct. General criminal conduct means all the defendant's criminal conduct at any time, so a court making a general criminal conduct confiscation order could confiscate the same benefit twice, unless the legislation prevented it. Section 8 prevents double counting of the same benefit by providing (broadly) that, once the court has calculated the defendant's benefit from his or her general criminal conduct, it must deduct the amount ordered to be paid under the last general criminal conduct confiscation order previously made against the defendant. Sub-section (4) ensures that a calculation of benefit once made in relation to an offence will apply for the purposes of any subsequent calculation of benefit in respect of general criminal conduct. The provision is not required for particular criminal conduct because the same offences cannot be subject to a second conviction, or taken into consideration for sentencing purposes twice, and therefore there is no risk of confiscating the same benefit from particular criminal conduct twice."
The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (7) is a reference to conduct in respect of which a court is required or entitled to make one or more assumptions for the purpose of assessing a person's benefit from the conduct.
The reasons for rejecting the principal argument
"Regrettably a series of cases have come before the courts recently which reveal that the prosecuting authorities, including the advocates appearing for them, have been attaching far too little significance to ensuring that confiscation proceedings are effective. A series of cases have resulted in orders for the confiscation of substantial sums being set aside for the failure to adhere to procedural requirements that are often of a technical nature."
(1) A court shall not make a confiscation order unless the prosecutor has given written notice to the court to the effect that it appears to him that, were the court to consider that it ought to make such an order, it would be able to make an order requiring the offender to pay at least the minimum amount.
(2) If the prosecutor gives the court such a notice, the court shall determine whether it ought to make a confiscation order ….
"Notwithstanding the actual language of S.72(1) which read literally is mandatory in its terms, we would not regard it as likely that Parliament would, for example, be concerned to deprive the court of jurisdiction because of defects in the contents of the written notice which is required by S.72(1). The notice, which does not have to be given to the defendant, starts the procedure and avoids the court being involved in confiscation proceedings if the prosecutor thinks that the court would not be able to order the defendant to pay more than £10,000. Furthermore, once the 1995 Act was in force, this is the almost inevitable conclusion because not only was the court required to exercise its powers when a notice had been given it had power to exercise its powers of its own volition."
"Section 1 of the 1995 Act made a number of changes to section 71 of the 1988 Act and these changes may be summarised as follows: (i) a duty was placed upon the court to exercise its powers to embark upon confiscation proceedings in every case in which written notice had been given by the prosecutor; (ii) the court was given a power to institute confiscation proceedings of its own volition; (iii) the minimum figure of £10,000 was abolished."
"We have no doubt we should apply these paragraphs of the judgment in Sekhon. They are fatal to the arguments of the appellant on the jurisdiction issue. Any defects in the notice did not deprive the trial judge of jurisdiction."
Conclusion