Financial Crime Case Law Updater | June 2024

This edition of the financial crime case law updater is complied by Fatima Jama and Georgia-Mae Chung.

Confiscation orders – Failure to complete proceedings within time allotted by section 14 of 2002 Act – Crown Court backlog – Coronavirus – Criminal Bar Association action

The Court of Appeal examined four cases involving confiscation proceedings that were impacted by the increase in the Crown Court backlog. The court cited the impact of the coronavirus and the series of actions by the criminal barristers who were part of the Criminal Bar Association.

Under Section 31(2) of the Proceeds of Crime Act 2002 (“the 2002 Act”), the prosecution had sought leave to appeal against refusals by Crown Court judges to make confiscation orders against the respondents. This was because of a failure to complete the proceedings within the time permitted by the Proceeds of Crime Act 2002, Section 14. The court granted leave in all four cases.

The court reinforced that the 2002 regime for confiscation imposes a duty to act upon the court. In respect of the proposition that the court is required to conclude the proceedings within two years of conviction unless there are exceptional circumstances, the Court of Appeal observed:

[28] The absence of an application cannot deprive the court of jurisdiction to act and a fortiori neither can a late application, made after the expiry of the permitted period.

Regarding the impact of any successful appeal, the court stated that:

[11] If this court allows a prosecutor’s appeal and directs the Crown Court to “proceed afresh” this does not mean that the confiscation proceedings have to start again from scratch. The Crown Court is required to carry on the proceedings from the point at which it had declined to make a confiscation order, on the basis that it has jurisdiction to do so.

The court then examined the four cases individually and made a variety of findings:

Mark Haden

The respondent pleaded guilty to possession of a controlled drug of class A with intent to supply on 13 May 2021. A hearing was listed which, ordinarily, could have led towards confiscation proceedings. However, it was then taken out of the list and no new date was fixed. The prosecution emailed the court on a number of occasions to point out that it needed to be relisted.

The judge refused to extend period for the confiscation proceedings, as he found that there were not exceptional circumstances. The Court of Appeal disagreed and found that there were such exceptional circumstances:

[44] The failure of the court to list the case when asked to do so was first caused by the pandemic and the CBA action and continued for reasons which are not obvious. The prosecution repeatedly asked the court to do what was required, but the court failed to do so. That, we hope, is exceptional.

Chadley Smith

18 February 2020, Chadley Smith pleaded guilty to conspiracy to produce a controlled drug of Class B. Nine other defendants were sentenced on the same day. The proceedings then became more complex as additional defendants became involved and the “POCA” section of the DCS contained around 3,000 pages of documents. The filing system was also chaotic.

On 15 December 2021, Mr Recorder Hilton granted an application by the Crown for the postponement of the expiry of the relevant time limits in respect of some of Smith’s co-defendants. Smith’s case was listed and he was represented by counsel, although he was not present. A transcript of the hearing claimed that there had been no extension in his case. The transcript clarified that extensions had been granted for a number of defendants who had been specifically named. Although this did not include Smith.

There were then several subsequent hearings. In one of them, an extension was granted for Smith by Judge Nicholls. Following this, another extension was applied for in front of Mr Recorder Long. However, Mr Recorder Long was not made aware of the extension granted by Judge Nicholls. He instead merely considered the decision of Mr Recorder Hilton, which did not include Smith’s name. On this basis, no exceptional circumstances were found, and the extension was not granted.

The Court of Appeal held that Judge Nicholls’ order was unimpeachable and valid unless set aside or varied. In any event, the confiscation proceedings were heard by Mr Recorder Long within the two-year time period on 12^th October 2023:

[60] They were due for hearing that day and, as far as we know, ready to be heard. No unfairness or prejudice in hearing them was found by the judge and they must be sent back to the Crown Court with a direction to proceed afresh. In this case that means that they need to be listed for determination, and determined.

Jason Blair and Piret Rohelsaar

On 8^th September 2020, Jason Blair pleaded guilty to producing a controlled drug of class B. On 6^th December 2021, Piret Rohelsaar pleaded guilty to permitting premises to be used for the production of a controlled drug. On 1^st December 2023, His Honour Judge Morgan declined to make confiscation orders in both cases. The hearing during which this decision was made took place more than 2 years after Blair’s conviction but less than 2 years after Rohelsaar’s. Contested confiscation proceedings were then listed from 29^th – 31^st January 2024.

The judge dealt with two applications by the prosecution on 1^st December 2023. Each was to postpone confiscation proceedings. The reason advanced for the need to extend the permitted period in Blair’s case was a wrongly recorded conviction date. For Rohelsaar, it was noted that the prosecution had determined previously that proceedings against her should be withdrawn. However, they later revoked this withdrawal.

The judge found that it was not the duty of the Court or the Respondents to draw the potential expiry of the period for confiscation proceedings to the court’s attention. However, the Court of Appeal held that His Honour was wrong to conclude this:

[71] In particular he set out a passage from the judgment of the court given by Irwin J in Johal which emphasised the need for listing officers to be alive to the two year period and to the fact that the parties may not alert them to its potential expiry. For reasons he did not explain, the judge read that passage as meaning that its strictures were addressed to the Crown Prosecution Service, rather than to court staff. It is the court which is under a statutory duty to proceed in accordance with section 6 of the 2002 Act, following the procedure set out in section 14. 

[72] Having set out the passage from Johal he concluded:-

“To his credit [prosecuting counsel] does not suggest that it’s the duty of the Court or the duty of the Respondents to these applications to draw these matters to the attention of the Court” 

[73] This was a clear misdirection. Section 6 of the 2002 Act as interpreted by the passage in Johal which the judge had just set out clearly imposes precisely that duty on the Court. 

[78] In the case of Rohelsaar he did not consider whether there were exceptional circumstances justifying the 2 month postponement for which the prosecution were asking. He found instead that there were exceptional circumstances which meant that it should not be granted, although he did not say what they were. We presume he meant that the CPS took 4 months to decide to reinstate the proceedings against her and then to inform her and the court of the decision. In fact, the need for an extension in her case arose from the failure by the court to list the case for determination within 12 months from 6 December 2022 when the proceedings against her were resurrected. The judge did not address this period of time. This was probably because he wrongly held that the court had no duty to act as required by Irwin J in Johal. 

[79] In Blair’s case the judge misdirected himself as to the proper construction of section 14 notwithstanding its clear and binding exposition in Soneji and Guraj. Had he approached the case on a proper basis he would have granted the application and the permitted period would have been extended and the confiscation proceedings determined within that time. 

[80] In Rohelsaar’s case the application was made within the permitted time and the circumstances were clearly exceptional. She had been dropped from the proceedings for perfectly good reasons and then added back into the proceedings, also for perfectly good reasons. It would certainly have been courteous and efficient to inform the court of this prior to 6 December 2023 so that the question of any necessary procedural safeguards for her could be considered if she asserted an interest in the property which Blair had previously asserted was his alone. However, the decision that a failure to do this constituted exceptional circumstances which meant that the proceedings against her should be brought to an end on procedural grounds was clearly wrong.

Jake Mann, Kerry Long, Christopher Cartwright, Stephen Tootell, Spencer Watkins, James Will

This appeal also required the Court of Appeal to decide whether it is lawful to start confiscation proceedings more than two years after conviction. It involved a long-running drug case that was substantially affected by the court backlog and delays. It involved 12 defendants, all of whom pleaded guilty or were convicted after a trial. These were spaced out over a long period and the last trial concluded on 7 February 2023.

It is suggested that the first mention of confiscation was in the prosecution’s sentencing note dated 3 March 2023. The first defendants to be convicted were Mr Watkins and Mr Will who pleaded guilty on 15^th September 2020.

On 29 September HHJ Hirst granted the prosecution’s application to extend the two year period due to exceptional circumstances for Mr Long. However, the next day, His Honour refused to do so in the case of Mann. This difference was due to case law being brought to his attention. This was the case of Iqbal [2010] EWCA Crim 1557. The Court of Appeal judged that His Honour was led into error by this authority.

The court found that His Honour was incorrect to refuse to extend the permitted period:

[91] We reject the submission which has been made to us that the reasoning in Soneji and Guraj does not apply because the court was under no duty to proceed in accordance with section 6 of the 2002 Act in this case because the condition in section 6(3) was never met. The prosecutor asked the court to proceed under section 6 by its sentencing note of 3 March 2023. This request was made more than two years after the convictions in five of the cases before us, but that is entirely immaterial. The two year period does not govern the time when a request must be made under 6(3)(a), but the time for which a postponement may thereafter be granted. A request may be made at any time before the court becomes functus officio, i.e. at any time before a date 56 days after sentence is passed.

Ng & O’Reilly [2024] EWCA Crim 493 

Appeal – abuse of process – under-resourcing of the criminal justice system – delays – resumption of the proceedings in the Crown Court

[1.] “Judges sitting in the criminal courts deal on a daily basis with challenges arising out of under-resourcing of the criminal justice system. In this case, the judge had to deal with non-attendance of prosecuting trial counsel. His response was to stay the proceedings as an abuse of the process of the court (the Terminating Ruling).

[2.] This is an application under s. 58 of the Criminal Justice Act 2003 for leave to appeal the Terminating Ruling and, if leave is granted, for an order to set aside the stay so that the trial can proceed”.

Summary of the facts

The allegations arise out of events said to have taken place on 7 March 2022. The prosecution case is as follows. The Respondents, Ms Ng and Mr O’Reilly, were in a relationship at the time. Mr O’Reilly, using Ms Ng’s mobile telephone, sent abusive and threatening messages to Ms Ng’s former partner, Mr Jay Ingram. Mr O’Reilly and Ms Ng then drove to Mr Ingram’s workplace. They encountered a man, Mr Craig Robertson, saying that they wanted to kill Mr Ingram. Mr Robertson told them that Mr Ingram was not there. Mr O’Reilly and Ms Ng proceeded to assault Mr Robertson, including with a hammer. Ms Ng also assaulted another man, Mr James Lukey, and made threats to kill him. By this stage, Mr Ingram and two others had come out. Ms Ng then struck Mr Ingram on the side of his head with a hammer.

The early proceedings

The police attended and arrested the Respondents, who were charged as follows: Ms Ng with assault occasioning actual bodily harm against Mr Ingram and Mr Robertson (counts 1 and 2); possession of an offensive weapon (count 3) and assault by beating against Mr Lukey (count 4); Mr O’Reilly with malicious communication to Mr Ingram (count 5) and assault by beating against Mr Robertson (count 6). They appeared in the Magistrates’ Court where their cases were sent to the Crown Court.

The first adjournment: November 2022 to July 2023

At a PTPH on 19 April 2022, both Respondents pleaded not guilty and the case was placed in a warned list for trial in the week commencing 7 November 2022. At a hearing on 18 October 2022, the case was removed from that list on the ground that it was not considered in the interests of justice for Ms Ng to stand trial alongside Mr O’Reilly until the conclusion of other proceedings. This case was therefore adjourned and placed in the warned list for the week commencing 3 July 2023.

The second adjournment: July 2023 to January 2024

However, the case was not listed in the week of 3 July 2023 and was adjourned administratively to a warned list commencing 29 January 2024. The judge said in his ruling that the case had been removed from the warned list at the prosecution’s request because of lack of counsel. There is nothing on the digital court file to record this, and our enquiries have not been able to confirm it. But we proceed on the basis that the judge’s understanding was accurate.

The third adjournment: January 2024

On Friday 26 January 2024, the chambers of prosecuting counsel asked for the case not to be listed on Monday 29 January 2024 due to the unavailability of counsel. That request was granted. The case thus came into the warned list on 30 January 2024 as a “backer” trial not to commence before noon.

On 29 January 2024, the Crown Prosecution Service (CPS) wrote to the court setting out the unsuccessful steps that had been taken to secure trial counsel for the next day, and requesting that the matter not be listed on 30 January. The CPS stated that chambers had explained that prosecution counsel had “an important matter later [that] week”. Chambers stated that they had contacted “over 120 sets of chambers” without success. The CPS indicated that it had looked at their Crown Advocates’ Diary, and no one was available, as well as contacting all other 13 CPS areas for cover. They were yet to receive responses from their counterparts.

Further, just after 4.30pm on 29 January 2024, solicitors for Mr O’Reilly emailed the court to indicate he was now in custody and would have to be produced the next day.

The request for the matter not to be listed on 30 January 2024 was refused. However, on 30 January 2024, the priority case ahead of the trial of Mr O’Reilly and Ms Ng was effective and went ahead. Further, Mr O’Reilly was not produced.

Abuse of Process

The hearing of the abuse of process application took place on 8 March 2024. By this stage prosecution counsel had explained why they had come to the “difficult decision” on 29 January 2024 that they were obliged to be available for a sentencing hearing with a substantial dispute as to the factual basis of conviction following trial, to be heard on 1 February 2024.

Both Respondents submitted broadly the same argument, namely that the failure of the CPS to secure the attendance of prosecution counsel when the matter was listed for trial on 30 January 2024 amount to an abuse of process such that the proceedings should be stayed.

Guidance from [36.] onwards.

[58.] For all these reasons, the appeal is allowed. The Terminating Ruling is reversed. It was based on mistakes of fact; involved an error of law and principle and was a ruling that it was not reasonable for the judge to have made. 

[59.] We order a resumption of the proceedings in the Crown Court, with the case to be listed as a fixed trial on the first available date.

R v Tamiz [2024] EWCA Crim 200 

Appeals – section 31 of the Criminal Appeal Act 1968 – Loss of Time Order – section 29 Criminal Appeal Act 1968

Introduction

The applicants were Sohila Tamiz (“ST”) and Pedram Tamiz (“PT”). On 19 July 2022, following a trial before Judge Lowe (the “trial judge”) and a jury that lasted four-and-a-half weeks, they were convicted of a series of offences arising out of their harassment and unlawful eviction of their tenants. On 10 October 2022, ST was sentenced to 5 years imprisonment. PT was sentenced to 40 months’ imprisonment.

ST sought permission to appeal against her conviction and identified nine grounds of appeal. PT also sought permission to appeal against conviction, relying on the same nine grounds. PT had also sought permission to appeal against his sentence. That was refused by the single judge and was abandoned.

Commentary

The applications for permission to appeal against convictions were considered in detail by the single judge, Julian Knowles J (“the single judge”). It was explained in detail how and why the applications were unarguable and refused permission to appeal. These renewed applications to the full court made no allowance for, or reference to, that detailed analysis by the single judge. Depending on the outcome, therefore, these renewed applications gave rise to the risk that this court would make loss of time orders in respect of both ST and PT, pursuant to the Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985.

The practice of renewing applications for permission to appeal by echoing the original application has become more common. This approach disregards the developments made to the procedure under section 31 of the Criminal Appeal Act 1968 over the past 20 years. Instead of a brief explanation, the single judge now provides a detailed mini-judgment outlining the reasons for refusal. These reasons must be carefully considered before any renewed application is submitted. Applicants need to evaluate their chances of success and the potential risk of failure before deciding to renew a failed permission to appeal application. They must address the single judge’s reasoning rather than ignore it.

In this case, the renewed applications, which included issues such as the admissibility of non-defendant bad character evidence, appeared to lack merit and were submitted almost automatically. This has had a significant impact on resources, requiring nine days of appellate judicial time to review a trial that lasted four-and-a-half weeks. Given these circumstances, loss of time orders pursuant to section 29 of the 1968 Act was not issued, primarily due to the applicants’ personal circumstances and the single judge not marking the relevant box, which, though not decisive, was relevant. However, in future cases of this nature, the court will not hesitate to make such orders.

It is important therefore for practitioners who renew applications after refusal by the single judge to lodge a further document justifying the renewal and setting out in argument form reasons why it is said that the single judge’s decision is wrong. It is likely that this will become a formal requirement within the Criminal Procedure Rules.

“[101]. For all those reasons, therefore, we consider Ground 9 to be unarguable. 

Conclusion on the renewed applications to appeal against conviction 

[102]. In our view, for the reasons that we have set out, there is nothing in any of the Grounds of Appeal raised by ST and supported by PT.  Standing back, considering the case in the round, we are satisfied that the convictions against ST and PT are entirely safe.  

[103]. It follows from what we have said that we consider that these renewed applications are, and always were, hopeless.  They have incurred a considerable waste of court resources.  We are therefore going to invite Mr Vaughan to address the court as to why we should not make loss of time orders in each case. (Further submissions. The court adjourned for a short time to consider its judgment on this aspect of the applications) 

Loss of Time Orders? 

[104.] We have considered carefully whether to make loss of time orders in this case.  This was a case where there were a number of detailed rulings by the trial judge during the course of a four-and-a-half week trial.  The grounds of appeal largely focussed on those rulings. They were then considered in detail by the single judge.  There was also a detailed Respondent’s Notice.  The single judge’s refusal meant that most of the points on which the applicants relied before us had already been judicially considered and rejected not once but twice. Following refusal, it seems to us that the applicants should have sat down and said to themselves, “Well, what is wrong with what the single judge said? What is the answer to the points he made and which are made in the Respondent’s Notice? Is there an answer?” None of that appears to have happened here. 

[105.] Instead, it looks as if the applications were renewed almost automatically. In our view, the practice of simply replicating an application for permission to appeal, as if the single judge had not set out detailed reasons for refusal, is becoming more common and needs to stop. It takes no account of the fact that, in the last 20 years, the s.31 procedure has been improved out of all recognition: instead of one or two paragraphs, the single judge provides a detailed mini-judgment explaining the reasons for refusal. In our view, those reasons need to be respected and properly considered before any renewed application is made. 

[106]. The problems caused by renewing an application, despite what the single judge has said, were particularly acute in this case.  The three members of this court have had to get up to speed with a vast amount of detail arising out of a trial that lasted four-and-a-half weeks. That has taken each of us around three days.  So that is nine days of judicial time.  In addition, my Lady is the Honorary Recorder of Redbridge, so a number of other judges have had to do the administrative work which she would otherwise have done in those three days. 

[107.] Accordingly, these applications have had a huge impact on resources. And yet they were inherently hopeless, as we have demonstrated: unrealistic and devoid of any merit. That combination explains why we have been so concerned about this case.  

[108.] However, we have decided that, in all the circumstances, we will not make loss of time orders.  That is largely to do with the personal circumstances of both ST and PT which we do not set out here; partly because the single judge did not tick the relevant box (which is far from being determinative, but is material); and partly due to the other submissions that Mr Vaughan has made. We acknowledge the industry that he has demonstrated throughout.  

[109.] That said, the time has come when applicants who wish to renew their failed PTA applications need to think long and hard about their prospects of success and the risk of failure. In particular, they need to grapple with what the single judge has said, not just ignore it.  In the future, in a case of this sort, this court will have no hesitation in making a loss of time order.  

[110.] So Mr Vaughan, for those reasons, in this case we are not going to make loss of time orders, but we have to say it was a very close-run thing.”