Moss, R. v [2008] EWCA Crim 2454

[2008] EWCA Crim 2454Case No 200802203/D1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 8 October 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE GRIFFITH WILLIAMS
THE RECORDER OF WINCHESTER
(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
PAUL FRANCIS MOSS
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR R C Griffiths appeared for AppellantMR C Convey appeared for Crown
J U D G M E N T

LORD JUSTICE TOULSON:

[1]On 8 December 2005 at St Albans Crown Court, the appellant pleaded guilty to conspiracy to import cocaine and to a large number of drug offences. On 21 December 2005 he was sentenced to a total of 17 years' imprisonment, less 208 days spent on remand, and to a travel restriction order for 25 years, subsequently reduced on appeal to 15 years.[2]On 6 March 2008 a confiscation order was imposed on the appellant by His Honour Judge Plumstead in the sum of £1,433,753 to be paid within 12 months with five years' imprisonment consecutive in default. The judge found that the appellant had a criminal lifestyle and against that finding there is no appeal. He assessed the appellant's total benefit in the sum of £4,357,823, but assessed the appellant's recoverable assets in the lower figure for which he made the confiscation order.[3]A large number of grounds of appeal were advanced. The single judge granted leave in respect of certain grounds and referred others to the Full Court. He drew attention to the unsatisfactory and confusing state of the papers and directed that counsel should prepare a schedule of the judge's findings in order that on the appeal this court could see more clearly what were the issues, what were the findings challenged and what was the material before the judge to support those findings. We are grateful to counsel for their co-operation in preparing an agreed schedule and list of issues.[4]In relation to the grounds on which leave to appeal was granted there remains one substantial contested issue to which we turn first. The benefit found by the judge included the sum of £2,150,0000, described in the schedule as being in respect of cocaine recovered from the yacht Are Nui. The yatch had been used in a drugs enterprise in which the appellant was involved and the yacht had been seized.[5]Although the schedule succinctly and realistically shows the figure as being in respect of the drugs recovered from the yacht, the judge was forced to approach the issue of any benefit which could be ascribed to the appellant's activities respecting that shipment in a circuitous manner as a result of the decision of this court in the case of Hussain [2006] EWCA Crim 621. In that case it was held that drugs unlawfully held are to be regarded as having a nil market value, whether for the purpose of assessing an offender's benefit from crime or his available assets because "market value" in section 79 of the Proceeds of Crime Act 2002 is to be taken as meaning value in a lawful market. The authorities in this area were considered recently by this court in the case of Islam [2008] EWCA Crim 1740, in which the court itself to be bound by Hussain but certified that there was an issue fit for consideration by the House of Lords.[6]The judge appreciated that he could not therefore treat the goods in the form of the cocaine, which were the subject of that shipment, as valuable property derived from the appellant's criminality. However, it is possible for a court to infer on appropriate facts that the purchase of such drugs must have come from prior criminal activity and to use market evidence to calculate what the purchase price must have been, so as to infer a prior benefit from other criminal dealings of that amount. The difficulty which faced the judge in this case was that the appellant had been involved with others in the Are Nui enterprise. The appellant's account was that the entire transaction was conducted on a credit basis. Unsurprisingly the judge rejected that implausible suggestion. He found as a fact that the purchase had been funded by one means or another up front, and that this appellant and another had been responsible for providing or securing such payment. He went on to make an explicit finding that he could not say, nor could anyone say, which conspirator had paid what and when. Nevertheless, he considered that it was open to him infer that the appellant had received an antecedent benefit from his general criminal lifestyle, equal to the full amount of the purchase price of those drugs. He did so by applying the assumption in section 10(4) of the Act. That section provides as follows:
"(1) If the court decides under section 6 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of -- (a) deciding whether he has benefited from his general criminal conduct, and (b) deciding his benefit from the conduct. ... (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."
[7]The judge's reasoning can be summarised as follows. This venture was a joint criminal enterprise. Joint participants in a criminal enterprise are jointly liable for all that they do. The expenditure provided in order to purchase the goods was made pursuant to the criminal venture for the benefit of the conspirators. Accordingly, it was to be assumed against this appellant that it came from property obtained by him as a result of his earlier criminal conduct, regardless of what sum he in fact contributed to the purchase of the goods, as to which, as already recorded, the judge said it was impossible to make any finding of fact.[8]It was submitted on his behalf by Mr Griffiths that the judge was wrong to apply the assumption in that way.Mr Convey for the prosecution submitted that the judge was right. He submitted that when criminals obtain property pursuant to a joint enterprise, each is deemed to obtain the full benefit of the property so acquired. By parity of reasoning, where criminals incur expenditure each is deemed to have had the assets from which the expenditure was incurred. We accept Mr Griffiths' submission that the judge fell into error in the way that he approached this matter.[9]As to the prosecution's submission, the first point requires qualification. There is a clear distinction between criminal culpability for acts done pursuant to a joint enterprise and the benefit obtained by any particular conspirator. In terms of criminal liability all are liable to be punished for what is done by any of them pursuant to the conspiracy. The greater the role of any particular conspirator, the heavier the punishment he may deserve.[10]What benefit has been obtained by any particular defendant is a question of fact. Different conspirators may benefit in different amounts. This subject was considered in the recent trio of cases in the House of Lords, May [2005] UKHL 28, Jennings [2008] UKHL 29 and Green {2008] UKHL 30, particularly Green at paragraph 15. The matter was summarised more recently in the decision of this court in Sivarman [2008] EWCA Crim 1736 at paragraphs 12, 13 and 19.[11]A statutory assumption should not be applied if to do so would be contrary to common sense. The purpose of the third assumption is plain. If somebody is proved to have had a criminal lifestyle and can be shown to have incurred some particular expenditure, he is effectively put to proof to show that the expenditure came from a lawful source. The underlying common sense assumption is that if an offender has expended the money, he had the money to expend in the first place, and that, if he is a career criminal, the money which he used for that expenditure is likely to represent the proceeds of crime. If not, he should be able to demonstrate to the court the innocent source. But the starting point is a finding that a defendant has incurred expenditure.[12]Suppose that separate amounts of money are expended on a joint venture, let us say, by offenders A, B and C. If A, B and C each contributes £100,000 towards a venture, be it criminal or non-criminal, there is no warrant as a matter of common sense for treating offender A as having previously had £300,000, i.e the total amount of his, B's and C's contributions, from his past conduct. The same must apply when the judge concludes that A and another or others made contributions but he is unable to make any finding as to the amount expended by A.[13]Mr Convey submitted that if the court were to take this approach it would have very severe practical consequences when dealing with criminals like this appellant who do not keep open and honest accounts.[14]There are a number of possible answers to that question. We recognise that the problem stems from the present state of the law which requires the prosecution in a case of this kind to take the rather circuitous route of using market evidence to infer a prior benefit rather than being able to point directly to the acquired drugs as an actual benefit. It remains to be seen whether the law in that respect will be changed. But as things are it would have been open to the prosecution to invite the judge to have taken a different practical approach. It would have been open to the prosecution to invite the judge, for example, to find that if there were two conspirators and the offender elected to give no evidence, or gave evidence which was disbelieved, it could not unfairly be assumed that he provided half the funds. What facts may properly be found by the judge are a matter of evidence. It remains that in this case that the judge made a positive finding that it was impossible to tell how much the appellant had paid for these drugs.[15]At a late stage in the argument Mr Convey sought to advance an alternative argument, that this court should at least make some finding of the amount paid by this appellant to purchase these drugs, and from that finding should infer that this amount came from previous criminal conduct. He suggested that this court should find that the appellant provided 50 per cent. Alternatively, he submitted that this appellant should be found to have provided £600,000, based on evidence about the funding by the appellant of a previous similar drugs venture.[16]There are difficulties about that approach. In the first place, this court is a court of review. If the judge had made such findings this court would have been slow to disturb them. But the judge made an explicit finding that no facts as to the amount of payment could be made, and it is a different matter for this court then to make a finding of fact which the judge found it impossible to make.[17]Furthermore, this point has been raised at a very late hour. It was open to the prosecution to have sought to put its case in alternative ways. Moreover, the appellant wishes also to challenge the basis of the judge's factual findings about the cost of the drugs involved in the relevant venture.[18]We could not fairly allow the prosecution to advance its alternative case at this stage without letting the appellant develop his challenge against the judge's findings and that would involve us having to look at a not insubstantial amount of evidence which is not presently before the court. We note also that the removal of this item from the benefit found by the judge will make no difference to the amount of the confiscation order. Its only possible relevance for the future would be if the appellant were to be found to have some previously undiscovered source of wealth and the prosecution wanted to apply for an increase in the amount of the confiscation order.[19]For those reasons we uphold the appellant's challenge to the judge's ruling on this issue and decline to allow the prosecution to advance an alternative case on it. The consequence of this finding is that the benefit figure found by the judge will be reduced by £2,150,000. The total amount of the assessed benefit will therefore be £2,207,823.22.[20]There was another ground on which leave was granted, but in respect of which there is now no dispute. The order of the court did not as drawn reflect the judge's intention. There is no need for us to say more formally about that issue in the course of this judgment.[21]We turn to the issues on which the appellant has not been granted leave, but seeks leave. We deal with these more shortly.[22]Complaint is made that the judge included as part of the appellant's benefit a sum of £550,000, which the appellant admitted to having paid over to a German co-conspirator, but in evidence said was made on behalf of another person. The complaint is that this sum did not form part of the benefit asserted by the prosecution at the time of the confiscation hearing. The prosecution had earlier sought to advance this as part of the appellant's benefit, but had abandoned that part of the claim. However, the matter emerged during the course of evidence. It was pursued by the judge himself and he found that it did represent benefit obtained by the appellant.[23]We can see no unfairness in the way the judge proceeded. Where an issue arises in the course of a hearing, which was not being advanced as part of the offender's benefit at the start of the hearing, it must always be a question of fairness whether the judge thinks it right to take the matter into account or not. He will obviously have to consider whether the offender has had a fair opportunity of dealing with the matter. In this case the appellant gave his evidence about it. The judge disbelieved him. We can see no injustice in the way that the judge approached the matter. Accordingly, leave on this ground is refused.[24]Next, complaint is made that the judge applied the assumption set out in paragraph 10(3) of the Act. That subsection provides:
"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."
[25]It is observed that there is no cut-off date as to the date of acquisition of property to which that subsection can apply. Here Parliament has drawn a distinction between property held by the defendant and expenditure by the defendant. Under section 10(4) the assumption in relation to expenditure only applies to expenditure occurred after the relevant day, i.e within a period of six years prior to the commencement of the relevant proceedings.[26]All the provisions of section 10 are subject to section 10(6), which prohibits a court from making an assumption where there will be a serious risk of injustice if the assumption was made. In this case much of the property held by the appellant had been held by him for a long time. He advanced explanations for it. The judge was unimpressed by those explanations and held that they were insufficient to rebut the statutory assumption. We can see no arguable error of law in the judge's approach to this matter. Accordingly, we also refuse leave to appeal in respect of that ground.[27]Finally, complaint is made about the judge's approach to the valuation of two items of real property. One is a property in Wembley valued by the judge at £284,803. He did so on the basis of Nationwide Building Society website evidence regarding movement in values of properties with the relevant postcode. The appellant wishes to contend that he should have accepted a lower valuation put forward by the appellant. We see no arguable basis for saying that the judge erred in law in taking the approach that he did.[28]The other property about which complaint is made is in Barbados. There the judge went on the figures derived from a land tax office. Again, we can see no arguable error of law in the judge accepting that method of valuation. Accordingly, leave to appeal is refused on that ground also.[29]The result is that the order made by the judge will be varied to the extent indicated in relation to the first item and will also be varied to deal with the issue about which the parties are agreed, where the order does not reflect the judge's intentions.

LORD JUSTICE TOULSON: It is rightly pointed, and I do apologise, it is what comes from it being at the end of the day, but I have been taking counsels' names off the previous case. That was very foolish of me and I apologise for the discourtesy to each. None was intended. I ask the shorthand writer please to note that counsel for the appellant in this case is Mr Griffiths and counsel for the prosecution is Mr Convey.

[31]MR GRIFFITHS: Your Lordship is very gracious.

LORD JUSTICE TOULSON:

[32]Judge Broderick thinks I referred by a slip of the tongue to £3,000 rather than £300,000. If I have, and the shorthand writer picks it up, please make the correction. If not, I will keep an eye on that and amend it when the transcript comes through for approval.[33]MR CONVEY: My Lord, two matters, one very short and one a little if I may.[34]I think the figure read out by the court for the final figure may have been very marginally in error by my calculation. I make the final figure £2,207,822. I think it was 823.[35]MR JUSTICE GRIFFITH WILLIAMS: I am at fault for that. I had written down the wrong figure as a starting point.

LORD JUSTICE TOULSON: Thank you very much.

[37]MR CONVEY: Yes. My Lord, a slightly longer matter under section 33 of the Criminal Appeal Act. I would invite the court to certify a point of public importance.

LORD JUSTICE TOULSON: Well, I think your best line on this would be to set it out in writing because one would need to know what exactly is the issue being certified -- to be required to be certified, and it is often overlooked that the requirements for certification are not just that there is a point of law of some general importance, because very often counsel are able to say in a criminal case there is a point of some importance, but that this court considers it desirable that it should be heard by the House of Lords and we would need to be persuaded on both grounds. It may be that in the past this court has tended to concentrate on the first and rather overlook the second. But I think you will find that this court in future is going to be looking very carefully at both grounds.

[39]Now, experience generally suggests that these applications are better put on paper when counsel have had an opportunity to think, rather than dealt with on the hoof.[40]MR CONVEY: My Lord, may I say this? I have had the opportunity to draft and not to consider it, and the way your Lordships are dealing with other matters similar next week, I will endeavour to have --

LORD JUSTICE TOULSON: I think we have one more day of confiscation cases. Do we have the pleasure of your company next week?

[42]MR CONVEY: No, my Lord. But I can probably get it down in writing and to the court by tomorrow or this evening. If it is suitable to be considered at that juncture --[43]MR JUSTICE GRIFFITH WILLIAMS: You might make enquire of the Appellate Committee. An application may have been made, or about to be made, in another case.

LORD JUSTICE TOULSON: You may want to find out where Islam has gone to. They probably won't have had a chance to consider the leave application yet because it would only have gone in at the end of the summer term.

[45]MR CONVEY: This point is simply on joint enterprise and expenditure.

LORD JUSTICE TOULSON: I appreciate that, but the reason why you had to go round the houses was because of the problem --

[47]MR CONVEY: Because of the bar on the market value. I will put it in writing.

LORD JUSTICE TOULSON: Yes, put it in writing. Thank you.