Paulet, R. [2009] EWCA Crim 288

[2009] EWCA Crim 288Case No 2008/02215/B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 18 th February 2009
The Strand
London WC2A 2LL
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES(Lord Judge)MR JUSTICE WYN WILLIAMSMR JUSTICE HOLROYDE
Between
REGINACrownDIDIER PAULETDefendant
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
Mr T Owen QC appeared for ApplicantMr S Farrell QC appeared for Crown
JUDGMENT

THE LORD CHIEF JUSTICE:

[1]On 4 June 2007, at the Crown Court at Luton, before His Honour Judge Kay QC, the appellant, Didier Paulet, pleaded guilty to three counts of obtaining a pecuniary advantage by deception (counts 1-3), having a false identity document with intent (count 4), driving while disqualified (count 5), and driving without insurance. On 29 June 2007, His Honour Judge Burke QC sentenced him to concurrent terms of 15 months' imprisonment on counts 1-4, with a consecutive term of two months' imprisonment on count 5. No separate penalty was imposed for driving without insurance. The period of 119 days spent on remand was ordered to count against this sentence. The appellant was disqualified from driving for 18 months and his licence was endorsed. He was recommended for deportation. None of these orders is in issue in the present appeal.[2]On the basis of the counts of obtaining a pecuniary advantage by deception, the appellant was also made subject to a Confiscation Order for £21,949.60, with a sentence of 12 months' imprisonment, consecutive, to be served in default. It is this order which is the subject of the appeal.[3]That appeal will be adjourned today for reasons which will become apparent in a moment. Before adjourning the appeal we checked whether the appellant would be under any consequent disadvantage. None has been drawn to our attention. He is not currently in custody. The sum of money which was made the subject of the order for confiscation would not be available to him to spend. It is safe and secure.[4]The appellant was born in the Ivory Coast. At the material time he was living in the United Kingdom unlawfully. Importantly he had no entitlement to seek or find paid employment here. If they had known of this his employers should not have employed him. That is a consequence of section 8 of the Asylum and Immigration Act 1996. He used false documents to obtain work and deceived them into thinking that he was entitled to work and that they were lawfully entitled to employ him.[5]It is to be noted that there will be cases of this kind where the falsity advanced by an employee is made by an individual with a right to work in this country. It is also clear that there may be occasions when it is not only the employee making the false assertions who is acting unlawfully, but also that his employer may, with full knowledge of his unlawful activity, continue to employ him and therefore be in breach of section 8 of the 1996 Act. In truth the circumstances can arise in an almost infinite variety of circumstances.[6]The circumstances here are that between April 2003 and November 2004 the appellant was employed by First Choice Recruitment. He received a total of nearly £12,000 in gross wages. Between August 2004 and roughly January 2006 he was employed by a cash and carry organisation. To obtain that employment he provided a false National Insurance number. He there earned nearly £40,000 gross in wages. Between January 2006 and his arrest in late February 2007 he worked as a forklift truck driver. He earned nearly £24,000 in gross wages in that employment. In relation to all three employments the appellant submitted a counterfeit French passport, which would have conveyed the impression that he was an EU citizen entitled to work here. In each of these three employments the company in question would not have employed him if they had known that he was not entitled to work here.[7]In January 2007 the DVLA received an application for a provisional driving licence from the appellant. The application was accompanied by the same false French passport he had used to obtain employment. When the falsity of the passport was discovered, the police were informed.[8]On 27 February 2007 the appellant's home address was searched. Banking documents and wage slips were seized. The appellant was arrested at his place of employment. When arrested he admitted that he had driven to work. His car keys were found on him. His car was parked in the staff car park. He held a provisional British driving licence, but was disqualified from driving. It was established that the appellant had three accounts with Barclays Bank and another account with NatWest Bank. The funds in these accounts totalled £21,649.60.[9]When addressing the issue of confiscation Judge Burke accepted that the appellant had paid tax and National Insurance on his earnings, and that the money he had made in his different employments was earned in the ordinary course of work. Accordingly, he decided that it was not necessary to calculate the precise extent of the appellant's net wages. After deductions, the benefit figure was held to be £50,000. An assets figure of £29,949.60 was agreed between counsel and a confiscation order was made for that amount.[10]The appellant refused to sign a consent order that his assets should be paid over in satisfaction of the confiscation order. He was distraught at the possibility of having to hand over the money he had worked for a number of years to earn and to save. He composed his own grounds of appeal. In essence he contended that his wages were properly earned in the course of his employment. There is no doubt about the fact that they were earned in the course of his employment. The issue is whether they were properly earned. It was, he contended, unjust and disproportionate for his savings from his earnings to be made subject to a confiscation order. They were too remote from the criminal offences to which he had pleaded guilty to amount to a benefit from criminal conduct for the purposes of the Proceeds of Crime Act 2002. Alternatively he suggested that if they were incapable in law of constituting such a benefit, the application by the Crown for confiscation constituted an abuse of the process of the court. In essence it was contended that it was oppressive to seek to recover the savings from money which had been paid to him in remuneration for the work he had done.[11]The full court gave leave to appeal against sentence. This was the second occasion when the issue of confiscation of earnings in the context of a misleading representation to find work had arisen in Luton Crown Court. The earlier case is R v Ijaz which was heard by His Honour Judge Breen at Luton Crown Court. Judgment was given on 16 November 2007.[12]Given the decision to adjourn this hearing, it is unnecessary for us to set out the relevant provisions of section 16 of the Theft Act 1968 in its amended form, or indeed the relevant sections of the Proceeds of Crime Act 2002.[13]In his written submissions before us, Mr Tim Owen QC on behalf of the appellant made a number of contributions to the debate. He did not develop them in the course of oral submissions. He had no opportunity to do so because of the course which we have, with the agreement of both sides, taken. Mr Owen would argue that the money earned by the appellant from his employments was too remote from the criminal act of which he was convicted to amount to a benefit from criminal conduct within the meaning of either section 76(4) or section 76(5) of the 2002 Act. The appellant's earnings were pay for work he did. His false pretence in each case merely provided him with the opportunity to offer his services and then to work for his employers. The earnings were not a benefit derived from his criminal conduct. Mr Owen suggested that a distinction should be drawn between a benefit derived by dishonest means, which he identified as the opportunity to be considered for employment, and the actual remuneration paid in consideration of the work actually done. In the alternative, he submitted in his written argument that if the appellant's earnings were capable of constituting a benefit for the purposes of section 76 of the 2002 Act, the application for a confiscation order in circumstances like these constituted an abuse of the process of the court. The contention is that it was plainly and obviously oppressive to seek to recover sums of money paid to a defendant for work properly done as if it were the benefit of criminal conduct.[14]The submission by Mr Farrell QC on behalf of the Crown was equally clear. The appellant's earnings amounted to an obtaining by him of property within the meaning of section 76(4), as well as a pecuniary advantage as defined in section 76(5) and section 76(6) of the 2002 Act. The appellant obtained his wages "as a result of or in connection with" his criminal conduct which constituted the offence. Not only the opportunity to work but the retention of the appellant's employment was based on his false representations which indicated that he was entitled to work.[15]Mr Farrell drew our attention to a decision of this court in R v Carter and Others [2006] EWCA Crim 416, where an appellant who used false identity papers to obtain employment was convicted of obtaining a pecuniary advantage by deception. In the course of confiscation proceedings under the previous legislation (the Criminal Justice Act 1988), it was submitted that his wages did not constitute benefit; the offence was the dishonest obtaining of the opportunity for work. That submission was rejected. Newman J, giving the judgment of the court, observed at paragraph 38:
"It seems to us to be obvious that where you obtain an opportunity to work from an offer of employment being made to you, and the offer has been induced by a false representation that you are entitled to work, the false representation continues thereafter for the benefit of the offender who, permitting the representation to continue, is able to retain employment. Once made, it continues to have effect throughout the employment which has been taken up. At any stage had the representation been corrected, it is plain the employment would have ceased."
[16]The decision of the court in Carter is not as well known as it should be. It finds no mention at all in Archbold. It finds a desultory mention in Blackstone, but is buried away in the vast quantity of pages in that well-known textbook. The decision is not to be found in the Cr App R(S). That being the case, Mr Farrell, and those who instruct him, are to be congratulated for having found the authority and drawn it to the attention not only of the court but of Mr Owen. It is worth underlining in the course of this judgment that that decision ought to be better known. If it were possible for it to be better known, it would be to everyone's advantage.[17]In the light of that decision Mr Owen would accept that his prime submission, so far as this court is concerned, is at an end. In the light of the decision in Carter he would inevitably be faced with insuperable obstacles. Mr Farrell would contend that there were other insuperable obstacles in his way in any event. But for present purposes we need not enter into that debate.[18]In the end, therefore, Mr Owen reserves the right in due course to address the court on the basis that, given all the facts, the confiscation order should not have been made because the Crown was acting oppressively and that in taking the proceedings that it did against the appellant an abuse of process was constituted.[19]The Crown adamantly reject the suggestion of oppression. It is pointed out that the appellant profited substantially from obtaining work in this country when he was not entitled to do so and when his conduct deprived members of the workforce who were entitled to work here of the opportunity of gaining such employment.[20]However, we need not address those submissions. More important is Mr Farrell's acceptance of the principle that there are limited and exceptional cases in which it might be oppressive for the Crown to seek a confiscation order. We need not go through the authorities, but they include cases where the victim of a crime has been voluntarily repaid; where the true benefit received by the offender was minimal in the context of the legislative framework which would provide for a truly disproportionate order; where the confiscation proceedings had not been brought within a reasonable time; and finally, for present purposes, when the proceedings were brought in contradiction of an earlier undertaking to the opposite effect. We would emphasise that the circumstances in which the court might conclude that it would be oppression to seek a confiscation order is not confined to this list or (using different and familiar language) that the category of such cases has not yet been closed. We should not, for example, exclude the possibility on the finding of prosecutorial oppression where an employee entitled to work in this country had been offered employment on the basis of a dishonest application, who had thereafter given every satisfaction to his employers, but who was then subjected to a confiscation order which might have the effect of depriving him of all his earnings long after his criminal activity had played any part whatever in his employment.[21]Subject to the court's power to ensure that confiscation proceedings are taken on the initiative of the court itself, responsibility for bringing confiscation proceedings is vested by statute in the prosecution ~ ultimately the Director of Public Prosecutions.[22]The issue of confiscation proceedings, the circumstances in which they may be oppressive and constitute an abuse of process is one which is becoming increasingly difficult. A number of problems arise with the exercise of this jurisdiction up and down the country. It seems to us (and we canvassed this with counsel when the case was called on) that confusion and difficulty would be reduced if the Director of Public Prosecutions felt able to issue guidance to prosecutors of the policy and factual issues that they should bear in mind when faced with the decision whether confiscation proceedings should be taken, and indeed identifying the kind of circumstances in which such proceedings would normally be appropriate or inappropriate. We believe that such guidance, if he chose to give it, would fall within his powers under section 10 of the Prosecution of Offences Act 1985. If given, we would hope, first, that the guidance would establish consistency of approach by prosecutors throughout the country to this question; and second, the possibility of what on any realistic view would be rank injustice, and orders for confiscation which are utterly disproportionate to the offender's criminal activity, or his benefits from crime, would be avoided. Absent bad faith (a term which we use in the broadest sense) the decision by the prosecutor to take confiscation proceedings would not, in our view, be susceptible to judicial review, but the jurisdiction of the court to deal with any possible abuse of its process would remain undiminished.[23]The abuse of process jurisdiction is one which needs to be exercised with great circumspection. The jurisdiction cannot be converted on a case by case basis into a structure which involves, on proper analysis, something like wholesale undermining of the statutory provisions. It is not easy to conclude that it is an abuse of process for those responsible for enforcing legislation to see that it is indeed properly enforced. That warning is important and we also believe that the risks of rank injustice makes it the more compelling for the Director at least to give close attention to our request that guidance should now be issued.[24]So far as this case is concerned, it will be adjourned. We would ask the Director to give such urgent attention to the problem as he is able. Our intention (this is not a direction) is that the appeal of Paulet should be listed as soon as, or within a very short time of the issue of any policy or an indication by the Director that he is not minded to exercise his powers under section 10. If at that stage there are other cases in the pipeline to which the broad considerations to which this judgment may be said to apply have arisen, we will have them all listed at the same time so that we can deal with the matter compendiously.[25]MR FARRELL: Thank you very much, my Lord. As I already said, there was to be a policy issued post-10 March, but obviously because of what has happened today, I think we can bring that forward and it will be done as soon as possible -- I hope within the next week --

THE LORD CHIEF JUSTICE: No, do not commit those behind you. They have plenty to think about. As soon as possible is what we would like, please.

[27]MR FARRELL: I would also like to make it clear that any concessions we have made were in respect of the particular benefit, rather than lifestyle. I have had a note from behind that those concessions related to a particular benefit. I want to make that clear.

THE LORD CHIEF JUSTICE: Fine. I do not think that affects our judgment, Mr Farrell.

[29]MR FARRELL: I do not think it does, but I have been asked to say it.

THE LORD CHIEF JUSTICE: I am not sure you have made many concessions. It would be helpful if either you, or those behind you, could let us know as soon as possible the Director's decision. I know you told us, but we need formal acknowledgement that he will issue guidance, if he will, and, say, within a few days before it is issued, that it is going to be issued and then we can start the wheels turning behind the scenes here to bring the case on. At the moment, whether we would be able to have the case listed in March I think remains open to question. That we will have to discuss with the Registrar of Criminal Appeals.

[31]MR FARRELL: Yes

THE LORD CHIEF JUSTICE: Thank you for your help, and thank you for yours, Mr Owen.

Cited in 1 later judgment