Chahal & Anor, R. v [2014] EWCA Crim 101

[2014] EWCA Crim 101Case No 201300050C1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
HHJ MAYO
T20077898
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/02/2014
Before
LORD JUSTICE DAVIS MR JUSTICE BLAKEHHJ CUTLER – RECORDER OF WINCHESTER(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
CROWNAppellant(1) BHABDEEP SINGH CHAHALRespondents(2) CHARANJIT SINGH CHAHALRespondentCHARANJIT SINGH CHAHALAppellantCROWNRespondent
MR A MUNDAY QC and MR P SHARKEY (instructed by the Crown Prosecution Service) for Crown.MR R TEDD QC and MR H BLAXLAND QC (instructed by AA Mirsons Solicitors Limited) for Respondents in the first appeal.MR R TEDD QC and MR R FISHER (instructed by Frisby & Co Solicitors) for theAppellant in the second appeal.Hearing Hearing date: 23 January 2014
Judgment

Introduction

[1]These appeals raise an issue of interpretation of s.8 of the Proceeds of Crime Act 2002 (“the 2002 Act”). The context is as follows. The two respondents were the subject of confiscation orders made in the Crown Court at Southwark on 4 August 2010 which, among other things, by their terms determined their benefit from general criminal conduct in a certain amount. Subsequently, as a result of their convictions in further and separate criminal proceedings in the Crown Court at Birmingham, each faced a further application for a confiscation order requiring a determination of their benefit from general criminal conduct. The question arising at the second hearing was whether s.8 of the 2002 Act confined the assessment of the amount of the benefit from general criminal conduct to the period after the date of the first confiscation orders.[2]HHJ Mayo, sitting in the second set of confiscation proceedings in the Birmingham Crown Court, ruled on 21 November 2012 that s.8 did have such effect. In the light of that ruling, the determination of benefit from general criminal conduct and the resulting confiscation orders were made in relatively modest amounts in relation to the respective respondents: whereas the Crown had sought to argue that the true benefit (in the context of a massive carousel VAT fraud) had been very many millions of pounds.[3]The principal question is whether the judge was right in his conclusion as to the meaning and effect of the section. The Crown says that he was wrong. It appeals pursuant to the provisions of s.31 of the 2002 Act.

Background facts

[4]Each respondent, as will have been gathered, is a convicted fraudster. Each has engaged in sustained and major criminality.[5]The first respondent (Bhabdeep Singh Chahal) was, as a result of an investigation known as Operation Sunbird, initially arrested and interviewed on 7 September 2004. He was charged on 29 March 2006. The charges were conspiracy to defraud, conspiracy to launder money and conspiracy to use false instruments. The second respondent (Charanjit Singh Chahal) was charged with the like counts on 4 May 2006. Others were also charged.[6]The facts relating to these proceedings do not, for present purposes, need setting out in any great detail. They involved what in essence was a simple and bare-faced fraud, exploiting then existing defective banking procedures.[7]In short, the position was this. After the acquisition of Natwest Bank by RBS Bank, cheques paid into a Natwest account under a particular facility called “Bankline” were shown as cleared on the third working day after receipt, whether in fact cleared or not: thereby enabling sums to be paid away online on that basis. This anomaly was exploited by the accused. A legitimate company called Charlotte Brown Limited was acquired by two men. The company’s books and cheque books were taken away. Nine cheques were then between 28 April and 1 May 2004 written in favour of a company called Brittaniacity UK Limited (which used the Bankline facility) and presented to Natwest, in sums exceeding £20 million: the explanation being that such payments were in respect of the acquisition of mobile phones. Just over £15,255,000 was then swiftly paid out by Brittaniacity on receipt of six of such cheques, once shown as cleared.[8]Brittaniacity was itself held out as a buyer of mobile phones from, among others, a company called Talking Digital Limited. In April and May 2004 Brittaniacity paid a total of £5,209,068 to Talking Digital. That company in turn paid on £4,928,537 to another company called IT Players Limited, leaving Talking Digital with £280,531, of which £250,000 was then paid to Chahal & Sons Limited (controlled by the respondents). False documents were created to simulate trades in large quantities of mobile phones between, among others, Brittaniacity, Talking Digital and IT Players. Each of the respondents was a signatory to the Talking Digital account.[9]Of all the money so paid out from the Brittaniacity account, much of it – some £13.5 million – ended up in an account held in a (purported) third party corporate name at a bank in Riga, Latvia. An attempt was then made to transfer it to another account in Dubai. By this time, however, Natwest had woken up to what was going on and had obtained a freezing order preventing such transfer. In addition the remaining three cheques, which had also been presented, were not permitted to clear.[10]Although the purported ultimate purchaser of the mobile phones was Charlotte Browne Limited, the reality was – as was the Crown case – that the mobile phones never existed.[11]There was a trial at Southwark Crown Court before HHJ Pitts and a jury. In due course, each respondent (with others) was on 7 August 2008 convicted on counts of money laundering and conspiracy to use false instruments. Bhabdeep Singh Chahal was sentenced to four years three months’ imprisonment and Charanjit Singh Chahal to two years nine months’ imprisonment. The Crown sought confiscation orders against both.[12]For much of the relevant time, other enquiries had also been pursued with regard to the activities of the respondents and Chahal & Sons Limited, which was registered for VAT purposes, in a further (and separate) investigation known as Operation Duma. A restraint order was made on 19 October 2005. Each respondent, along with others, was in due course charged with conspiracy to cheat the Revenue on 8 August 2007. The period of alleged cheat, as particularised in the indictment, was 1 January 2005 to 11 November 2005.[13]Again the facts relating to these further proceedings do not need setting out in any detail here. This was, on the Crown case, a carousel or “missing trader” fraud – the purported product (again) being mobile phones. Companies which featured prominently were – along with other companies – Chahal & Sons Limited, Talking Digital Limited and another company, also connected with the respondents, called Anything and Everything Limited. The respondents were said to be involved in the fraud as principals. The prosecution case was that the purported trading totalled over £181 million. The loss to the Revenue was said to be not less than £22 million.[14]The proceedings in the Birmingham Crown Court were drawn out. For various reasons, Bhabdeep Singh Chahal was tried separately from Charanjit Singh Chahal. The latter was convicted after trial on 24 June 2010. The former was convicted after trial on 6 April 2011. Both were sentenced to terms of 14 years’ imprisonment (in the case of Charanjit Singh Chahal after variation on appeal) and disqualified from acting as company directors. The Crown again sought confiscation orders against both.

The confiscation proceedings

[15]We will come on to the statutory provisions. Suffice it to say at this stage that it was and is common ground, with regard to each set of confiscation proceedings, that these were criminal lifestyle cases and that each respondent was to be taken as benefiting from his general criminal conduct. This was so with regard to the Sunbird proceedings because one of the offences was specified in Schedule 2: see s.75(2)(a) and paragraph 2 of Schedule 2 of the 2002 Act. This was so with regard to the Duma proceedings because the offence was committed over a period of at least six months and each respondent had benefited from the conduct constituting the offence: see s.75(2)(c) of the 2002 Act.[16]The prosecution on 18 September 2009 had put in detailed s.16 statements in the Sunbird confiscation proceedings in relation to the respondents, in essentially the same form save as to certain figures.[17]Each statement at the outset indicated that it was believed that the respective defendants had a criminal lifestyle (as defined in the 2002 Act); and that it was appropriate to proceed under s.6(4) and to make the assumptions under s.10 of the 2002 Act in determining benefit. In paragraph 9 of each statement, headed General Criminal Conduct – Assumptions, there was again express reference to general criminal conduct and the statutory assumptions. It was pointed out that each defendant had been convicted of a Schedule 2 offence (money laundering) and that the court could therefore determine that each defendant had a criminal lifestyle, with the assumptions applying. That was plainly correct.[18]In the result, the s.16 statements proffered in both cases an assessment of the summary of benefit in an amount, ignoring pence, of £280,531, being the sum retained by Talking Digital. The available amount was then assessed in the case of Bhabdeep Singh Chahal in the statement relating to him as £54,398, and in the case of Charanjit Singh Chahal in the statement relating to him as £80,179.[19]The respondents put in s.17 statements in response, although we were not shown those. (It is to be remembered that, in general terms, the burden of proving benefit is on the prosecution; albeit the burden of showing that, in a criminal lifestyle case, the assumptions do not apply is on the defence.)[20]There was a hearing in the Southwark Crown Court before HHJ Pitts, the trial judge in the Sunbird proceedings, on 4 August 2010 in order to determine the confiscation orders to be made. (This, it may be noted, was after Charanjit Singh Chahal had been convicted in the Birmingham Crown Court in the Duma proceedings and when Bhabdeep Singh Chahal’s trial was pending in those proceedings.) We have not seen a transcript of that hearing or of the ruling made by the judge. None of counsel appearing before us was involved in those proceedings. We were, however, informed by Mr Tedd QC (appearing, with Mr Fisher, on behalf of Charanjit Singh Chahal) that his instructions were that the hearing was short, with no oral evidence given, and that the position had been – after lengthy prior discussion – in effect agreed by the parties before the proposals were put to the judge, who gave no detailed or reasoned judgment.[21]Confiscation orders were thus made by Judge Pitts on that date. Bhabdeep Singh Chahal was ordered to pay (ignoring pence) £22,685 and Charanjit Singh Chahal was ordered to pay £34,150. In the case of each, the decision of the court about benefit was specifically stated, on the standard form of order, as being that the benefit was “the result of general criminal conduct, the court having decided that the defendant has a criminal lifestyle”. The box on the standard form was completed so as to record that. The immediately following box on the standard form relating to “particular criminal conduct, the court having decided that the defendant does not have a criminal lifestyle”, was left empty. In the case of each respondent the value of the benefit was (again ignoring pence) recorded as £140,265. It is plain enough that the court had been invited by the parties, and had agreed, to apportion between the two respondents the benefit indicated in the s.16 statements of £280,531 (representing the sum received by Talking Digital).[22]It was by reference to those two confiscation orders that the respondents were subsequently – and successfully – to submit to Judge Mayo in the Duma confiscation proceedings that the amount of benefit arising from general criminal conduct for the purpose of the subsequent confiscation orders was delimited.

The statutory provisions

[23]This brings us to the statutory provisions contained in the 2002 Act which are said to have that consequence.[24]As is all too familiar, s.6 prescribes certain matters and procedures with regard to making a confiscation order. In particular, for present purposes, subsections (4) and (5) provide, where the court is proceeding, as follows:
“(4) The court must proceed as follows— (a) it must decide whether the defendant has a criminal lifestyle; (b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct; (c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct. (5) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must— (a) decide the recoverable amount, and make an order (a confiscation order) requiring him to pay that amount.” (a) it must decide whether the defendant has a criminal lifestyle; (b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct; (c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct. (a) decide the recoverable amount, and make an order (a confiscation order) requiring him to pay that amount.”
The language (“must”) is mandatory. It is also to be noted that an assessment of benefit from particular criminal conduct is only open to a court where the court has decided that a defendant does not have a criminal lifestyle.[25]Section 7 relates to the recoverable amount. Section 8 – the key section for present purposes – relates to a defendant’s benefit. It reads as follows: “8 Defendant’s benefit(1) If the court is proceeding under section 6 this section applies for the purpose of— (a) deciding whether the defendant has benefited from conduct, and (b) deciding his benefit from the conduct.(2) The court must— (a) take account of conduct occurring up to the time it makes its decision; (b) take account of property obtained up to that time.(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.(5) If the conduct concerned is general criminal conduct the court must deduct the aggregate of the following amounts— (a) the amount ordered to be paid under each confiscation order previously made against the defendant; (b) the amount ordered to be paid under each confiscation order previously made against him under any of the provisions listed in subsection (7).(6) But subsection (5) does not apply to an amount which has been taken into account for the purposes of a deduction under that subsection on any earlier occasion.(7) These are the provisions— (a) the Drug Trafficking Offences Act 1986 (c. 32); (b) Part 1 of the Criminal Justice (Scotland) Act 1987 (c. 41); (c) Part 6 of the Criminal Justice Act 1988 (c. 33); (d) the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)); (e) Part 1 of the Drug Trafficking Act 1994 (c. 37); (f) Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43); (g) the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)); (h) Part 3 or 4 of this Act.(8) 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.” (a) deciding whether the defendant has benefited from conduct, and (b) deciding his benefit from the conduct. (a) take account of conduct occurring up to the time it makes its decision; (b) take account of property obtained up to that time. (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. (a) the amount ordered to be paid under each confiscation order previously made against the defendant; (b) the amount ordered to be paid under each confiscation order previously made against him under any of the provisions listed in subsection (7). (a) the Drug Trafficking Offences Act 1986 (c. 32); (b) Part 1 of the Criminal Justice (Scotland) Act 1987 (c. 41); (c) Part 6 of the Criminal Justice Act 1988 (c. 33); (d) the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)); (e) Part 1 of the Drug Trafficking Act 1994 (c. 37); (f) Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43); (g) the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)); (h) Part 3 or 4 of this Act.[26]Section 9 relates to the available amount. Section 10 relates to the assumptions to be made in a criminal lifestyle case:
“10 Assumptions to be made in case of criminal lifestyle (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. (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. (6) But the court must not make a required assumption in relation to particular property or expenditure if— (a) the assumption is shown to be incorrect, or (b) there would be a serious risk of injustice if the assumption were made. (7) If the court does not make one or more of the required assumptions it must state its reasons. (8) The relevant day is the first day of the period of six years ending with— (a) the day when proceedings for the offence concerned were started against the defendant, or (b) if there are two or more offences and proceedings for them were started on different days, the earliest of those days. (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; (b) the second assumption does not apply to any property which was held by him on or before the relevant day. (10) The date of conviction is— (a) the date on which the defendant was convicted of the offence concerned, or (b) if there are two or more offences and the convictions were on different dates, the date of the latest.”
The overall structure of s.10 thus is that, where a defendant has a criminal lifestyle, the stated four assumptions must be made. But a required assumption is not to be made “in relation to particular property or expenditure” in the circumstances set out in s.10(6). As to the relevant day, in the case of the Sunbird proceedings the relevant days for the purposes of the assumptions would have been 30 March 2000 and 5 May 2000 respectively. Further, in the absence of any prior confiscation order, the relevant day in the Duma proceedings would prospectively have been 9 August 2001 in respect of each respondent. (a) deciding whether he has benefited from his general criminal conduct, and (b) deciding his benefit from the conduct. (a) as a result of his general criminal conduct, and (b) at the earliest time he appears to have held it. (a) as a result of his general criminal conduct, and (b) at the earliest time he appears to have held it. (a) the assumption is shown to be incorrect, or (b) there would be a serious risk of injustice if the assumption were made. (a) the day when proceedings for the offence concerned were started against the defendant, or (b) if there are two or more offences and proceedings for them were started on different days, the earliest of those days. (a) the relevant day is the day when the defendant’s benefit was calculated for the purposes of the last such confiscation order; (b) the second assumption does not apply to any property which was held by him on or before the relevant day. (a) the date on which the defendant was convicted of the offence concerned, or (b) if there are two or more offences and the convictions were on different dates, the date of the latest.”[27]Section 75 contains provisions relating to the interpretation of “criminal lifestyle”. In the relevant respects, it provides as follows:
“75 Criminal lifestyle (1) A defendant has a criminal lifestyle if (and only if) the following condition is satisfied. (2) The condition is that the offence (or any of the offences) concerned satisfies any of these tests— (a) it is specified in Schedule 2; (b) it constitutes conduct forming part of a course of criminal activity; (c) it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.”
Section 76 then indicates the distinction between general criminal conduct and particular criminal conduct. By s.76(2), general criminal conduct of a defendant is all his criminal conduct. (a) it is specified in Schedule 2; (b) it constitutes conduct forming part of a course of criminal activity; (c) it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.”[28]The main purpose behind the relevant provisions contained in s.8 (in particular, for present purposes, s.8(3) and (4)) and s.10 (in particular, for present purposes, s.10(9)) is self-evident. It is, in short, to prevent a defendant being faced, in general criminal conduct cases, with the prospect of, as it were, double counting. All parties before us in this regard asked us to consider the Explanatory Notes to the 2002 Act. Amongst other things, the Notes explain that s.8(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”. It is not normally legitimate to rely on Explanatory Notes as a guide to the interpretation of a statute (the position perhaps may be different with regard to statutory instruments); but it may be legitimate to do so for the purposes of identifying the mischief at which a statutory provision is aimed. But in truth the purpose is clear enough even without reference to any Explanatory Notes.[29]Section 21 of the 2002 Act is also of potential importance for present purposes. That, in summary, empowers the court to reconsider the benefit determined by a confiscation order previously made, on application made to the Crown Court by the prosecution within six years of the relevant conviction, where there is evidence which was not available to the prosecution at the relevant time.

The proceedings before Judge Mayo

[30]Against that statutory context, the argument of the respondents was – and remains – straightforward. By virtue of s.8(3) and (4) the benefit of each respondent from general criminal conduct for the purpose of the Duma confiscation proceedings was required to be assessed by reference to that found by Judge Pitts by the two confiscation orders of 4 August 2010 made in the Sunbird confiscation proceedings. Further, by virtue of s.10(8) and (9), the relevant day for the purpose of the assumptions was required to be the date of such orders – viz. 4 August 2010. And it was apparently common ground, on the facts of these two cases, that no benefit had accrued to either respondent after such date. Thus, it was said, the consequence was that the respondents’ “slates were wiped clean” at the time those orders were made, so far as concerned benefit from general criminal conduct.[31]Judge Mayo accepted that argument. In an impressively thorough and carefully reasoned ruling, he set out the background facts and relevant statutory provisions. He correctly held that the lifestyle provisions applied in the Duma proceedings, by reason of s.75(2)(c). He went on to hold that the orders of Judge Pitts operated to bring s.8(4) and s.10(9) into play. He pointed out that Judge Pitts had been, as had been he (Judge Mayo), required by s.6 to decide whether the respondents had a criminal lifestyle and had been required to decide whether they had benefited from general criminal conduct. He concluded that any calculation that he was required to make “must exclude any benefit derived from before 4 August 2010”.[32]The consequence for the Duma confiscation proceedings (in circumstances where the indictment period antedated 4 August 2010) was that the benefit from general criminal conduct thus was effectively limited to the amount of benefit found in the Sunbird proceedings – viz. £140,265 in each case. After then making the deductions required to be made under s.8(5) the resulting benefit figures were found by Judge Mayo to be £117,580 and £106,115 respectively. As each respondent had at that time available assets in excess of such amounts, confiscation orders in those amounts were made accordingly.[33]As a matter of merits, it has to be said that this is a melancholy result. The scale of the carousel fraud in Duma was massive. The benefit for those involved could reasonably be taken as likely to run into millions. Thus so far as these respondents are concerned they will not have been required to disgorge anything like the proceeds of their serious criminality.

Submissions and disposition

[34]Mr Munday QC, appearing with Mr Sharkey for the Crown, argued that the judge was in error. His arguments were on two, linked, bases. First, he submitted that the confiscation orders of Judge Pitts of 4 August 2010 in the Sunbird proceedings had not, in fact and/or as a matter of interpretation, made a determination of benefit from general criminal conduct: rather, they in reality had made a determination of benefit from particular criminal conduct. Accordingly, neither s.8(4) nor s.10(9) had, he said, any application. He went on to submit that on the true interpretation of s.8(3) and (4) the court in the Duma proceedings was entitled to assess whether the orders of 4 August 2010 had in reality determined benefit from particular criminal conduct, as opposed to general criminal conduct. He sought to support that submission by contrasting the language used in s.8(3) with that used in s.8(8) – notwithstanding that s.8(8) applies only to confiscation orders made under the statutory provisions listed in s.8(7) – and submitted that, in respect of s.8(3) at least, Parliament contemplated that the later court might conduct an inquiry into whether the previous order really did relate to general criminal conduct and benefit from such conduct.[35]In our view it is impossible to accept these submissions.[36]The starting point has to be that each order of 4 August 2010 in the Sunbird proceedings expressly stated that it was a determination of benefit from general criminal conduct. It is not surprising that each order should be so framed as the court had been positively required, under the provisions of the 2002 Act – in particular s.6 and s.75 – as applied to these two sets of confiscation proceedings, to determine the benefit from general criminal conduct. (Indeed, the s.16 statements had been propounded in such terms.) The consequence thus is that, in law, those orders had precisely that effect. The matter was then res judicata. No subsequent court of co- ordinate jurisdiction would be empowered to reopen those orders in order to assess the merits of such orders. In the absence of any appeal to the Court of Appeal (Criminal Division) – and there never has been such an appeal (Mr Tedd suggested there could not have been, as the orders were in effect agreed) – or application by the Crown to set aside or to vary under s.21 – and there never has been such an application – those orders are conclusive as to benefit from general criminal conduct as at 4 August 2010.[37]Mr Munday nevertheless maintained that the orders of 4 August 2010 were simply wrong. This was a precursor to his argument that s.8 should be construed so as to permit the second court to look at the original confiscation proceedings to see if the court making the original confiscation orders had properly engaged with considering benefit from general criminal conduct: and here, he said, the first court had not. We are perfectly prepared to assume, for present purposes, that the original orders indeed may have been wrong. Certainly it is an oddity (to put it mildly) that, after correctly invoking the criminal lifestyle and general criminal conduct provisions and the statutory assumptions, the s.16 statements of the prosecution proffered a benefit figure simply equating to the profit which the respondents, via Talking Digital, had made in the Sunbird matter: a figure then adopted without more ado in the confiscation orders. It is also an oddity (again, to put it mildly) that even that benefit was then apportioned equally between the two respondents: which appears contrary to what was decided by the House of Lords in May [2008] 1 AC 1045, [2008] UKHL 28.[38]But all this is, in our view, irrelevant. Even if the orders were erroneous, they stand unless lawfully varied or set aside. They were not, and are not, nullities. As Lord Scarman said in Cain [1985] 1 AC 46:
“An order of the Crown Court, once made, may be in excess of its statutory power or otherwise irregular. But it is not a nullity… The order of the Crown Court stands unless and until set aside by the court itself upon application or, if appeal lies, by the appellate tribunal to which the appeal is taken.”
[39]We appreciate that, as pointed out in Telli [2008] 2 CAR(S) 48, [2007] EWCA Civ 1385, a court when making a confiscation order may not be required to give effect to consent between the parties. That said, in practice many confiscation orders are agreed, and properly so. In the present case, both sides had put in detailed statements and the Southwark Crown Court was empowered to act on them and to make the orders that it did make in the Sunbird confiscation proceedings, including the decision as to benefit from general criminal conduct. Any failure by the court to give reasons, moreover, cannot affect that consequence.[40]There is no statutory lacuna, notwithstanding Mr Munday’s hints to the contrary, arising from this approach. For example, in an appropriate case, an appeal will be available to the prosecution under s.31 if a confiscation order is wrong. In an appropriate case, an application to reconsider the benefit may be capable of being made by the prosecution under s.21. Further, it may be that in an appropriate case civil proceedings can be brought against defendants. That such steps may not have been open to be taken, or were not taken, in the particular circumstances of the present cases does not detract from such considerations in assessing the true meaning of s.8.[41]We were reminded of the general approach to the interpretation of the 2002 Act as indicated in paragraphs 2 and 8 of the majority judgment of the Supreme Court in Waya [2013] 1 AC 294, [2012] UKSC 51, in a passage which all the Supreme Court Justices agreed. We need not repeat those here.[42]There is nothing, however, in the actual wording of s.8, as a matter of interpretation, to justify the approach urged by Mr Munday. The position here is plain. Section 8(3) and (4) require a subsequent court to accept and act on a prior court order in its determination of benefit from general criminal conduct. That is made explicit by the reference, in s.8(3)(c), to benefit “for the purposes of that order”: replicated by the reference in s.8(4) to the benefit “found at the time the last confiscation order mentioned in subsection (3)(c) was made against him”. It also accords with the provisions of s.8(5). Given the evident purpose of the provisions, that makes entire sense. There can also be no other possible purposive argument available to distort the meaning away from the literal meaning conveyed by the language used. Indeed, it could be invidious – as well as impracticable – for a subsequent judge of co-ordinate jurisdiction to seek to assess the merits of a prior judicial determination of benefit from general conduct. In short, therefore, the words of s.8 mean what they say: and the second judge is not empowered to go behind the prior determination of the first judge as to benefit from general criminal conduct. That then also feeds into the operation of s.10(9).[43]If any authority be needed to support the above conclusions, then it can be found in the decision of a constitution of this court in the case of Barnett [2011] EWCA Crim 2936 (being a case where the earlier order was in fact made under legislation preceding the 2002 Act and where s.8(8) applied). The respondents did not submit to us that that decision bound us to reach a conclusion in their favour: although, on one reading of that decision, they might have been in a position so to submit. Suffice it to say that the approach adopted by the court in that case as to the application of s.8 and 10(9) – on facts in some ways analogous to the present case before us – is entirely consistent with the approach we take on these appeals.

Other matters

[44]There was also before us an appeal on the part of Charanjit Singh Chahal from a further order in the Crown Court of 28 January 2013, refusing to sanction a variation of the prior restraint order of 19 October 2005 made against him. The variation had been sought to permit payment of the Sunbird and Duma confiscation orders. Initially, the Crown had been minded to oppose that appeal. But, on consideration of the further detailed written arguments submitted on behalf of Charanjit Singh Chahal on this point, the Crown now accepts that such variation should have been permitted and no longer opposes his appeal on that point. In the circumstances of this case, we agree with that. The parties have provided to us a draft order in that respect: and the minute of such an order, in terms to be finalised and signed by counsel, is to be lodged on the handing down of this judgment.

Conclusion

[45]Accordingly we dismiss the appeals of the Crown. The judge reached the right conclusion for the right reasons and we endorse his ruling.[46]As we have indicated, such an outcome can hardly appeal to a sense of the merits: in the sense that the respondents will most probably not have had to disgorge anything like the true proceeds of their serious criminality. But that outcome is not attributable to a deficiency in the statutory provisions: it is attributable to the (unwise) decision of the prosecution to elect to apply to proceed in the Sunbird confiscation proceedings and then, having done so, to proceed to a conclusion of those confiscation proceedings and to agree the confiscation orders in the terms made: all prior to the conclusion of the Duma proceedings. Quite why that choice was made without, for instance, any attempt to seek to defer (for good reason) such matters until the outcome of the Duma proceedings was never really explained to us. Mr Munday suggested that it may have been by reason of one prosecutorial arm not being alert to what another prosecutorial arm was doing. Maybe that is so. Maybe the potential implications of s.8 had not been appreciated. But it still remains something of a puzzle.[47]At all events, perhaps lessons can be learned from this case as to how not – from the prosecution point of view – to go about things in such a situation. Be that as it may, it would be entirely wrong and unprincipled for this court to adopt an interpretation of the orders of 4 August 2010 and of s.8 of the 2002 Act, with significant potential consequences for other cases, purely in order to reach a result which might accord with one view of the merits of this particular case. The language of s.8 is, we consider, clear in these respects. The underpinning purpose of s.8 is also clear in these respects. It is the duty of the courts to give effect to the statutory language and statutory purpose. We do not think Mr Blaxland QC, on behalf of Bhabdeep Singh Chahal, overstated the position by that much when he submitted that the Crown’s argument, in his words, drove a coach and horses through the statutory provisions.