Halliday v R [2014] EWCA Crim 620

Case No 201003424 B5

[2014] EWCA Crim 620

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM CROWN COURT STAFFORD

His Honour Judge Thomas

S20070225

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 04/04/2014

Before

LORD JUSTICE McCOMBE

MR JUSTICE COULSON

THE RECORDER OF REDBRIDGE (His Honour Judge Radford)

(sitting as a Judge of the Court of Appeal (Criminal Division))

Between

REBECCA ELIZABETH HALLIDAYAppellant

REGINARespondent

Mr I Krolick (instructed by Irwin Mitchell (Sheffield) Llp) for Appellant

Mr J Hall (instructed by Crown Prosecution Service) for Respondent

Hearing Hearing dates: 28th and 29th March 2014

Judgment

Lord Justice McCombe:

[1]At the conclusion of the hearing of this appeal on 28 March 2014 we informed the parties that the appeal would be allowed for reasons to be given in a judgment that would be handed down. We now give that judgment.

[2]On 6 August 2007 in the South East Staffordshire Magistrates Court the appellant pleaded guilty to five charges of fraud contrary to s.35 of the Tax Credits Act 2002 and was committed to the Crown Court for sentence. On 20 December 2007 in the Crown Court at Stafford she was sentenced by HHJ Tonking to 8 months imprisonment, suspended for two years, in respect of two of the charges so committed. No separate penalty was imposed in respect of the other charges.

[3]On 7 January 2009 in the same Crown Court, before Mr Recorder Thomas (as we understand he then was), a confiscation order was made against the appellant in the sum of £53,749.41 (later amended to £53,703.41) to be paid within 6 months with a term of 18 months imprisonment, to be served consecutively to the other sentence, in default of payment. The sum was ordered to be paid within 6 months. We are told that the required sum under that order has now been paid. It was accepted that £14,610 had been obtained by the specific offences committed. It is contended for the appellant that she was, therefore, wrongly ordered to pay the balance of £39,093.41. She now appeals against the confiscation order by leave of the Full Court granted on 6 April 2011.

[4]It is not necessary to say anything about the facts underlying the tax credit offences. What is in issue before us is the confiscation order alone.

[5]That order assessed the value of the benefit, obtained by the appellant from criminal conduct, at £473,269, with the available amount to be realised (under the order as amended) being £53,703.41.

[6]At the confiscation hearing the Crown was contending that the total benefit accruing to the appellant from criminal conduct was £1,147,807.90. The appellant by contrast contended that the benefit was limited to the sums arising from the specific tax credit offences alone, then assessed at £13,189.66 (or by the Crown at £14,650).

[7]As the learned Recorder observed the principal issue before the Crown Court was as to the effect on the benefit obtained by the appellant in the acquisition (with the assistance of a mortgage loan) on 11 June 2004 by herself and her husband/partner, Mr Ian Coppin, of a property known as “The Sanctuary” at Newchurch, Hoar Cross, near Burton-on-Trent in Staffordshire, and its subsequent re-mortgage in 2006. It is a property in which they still reside. The property was purchased for £580,000, with a capital sum of about £160,000 and an interest-only mortgage advance of £420,000 from the Nationwide Building Society. In June 2006, the Nationwide mortgage was redeemed by a further mortgage advance of about the same sum from the Halifax Building Society. At all times the lenders were fully secured and the instalments were paid as and when required. The treatment of that acquisition and of the mortgage advances was the chief battle ground at the hearing before Mr Recorder Thomas.

[8]The Recorder set out (uncontroversially) the law as it was taken to apply before him. He observed, of course correctly, that the starting point was section 6 of the Proceeds of Crime Act 2002. By subsection (4) of that section, the court had to determine whether the appellant had a “criminal lifestyle” and, if so, whether she had benefited from her “general criminal conduct”. There was no argument before the Recorder on this point. It was accepted at the hearing that the appellant had a “criminal lifestyle” by virtue of section 75 of the Act, because, by application of subsections (2)(b), (3)(a) and (4), she had been convicted in the proceedings of three or more offences, from which she had benefited, and the benefit obtained had exceeded £5,000. As the judge said, there had been no particular argument about that aspect of the matter before him. (At one stage of these appeal proceedings it was contended for the appellant that the judge had wrongly applied s.75(4) to the facts of this case. However, that point was abandoned before a constitution of this court, presided over by me, at a hearing on 31 October 2013, and that is confirmed by the appellant’s consolidated grounds of appeal dated 27 December 2013.)

[9]Next, the Crown Court had to move to section 10 of the Act, applying certain assumptions to cases in which a criminal lifestyle is established, for the purposes of deciding whether the appellant had benefited from her general criminal conduct and in deciding what that benefit was. In reliance upon those assumptions, the Crown contended that, in addition to the fraudulently obtained tax credits, the appellant had benefited by an increase in the value of the property previously owned by herself and Mr Coppin, before acquiring “The Sanctuary” and by obtaining the two mortgage advances from the Nationwide and the Halifax.

[10]For reasons that it is not necessary to explore further, the judge rejected as part of the alleged benefit the increase in value of the former home. The crucial remaining matter before the judge, and the only live matter before us, was/is the proper treatment of the two mortgage advances.

[11]The prosecutor’s statement, made under section 16 of the Act and dated 8 August 2008, with its annex of documents of some 132 pages, set out the Crown’s case that, in respect of each of the mortgages, the appellant had fraudulently misstated her income.

[12]On the copy application form relating to the Nationwide loan, a figure which might have been taken as the appellant’s income was stated, somewhat illegibly, as either “35,000” or “85,000”, without any “£” sign. (In the prosecutor’s statement that figure was taken to be referring to an income of £35,000: see paragraph 11.3.) We hesitate in describing the figure as actually being an income figure as it appears in a box on the form entitled “Year”. . On the appeal, the figure has largely been taken as “85,000”. The application form had been signed as correct by both applicants.

[13]In respect of the Halifax loan, the Crown produced computer screen shots from the bank stating the appellant’s income at £45,000, although (in contrast to the Nationwide loan) no signed application form was produced which expressly referred to this or any other figure for the appellant’s income . There was merely a document, signed by both applicants, stating that information provided had been correct. There was no dispute but that the statements of income for the appellant in the screen shots were inaccurate.

[14]As to the Nationwide form and the Halifax documents, the learned judge said this in his judgment, “The issue therefore is one of has she benefited from her general criminal conduct? In respect of that matter, there is an element of disagreement. On the one hand, the prosecution say, she has benefited from her general criminal conduct, but the defence say, that she has not benefited from that because although she has made misrepresentations in respect of her mortgage and re-mortgage application, those do not in effect amount to criminal conduct, and therefore no benefit could flow from that from the general criminal conduct. It is of course conceded that that does not apply to the tax credits. It only, it is argued, applies to any suggestion of benefit flowing from the two property transactions, the mortgage and the re-mortgage. It is also conceded that when that matter is being considered, that is criminal diffuse, the Court is not confined simply to considering whether there had been convictions for that purpose. And it is for the court, it seems to me, to view conduct in all the circumstances, to see whether benefit – she benefited from general criminal conduct, and not, as I said, confined to considering mere convictions. The prosecution case is of course that she did. They rely on the first mortgage application in 2004, which I’ve detailed, and they rely on the re-mortgage in 2006, and consequently on that for the transfer of the property. So that comprises the three elements of benefit that I’ve mentioned before excluding, of course, the tax credits. The defence say that this is not so because yes, they concede that misrepresentations were made in both forms, and misrepresentations as to the level of income. But they say there is no evidence that those misrepresentations were in fact responsible or played a part in the granting of the mortgage or the re-mortgage. And further, they say, that simply because one is dishonest, does not mean one is criminal.”

[15]Thus, for the moment working upon the transcript of the judge’s judgment alone, it was accepted in the Crown Court that misrepresentations as to income had been made in both mortgage applications which were assumed to be dishonest. As the judgment records, however, the argument advanced for the appellant was that, while there may have been dishonesty, there had not been any “criminality”: see p.7A -F. Mr Green of Counsel, then appearing for the appellant is recorded as arguing that a number of (what he called) “badges” of criminal conduct were absent: there was no victim alleged, no loss and no complaint from anyone whatsoever arising out of either of the mortgage advances. The judge rejected that submission, relying upon paragraph 11 of this court’s judgment in Ward

[2008] EWCA Crim 2955

, and found that the benefits were from the general criminal conduct of the appellant.

[16]The judge went on to consider whether the two advances should both be considered cumulatively to be “benefit” for the purposes of the Act, applying the assumptions required to be made under s.10. In particular, he referred to section 10(2) and (6).

[17]Section 10(2) provides this:

“(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.”

Section 10(6) says:

“(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.”

The judge noted that “double counting” would be impermissible in calculating the amount of benefit under these provisions. He referred to paragraphs 13 and 14 of the judgment of this court in Jones

[2006] EWCA Crim 2061

. The judge’s conclusion appears at pp. 10D – 11E of his judgment in these terms:

“One has to, as I’ve indicated, look at each benefit in turn, and in this particular case the defence have drawn attention to two particular aspects of the benefit claimed. The first is as to the re-mortgage. On the 11th June 2004, the first mortgage was taken out, with the Nationwide Building Society in the sum of £420,700, with a 2 year discount deal. In 2006, the property was re-mortgaged. It was re-mortgaged in roughly the same terms. I think it was around £421,000. That was to the Halifax Building Society, In effect, the first mortgage was repaid. The reason for the re-mortgage was probably to take advantage of a further 2-year discount deal which had then elapsed. Therefore the two sums, that is the two benefits identified, did not run concurrently with each other. The second or the re-mortgage effectively extinguished the first. Now, whilst that is not the same as double counting, it is my judgment that to add the two together for the purposes of assessing benefit, even though that is properly done under the assumption, would be an unfair application. It would, in my judgment, not ensure that there was sensible calculation of benefit. It would not moderate the ultimate calculation of that sum. And although the prosecution rightly say, well, these were two separate transactions, they were two separate parties involved, the Nationwide and the Halifax, and were separated from time, and so they legitimately could be seen as two separate benefits which they can under the assumptions. My own view is that this adding together really clouds the issue and extends the matter to an unrealistic extent in this case. And for that reason, I take the view that for these purposes, the first mortgage is subsumed by the second mortgage, and that the proper benefit level is that of the second, that is the re-mortgage, in this case. And that there will be a serious risk of injustice if there were double counting of both original mortgage and the re-mortgage in this case.”

Thus, in his final calculation of benefit, the judge excluded the Nationwide loan, but included the Halifax loan.

[18]In the result, including the amount of the tax credits, the judge arrived at the final benefit figure of £473,269. Realisable assets were found to be the appellant’s half share of the equity of The Sanctuary (£21,039.13), a French property valued at £25,714.28, a motor vehicle at £6,800 and a bank account balance of £150. This produced the total figure ordered to be paid of £53,749.41, later reduced as we have said to £53,703.41.

[19]The initial grounds of appeal (of the appellant’s own composition), upon which this court gave leave on 6 April 2011, raised three points: first, that there was fresh evidence revealing a version of the Nationwide mortgage application form signed by the appellant, with a blank in the space in which the figure of “85,000” had appeared in the copy before the judge and taken to represent the appellant’s income, as compared to the form adduced by the Crown below with an income figure inserted; secondly, there was an alleged mistaken view taken by former counsel (Mr Green) of the meaning of the answers given by the appellant in interview with Revenue investigators; and thirdly, that the appellant was not aware until the date of the trial of the basis of the Revenue’s claim of fraud against her. Further, as part of the third ground, the appellant contended that she had not seen the Nationwide application form with a supposed figure for her income inserted, until presented with it on the day of the hearing. It is said in the grounds that, “The [appellant] was entirely bewildered by this fresh evidence, which regrettably was not challenged by her defense [sic] counsel either immediately or indeed subsequently”. These grounds have been supported by the evidence of six witnesses who did not give evidence on this point below.

[20]Mr Krolick for the appellant applied to add four further grounds of appeal. They are these:

“5) As a matter of fact, in the light of the fresh evidence, whatever assumptions were relied on by the judge to find that the re-mortgage was obtained by general criminal conduct have been shown to be incorrect. 6) The re-mortgage transaction did not fall within any of the assumptions provided for in section 10 POCA 2002, and the judge was wrong in law in treating the Appellant as having obtained the re-mortgage advance or any part thereof; 7) The judge erred in law in treating the Appellant as having obtained the entirety of the mortgage advance, and in increasing the value of the advance, when all repayments of interest and capital had been made in accordance with the mortgage deed; 8) The order was disproportionate.”

Mr Hall for the Crown realistically acknowledged that these were simply points of law and he did not oppose the application. Accordingly, we gave leave for the additional grounds to be argued. For reasons that will appear, however, we did not find it necessary to decide the issues arising in grounds (6) to (8).

[21]When the case came before the court on 31 October 2013, the court was disinclined to resolve hypothetical points of law advanced in the grounds before the final factual amalgam on the appeal had been resolved by the admission, or otherwise, of the fresh evidence sought to be adduced by the appellant. We, therefore, directed a timetable for the hearing of the appeal which we directed should begin with the hearing/reading of the appellant’s proposed new evidence de bene esse, to be followed by submissions as to the admission of such evidence and of the application to rely upon the additional grounds of appeal. Then would follow submissions on all grounds upon which leave had been granted.

[22]To that end, we read in advance the evidence of two executives of the respective lending institutions (Mrs. Tammy Jones of Nationwide and Mr John Ellson of Halifax) and of Mr David Goldstein, the appellant’s solicitor (as to the process of collection of the fresh material), none of whom the Respondent wished to cross-examine. We then heard the oral evidence of the appellant, Mr Coppin and Mr Bernardo Iandico, the latter being the intermediary through whom the appellant and Mr Coppin applied for and obtained the Nationwide advance. Finally, we heard evidence from Mr Green (trial counsel to whom we have referred) who was tendered by the Crown for cross-examination on a statement made by him 21 November 2013 which in turn referred to an earlier note provided by him, at the request of the Registrar, dated 24 August 2010. We had pre-read the witness statements of these witnesses.

[23]At the conclusion of that process, we heard submissions from counsel on the admission of the new evidence and on the application to rely upon additional grounds of appeal.

[24]The tenor of the appellant’s evidence appears in her witness statement of 23 August 2011 in the following terms:

“In relation to the obtaining of our mortgage with the Nationwide in 2004, Ian Coppin and myself were told by Bernardino Iandico, a mortgage broker, that, with our deposit (which was in excess of 25% of the value of the property The Sanctuary) and a good credit rating, this was sufficient to obtain a fast-track mortgage from the Nationwide. Mr Iandico was recommended to us by a friend. We went to meet him regarding the mortgage. On our second meeting with Mr Iandico, we understood that Nationwide had approved our mortgage with the option of an extra £10,000 on the mortgage amount. We declined this. We signed the mortgage application on that second visit. Mr Iandico did not ask me to provide any information on my earnings. My earnings would not have been adequate to get this mortgage, but my understanding was that my earnings would not be necessary for the mortgage to be granted, due to the size of the deposit we had. I was, however, asked to provide the name of the accountant, which I did. That accountant had done my accounts in the past and, as far as I understood, a name was necessary for the application. I did not have any other involvement with the information which was put onto the Nationwide application form, apart from signing the form. My partner Ian Coppin’s details were filled in on the form by Mr Iandico from information given to him by Ian. When Ian and I went to obtain a re-mortgage from the Halifax in 2006, my understanding was that the criteria for obtaining the mortgage would be the same. We had never missed a payment on the Nationwide mortgage and had maintained a good credit rating. I cannot recall being asked for any specific documentation relating to myself in relation to this application. I have been shown a copy of the document exhibited as JVE/1 at Appendix G. I have not previously seen this printout. On page 11 of 35, there is a figure of £45,000 for income. I never provided this figure to anyone in relation to any aspect of this mortgage application – this is not and never had been my level of earnings. I have no idea where this figure has come from. On page 18 of 35, with regard to the lending calculation, the same figure of £45,000 appears as income and available income. Again, I did not supply this figure for any aspect of the mortgage application. This figure is incorrect, and I have no knowledge as to how this happened. These figures were not inserted by me on the Halifax application document.”

In cross-examination she denied that she had accepted in conference with counsel that she had been fraudulent with regard to either mortgage. She said she had agreed the figures were wrong, but could not explain them. She said no figures for her income had been included by her and that she thought that such figures were immaterial in the applications.

[25]Mr Iandico gave evidence. In his witness statement, he said this:

“In 2004, I was contacted by Rebecca Halliday and her partner, Ian Coppin who wanted to obtain a mortgage for £420K in order to purchase a property, The Sanctuary, New Church, Burton-on-Trent, DE14 1JE. As a result, I sent an Agreement in Principle (AIP) to the Nationwide Building Society which detailed my client’s basic information, such as address history and income details. The purpose of this document was to give the Nationwide enough information for them to undertake a credit score. The AIP detailed that a 25% deposit was to be put down. The Nationwide responded to the AIP by offering my clients a fast-track mortgage for the amount requested. Thereafter, I completed the full mortgage application which was signed by both clients. Mr Coppin provided me with a P60, bank statements for the period 01/09/03 – 11/03/04 and a letter from his accountant. No income details or supporting documentation was provided in relation to Ms Halliday. I have been shown a copy of Page 2 of the Application Form which was completed by myself in both my client’s presence. In relation to Mr Coppin’s income details he advised that he was going to become a self-employed ground worker in the relevant tax year that his application relates to. He advised he would receive £35K from his employer and he estimated a further £50K from being his self employed income which totalled £85K. I did not complete any figures containing Ms Halliday’s income. I did provide details of her occupation and her accountants. I did not put any information regarding her income on the form. I was unaware of any figure being inserted until I was shown a second copy of Page 2 of the Application Form which contained the figure “85000” in the year box.”

In his oral evidence, he told the court that the copy application form for the Nationwide loan, signed by the appellant but without the “85,000” figure, as appearing in the bundles before us, was a true copy of the form which he had despatched to Nationwide and which was retrieved from his files. It was put to him squarely by Mr Hall that he had colluded with the appellant and/or Mr Coppin in providing fraudulently false figures to the Nationwide. Mr Iandico strenuously denied that. He told us that the appellant’s income was, so far as he was concerned not relevant to the application, which depended in reality upon Mr Coppin’s income actual and projected as set out in Mr Iandico’s witness statement. He was not asked whether he had had any further discussions with anyone at Nationwide about figures or anything else after the form had been submitted by him.

[26]The written evidence of Mrs Jones of Nationwide told us that, while the income figures provided by an applicant were significant in assessing affordability of potential payment obligations under any mortgage, in the circumstances of this case (where a large down payment was being made) proof of the income figures would not have been required. She said nothing about the circumstances in which figures for the appellant’s income were provided or about the extent to which the appellant’s income (as opposed to that of Mr Coppin) was material to the application.

[27]Mr Ellson of Halifax gave evidence in a witness statement. He also indicated that income figures were relevant to the bank’s assessment of the affordability of the mortgage advance for the applicants, but the loan to value ratio had a bearing on whether income verification would be sought. He produced further, more recent, copy screen shots of computer entries as to the income figures and other matters held by Halifax for the appellant and Mr Coppin. He produced an application form signed by both, but he gave no direct evidence as to the provenance of the figures supplied and whether or not the appellant had personally provided any of them. Nor was there any evidence that any form had been signed by the appellant verifying these particular figures.

[28]We also heard evidence, as we have said, from Mr Green. We did not hear from his instructing solicitor. He told us that he had been involved on the appellant’s behalf in the defence of the confiscation proceedings for about a year before the final hearing. He attended court on two occasions (in addition to the final hearing in January 2009) when the proceedings had been adjourned and he had met the appellant on each occasion. He had provided a skeleton argument which had caused the Crown to revise its initial figures. He described the appellant as a person who did not give clear instructions, who was “highly strung” and who did not find it easy to focus on documents. He was only able to enter into detail about one occasion on which he had taken instructions from the appellant on the facts of the case. This was on the occasion of the final hearing. He said he believed that the prosecutor’s statement and the annexed documents would have been provided to the appellant at some stage before the hearing but he could not say when that would have been. He told us on a number of occasions that the appellant could not explain to him how the figures in the Nationwide application form had come to be completed. She had, however, accepted that the figures were not accurate. She had agreed, he said, that either false figures had been put in or the form had been submitted with income figures for her in blank, in circumstances in which she did not care what might be filled in by someone else. Mr Green said that he took her answers to mean that she was accepting that the form had been submitted fraudulently or at least that was what the judge would infer. He had also put to her answers given by her to Inland Revenue investigators in interview in which she had accepted that the figures in the Nationwide form were false. Mr Green said he advised the appellant that she could not explain how the income figures had been provided to the Nationwide and would have difficulty in rebutting the “assumptions” called for by the Act. She was, therefore, content not to give evidence on these points and did not do so. It appears, however, that she did give evidence and was cross-examined on the question of her available assets alone. Quite how this occurred was not made clear to us, as neither Mr Hall nor Mr Krolick appeared below on the occasion in question.

[29]When asked about the appellant’s instructions concerning the Halifax loan, Mr Green said that this aspect of the case was not covered in any detail. Once the Nationwide loan was likely to be held to be fraudulent, the same was likely to be the case in respect of the second loan; the appellant again could not explain how the loan had been obtained. For him, the most important “plank”, however, had been the “85,000” figure in the Nationwide document and the Halifax matter did not play a large part in discussions with his client or before the court.

[30]At the conclusion of the evidence, we heard submissions from counsel addressed to the criteria governing the admission of fresh evidence in this court, as they appear in section 23 of the Criminal Appeal Act 1968.

[31]Mr Krolick submitted that the new evidence was capable of belief. In particular, he asked us to note the evidence of Mr Iandico, which put the rest of the appellant’s case in perspective and supported the account which she gave as to her own role in the matter. He was an independent witness who had produced from his files the copy of the form which he had submitted to the Nationwide. It did not contain the “85,000” figure in the section dealing with the appellant, which had been central to the Crown’s case. His evidence supported the appellant’s case that her own figures were not material to the loan application. Mr Krolick invited us to hold that there was reasonable explanation for the failure to adduce the evidence in the Crown Court; it was supplied by Mr Green’s evidence, namely that no one had invited the appellant properly to focus upon the Nationwide documents prior to the day of the hearing and she had then simply been unable to explain how the figures had been arrived at. It was only after the hearing that the full significance had been appreciated and steps had been taken to obtain the additional material.

[32]Mr Hall resisted the application to adduce the evidence and invited us to concentrate on section 23(2)(b) of the 1968 Act. He argued that we should find that the evidence would not afford any ground for allowing the appeal. His submission was that this evidence would not have enabled the appellant to rebut the assumptions compelled to be made against her under section 10 of the 2002 Act. It was argued that applying the test in section 10(6), the appellant would be unable to show that the relevant assumptions were incorrect because she was unable to explain how the figures came to be as they were in the records of both lenders.

[33]Having considered these submissions, we decided that the evidence should be admitted and that we would explain our reasons for this conclusion in our judgment, which we now do.

[34]We accepted Mr Krolick’s submission that the evidence of the appellant, as to the absence of having any hand in supplying income figures for her to the lenders, was capable of belief, particularly in the light of the evidence of Mr Iandico. If indeed she had no hand in this then it would show that any transfer of property to her that may have occurred as a result of the mortgage advances would not have been as the result of her “general criminal conduct”, as that phrase is defined in section 76(2) of the 2002 Act. Thus, it might afford a ground for allowing the appeal. Clearly the evidence would have been admissible in the Crown Court.

[35]Further, we found that there was a reasonable explanation for it not having been adduced below, in that no proper attempt seems to have been made by those advising the appellant to focus on the allegedly fraudulent conduct said to have been committed by her in the prosecutor’s statement, until the day of the final hearing. We found it surprising that there appeared to have been no detailed instructions taken upon the contents of the prosecutor’s statement which had been served in August 2008, until the eleventh hour. Mr Green said he recalled having a very brief proof of evidence. It seems that only when Mr Green began to probe the contents of the Nationwide form at the time of the final hearing that any real instructions were taken. Obviously that should have been done long before the day of the hearing. That explained to us satisfactorily why the fresh evidence, and in particular that of Mr Iandico which lies at its foundation, was not adduced at the confiscation hearing.

[36]With that evidence formally admitted, we heard submissions addressed to the grounds of appeal.

[37]The original grounds and ground (5) are based on the facts of the case, in the light of the new evidence which we have now admitted on the appeal. The remaining grounds raise matters of law. Having heard the evidence, and having heard both counsel address us on the facts of the case, we decided that the appeal should be allowed on the basis of grounds of appeal (1) to (3) and (5) (the factual grounds).

[38]We turn, therefore, to the facts first. The question for us is whether, on all the evidence now before us, the appellant has shown on the balance of probability that the assumption that any property transferred to her, at the time of the second mortgage transaction, was obtained by her as a result of her general criminal conduct, is incorrect. Both Counsel accepted that the decision was one for us to take, on the evidence before us, and it was not a matter of deciding how the new material might have affected the judge’s decision. The additional question arises at this stage (under section 10(6)(b) of the Act) whether there would be a serious risk of injustice if any statutory assumption were made.

[39]We have set out above the primary features of the new evidence before us. We should also note that we have had the benefit of hearing substantially more evidence that was before the judge, including the evidence of the appellant herself on the main matter in issue, namely the mortgage loans. We are, therefore, in a rather better position than was the judge to make a decision on whether the appellant has managed to rebut the assumptions required by the act.

[40]The new evidence is given in contradiction of a concession in the Crown Court that misrepresentations were made, which were either conceded to have been dishonest, or were taken by the judge to have been conceded to be dishonest: see above. Mr Green in his evidence disclaimed a concession of dishonesty on the appellant’s part, as opposed to a concession as to the fact of misrepresentations. It is clear nonetheless, from the passage of the judgment already quoted, that the judge was of the view that such a concession had been made. However, Mr Green advised there were no grounds of appeal. He had obviously argued strenuously that the transactions should not be assumed to be part of general criminal conduct for the reasons to which we have already alluded. It is perhaps not surprising, after the ex tempore judgment, that he may not have picked up, or may not have thought to be material, the wider concession that the judge seems to have thought that he (Mr Green) had made.

[41]It seems to us clear that the appellant was saying throughout her conference with Mr Green on the day of the hearing that she had not inserted the “85,000” figure in the Nationwide form and did not know how it had got there. She had not had detailed instructions taken from her about that document until that day. She was saying that she understood her income figures were immaterial for the purposes of the application. Mr Green seems to have taken this to amount to a reckless carelessness or indifference as to what might be inserted in the form by others after she had signed it. He acknowledged that he had little discussion with his client about the lead up to the Halifax loan. On this basis, he considered that the judge would be bound to infer dishonesty and advised the appellant against giving evidence on this issue, advice which she readily accepted.

[42]We consider that the fuller evidence now available to us casts significant doubt upon the view of the matter taken by Mr Green at the time. Looked at as a whole, in the light of the evidence of Mr Iandico and of the document that he has produced, we are satisfied to the requisite standard that any assumption made under the Act, in respect of the Nationwide transaction, is incorrect. We take the same view of the Halifax transaction upon which the appellant was barely cross-examined at all before us. On that transaction, her evidence too was that her own income figures were not needed, only Mr Coppin’s. This is not displaced by anything said by Mr Ellson of Halifax in his statement.

[43]The clear picture that we have is that both transactions, so far as the appellant was aware, were ones based upon Mr Coppin’s income figures. There was a significant equity in the property and the appellant’s figures were not required. She thought no more about it than that. Such lack of care as she may have expressed to Mr Green, about what might go in the Nationwide form after she signed it, was based upon her understanding that her income did not matter, not upon a thought on her part that some bogus figure might simply be inserted for her by someone else after she had signed. This, it seems to us, was what she was trying to tell the Revenue investigators in her interview and Mr Green in the pre-hearing conference.

[44]Mr Hall relied heavily on certain answers given by the appellant in her interview with investigators, who were investigating the tax credit matter, not an alleged mortgage fraud. Mr Hall himself described those interviews as containing a “penumbra of slightly ambiguous evidence”. We agree with that description of those interviews and do not accept that the answers amount to the unequivocal admissions of participation by the appellant in mortgage fraud which Mr Hall submitted that they did.

[45]With regard to the Halifax loan, there were no figures in the Halifax records, verified by any signature of the appellant’s, which can be seen to have been provided by her in a dishonest fashion. She was faced with an impossible task of endeavouring to explain the inexplicable, about how figures came to be entered in the Halifax computers with which she said she had no involvement in providing. As with the Nationwide loan, she denied providing income figures; she asserted the same to be true of the Halifax loan. As to the former loan, she was able to assert that with some outside assistance. We saw no reason to disbelieve her answer to the same effect in relation to the second loan, where there was no document signed by her in which any figures were contained.

[46]In our judgment, therefore, we consider that any statutory assumption against her is incorrect. Moreover, in the circumstances of this case, including the belated failure of the appellant’s own advisers to endeavour to get to the bottom of the figures before the final hearing, we believe that there would be a serious risk of injustice if any such assumption were made.

[47]For these reasons, we allow the appeal. It is not necessary for us to embark upon further consideration of the remaining grounds. We have given careful consideration to the written arguments advanced by Counsel and have heard the oral argument of Mr Krolick on those points. However, we considered that it would be undesirable, in this complex area of the law, to embark upon any final decision on the remaining points where it is not strictly necessary for our decision to do so, in view of our firm conclusion as to the grounds of appeal on the facts.

[48]As Counsel agreed, the consequences of the appeal being allowed should be that the confiscation order made in the Crown Court is quashed. In its place is substituted a confiscation order for £14,610, with a benefit figure specified in that same sum of £14,610. We shall direct that the formal order should require payment within 28 days, with a default period of imprisonment of 9 months. As already mentioned, however, the larger sum ordered by the Crown Court to be paid has been paid already. It is to be hoped that the balance between the sum paid and the sum of £14,610 will be repaid to the appellant as soon as possible, although we understand that we have no power so to order. We say nothing about any interest upon that balance.