Onuigbo (aka Okoronkwo) v R [2014] EWCA Crim 65

Case No 201204789 C4[2014] EWCA Crim 65
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
SOUTHWARK CROWN COURT - HIS HONOUR JUDGE HARDY
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/01/2014
Before
LORD JUSTICE PITCHFORDMRS JUSTICE NICOLA DAVIES DBERECORDER OF LEEDS - HIS HONOUR JUDGE COLLIER QC
Between
UDOAMAKA ONUIGBO (also known as OKORONKWO)AppellantREGINARespondent
Ivan Krolick and Katherine Kelleher (instructed by CLP Solicitors) for AppellantSasha Wass QC and Esther Schutzer-Weissmann (instructed by CPU) for RespondentHearing Hearing date: 28 November 2013
JudgmentLord Justice Pitchford :The appeal
[1]This is an appeal against a confiscation order brought with the leave of the single judge. On 18 February 2010 at Southwark Crown Court before His Honour Judge (“HHJ”) Hardy the appellant faced trial, together with two co-accused, on an indictment containing, so far as it affected her, four counts. In count 1 the appellant was jointly charged that between 1 June 1999 and 24 March 2003 she entered into an arrangement: “whereby the proceeds of the criminal conduct of James Onanefe Ibori were used to secure that funds were placed at the disposal of James Onanefe Ibori … to acquire property by way of investment, knowing or suspecting that James Onanefe Ibori was or had been engaged in criminal conduct or had benefitted from criminal conduct in that they facilitated the movement of monies out of Nigeria to other jurisdictions including the United Kingdom” contrary to section 93A of the Criminal Justice Act 1988.[2]In count 2 the appellant was jointly charged that between 23 March 2003 and 30 May 2007 she entered into or became involved in an arrangement by which the criminal property of James Onanefe Ibori was moved out of Nigeria into other jurisdictions including the United Kingdom knowing or suspecting that the movement of money facilitated the acquisition, retention, use or control of that property, contrary to section 328 of the Proceeds of Crime Act 2002 (“POCA”).[3]In count 3 the appellant was jointly charged that between 23 March 2003 and 30 May 2007 she concealed, disguised, converted, or transferred criminal property, knowing or suspecting that it was benefit from criminal conduct, by facilitating the movement of money out of Nigeria into other jurisdictions including the United Kingdom, contrary to section 327 POCA.[4]In Count 4 the appellant was charged alone that between 1 May 2003 and 31 December 2005 she entered into or became involved in an arrangement by which criminal property of James Onanefe Ibori was acquired, retained, used or controlled on behalf of James Onanefe Ibori in two corporate vehicles known as Zircon Trust and Zeta Limited in Guernsey, contrary to section 328 POCA.[5]In bare summary the prosecution case was that James Ibori a Nigerian national, having lived modestly in the United Kingdom during the 1980s and 1990s, was elected governor of Delta State in Nigeria in May 1999. Within a short period he appeared to have amassed a considerable fortune, the prosecution alleged from corrupt dealings with or on behalf of the State. He used the appellant amongst others to transfer his criminal proceeds from Nigeria to the United Kingdom, Guernsey and the United States to put those proceeds out of reach of the Nigerian authorities. Very considerable sums passed through bank accounts owned and managed by the appellant, as the sum found by the judge to represent her benefit demonstrates. The prosecution relied upon evidence of the appellant’s relationship with Ibori. At the material time she was his mistress and they have a child together. The prosecution further relied upon evidence of the appellant’s extravagant lifestyle, schedules of transactions through the appellant’s United Kingdom bank accounts, proof of a contract for the sale of armoured vehicles to the Delta State at a grossly inflated price and movements of money into money laundering trust vehicles in Guernsey.[6]On 2 June 2010 the jury returned verdicts of not guilty upon count 1 and guilty upon counts 2, 3 and 4. On 7 June 2010 the appellant was sentenced by the trial judge to 5 years imprisonment concurrent on each count. He set a timetable for the confiscation proceedings. On 24 August 2011 the judge made a finding under section 6 (4)(b) POCA that the appellant had benefitted from her general criminal conduct in the sum of £21,148,914.22 and made a confiscation order under section 6 (5) for the recoverable amount of £2,649,959.45. He ordered that this sum should be paid within 6 months with 5 years imprisonment in default to be served consecutively. The appellant or someone on her behalf has paid the confiscation order in full.[7]The appellant now advances six grounds of appeal which we paraphrase as follows:(1) On 26 June 2011 the learned judge ruled erroneously that the confiscation regime under POCA 2002 applied to the offences of which the appellant had been convicted; rather, the correct regime was that set out in the Criminal Justice Act 1988 as amended;(2) The prosecution failed to disclose and the judge failed to order disclosure of (i) the unused material schedule; (ii) all documents supporting the underlying transactions itemised in the banking schedules served for the purpose of trial, and (iii) all material in the hands of the prosecution consequent upon its three letters of request for assistance to the Nigerian Government;(3) The judge failed to require the prosecution to provide particulars and evidence in support of its assertion that payments made to the credit of the appellant’s accounts in the United Kingdom constituted benefit from criminal conduct;(4) On 17 August 2011 the judge failed to grant an adjournment sought on the ground that further preparation time was required;(5) At the confiscation hearing held on Wednesday 24 August 2011 the judge made a ruling upon the value of the benefit received by the appellant in consequence of her general criminal conduct without first providing her with the opportunity to challenge the prosecutor’s assessment of benefit;(6) The judge made errors in the valuation in the appellant’s interest in certain of the realisable assets identified by the prosecutor, namely 36 Hunters Lodge, Maida Vale, 12 Owena Street, Lagos, and rent received in respect of 12 Owena Street, Lagos.[8]At the conclusion of argument we indicated to the parties that the appeal would be allowed upon ground 5 and that grounds 1, 4 and 6 were rejected. The court indicated that it would give reasons for its decisions in writing and, while its decision upon ground 5 made it strictly unnecessary to resolve grounds 2 and 3, the court would give consideration to the parties’ request to give assistance upon the issues of disclosure and particulars of the prosecutor’s case. Having regard to the breadth of the grounds of appeal it will be necessary to examine in some detail the procedural steps taken towards the confiscation hearing that was fixed to commence on Monday, 22 August 2011. The confiscation proceedings[9]In August 2010 solicitors and counsel who, privately funded, had represented the appellant at trial withdrew before commencement of the confiscation proceedings because a further instalment of fees was due but unpaid. The appellant’s former solicitors claimed a lien over the case papers acquired during the course of the trial. Under the terms of a common law lien of which notification has been given to the client the appellant had no right to inspect or to take copies of the documents remaining in her former solicitors’ possession. On 18 August 2010 the Proceeds of Crime Unit (“PCU”) was informed that the appellant was now instructing CLP (Central Law Practice) solicitors.[10]On 27 August the prosecutor served on CLP his statement under section 16 (3) POCA (Prosecutor’s Financial Statement no. 1). Under the timetable set by the trial judge the response was due from the appellant by 18 October 2010. On 20 October 2010 the PCU delivered the schedules of agreed banking transactions on which the prosecution had relied at trial. In a letter dated 7 December, but delivered on 23 December 2010, CLP responded with a request for disclosure of all the evidence relied on at trial, the prosecutor’s case summary, the restraint order over the appellant’s assets, the jury bundle, electronic copies of spread sheets and banking schedules and the “original” bank statements for the indictment period. The PCU responded positively on the same day. Disclosure was made on 21 January and 14 February 2011. However, on 17 February, the PCU declined to provide a copy of the unused material schedule since it was not considered relevant to any issue arising in the confiscation proceedings. The appellant was invited to submit a skeleton argument if it was intended to apply to the judge for an order for disclosure at the mention hearing fixed for 25 February 2011. No such application appears to have been made at that hearing.[11]On 7 April 2011 the PCU served on CLP solicitors a supplementary prosecutor’s statement (Prosecutor’s Financial Statement no. 2), and a copy exhibit followed on 12 April. No response had been served on behalf of the appellant to either financial statement by 28 April 2011 and the matter was listed for hearing on 3 May 2011. The judge ordered that the defence should serve its factual response by 1 June 2011 with a full response by 25 July, by which date the appellant’s forensic accountant was due to have completed his report. At the same hearing the appellant made a request for further disclosure. The prosecution agreed to disclose specific documents forthwith and on the following day provided the appellant with a disc containing the bank statements of three Nigerian companies owned or controlled by the appellant. This material had been served on the appellant during her trial but the prosecution had been unable to adduce it in evidence because permission from the Attorney General of Nigeria did not arrive until after the trial had been completed. The prosecution resisted the application for further disclosure of material acquired in consequence of its first two letters of request for assistance to Nigeria (called LOR1 and LOR2). The material had been reviewed and did not pass the disclosure test. No further disclosure was ordered.[12]On or about 27 May 2011 Mr Ivan Krolick, counsel who had been instructed in the confiscation proceedings, submitted to the Crown Court a skeleton argument in which it was asserted that POCA did not apply to the confiscation proceedings by reason of the application of paragraphs 1 and 3 of the Proceeds of Crime Act 2002 (Commencement No. 5, Transitional Provisions, Savings and Amendment) Order 2003; instead, he submitted, from the outset the Criminal Justice Act 1988 confiscation regime governed the proceedings. Mr Krolick further submitted that if his legal argument was correct, the proceedings were well out of time since under section 72A of the Criminal Justice Act 188, save in exceptional circumstances, the outside limit for the conclusion of the proceedings was 6 months from the date of conviction. Furthermore, the assumptions to be made under section 10 POCA would not apply to the confiscation assessment. As we understand it, Mr Krolick was inviting the court to stay the proceedings. The prosecution served a reply to Mr Krolick’s skeleton argument on 3 June when the parties appeared at a directions hearing.[13]At the directions hearing on 3 June 2011 the judge ordered that within 7 days the appellant should provide particulars of those matters which, she asserted, the judge could not assume in the confiscation proceedings had been resolved against her by the jury’s verdicts. They included: that James Ibori’s wealth had been acquired through crime; and that the appellant was concerned in identified banking and property transactions using money that was, as she knew or suspected, the proceeds of crime. The appellant was ordered to specify which of the transactions identified did not constitute her benefit from criminal conduct and, if not, why not. Finally, the appellant was ordered to specify whether her realisable assets and their value, as identified in Prosecutor’s Financial Statements nos. 1 and 2, were accepted and, if not, why not. The appellant’s response, served on 10 June 2011, was an attempt to reverse the burden placed upon her by the judge’s order. In summary, her response was:(1) the verdicts of the judge did not imply that all or any one of James Ibori’s assets represented the proceeds of crime;(2) no assumption could be made that all or any of the transactions on which the prosecution relied represented the proceeds of crime, or that the appellant knew or suspected they represented the proceeds of crime, or that they constituted benefit from the appellant’s general criminal conduct;(3) it was denied that the transactions constituted benefit from the appellant’s criminal conduct; and(4) the appellant conceded that three specified items of real property were owned or part-owned by her but no admission was made as to their value.[14]A third letter of request (LOR3) had been addressed to the Nigerian authorities on 13 September 2010. The request was granted and, on or about 23 January 2011, investigators travelled to Nigeria to make further enquiries. The Attorney General of Nigeria further responded to LOR3 by the delivery of documents on or about 1 June 2011. In consequence, DC Clark, who was one of the officers who had visited Nigeria, took responsibility from the financial investigator, Mr Gardiner, for a review of the prosecutor’s statement. As a result of that review a supplementary statement, Prosecutor’s Financial Statement no. 3, was served on 7 June 2011. Further adjustments were made and on 23 June 2011, Prosecutor’s Financial Statement no. 4 was served. On Friday 26 June 2011 the issue of jurisdiction and the prosecutor’s application for further particulars of the appellant’s response were listed for argument. The judge concluded that POCA 2002 applied to the confiscation proceedings. The judge rejected Mr Krolick’s complaint that the burden had been placed wrongly on the appellant to make detailed response to the prosecutor’s financial statements and he ordered that there must be full and proper compliance with his order of 3 June. He reminded the appellant, through Mr Krolick, of his power to draw inferences adverse to the appellant should she not comply.[15]On 1 August 2011 the appellant served her factual response to the prosecutor’s financial statements up to and including Prosecutor’s Financial Statement no. 4 dated 23 June 2011. She maintained that her businesses were lawful. She expressly denied that she had laundered money for James Ibori. She did not provide any particulars of the lawful business in which she had been engaged either by way of company accounts or by way of description of the lawful transactions which might explain the activity through her bank accounts. She did however provide particulars of her case concerning the prosecutor’s statement of her realisable assets, item by item.[16]Mr David Winch, the forensic accountant engaged on behalf of the appellant, failed to complete his report by the due date, 25 July 2011, and had not, when he delivered his draft report on 31 July 2011, provided his response to the additional material contained in Prosecutor’s Financial Statement nos. 3 and 4. On 11 August 2011, the appellant’s solicitors instructed a further expert, Mr Jeffrey Davidson, to itemise the work still required. He responded on the same day. In his letter to CLP Mr Davidson set out the instructions he had received from the appellant. The appellant told him:(1) the sum of £2.5 million sent to Guernsey from Nigeria (the subject of count 4) was arranged by a money broker in Nigeria and had nothing to do with her;(2) the sum of £12.3 million paid into the appellant’s accounts in Nigeria were the proceeds of legitimate business conducted by her; and(3) funds generated by legitimate trading were transferred by the appellant from the Nigerian accounts to her UK banking accounts. Mr Davidson expressed the view that in order to substantiate the claims made at (2) and (3) above, he would need to create trading accounts for the relevant businesses. For this purpose he would need sight of the underlying contracts and business documents which generated the figures for sales and cost of sales. He would also need to view the Nigerian and UK accounts side by side in order to identify whether matches between them could be found. Mr Davidson undertook to begin work immediately but he was given to understand that some at least of the necessary documents may be in the hands of the prosecution as unused material. It was doubtful that he could meet the deadline of 22 August 2011.[17]On 16 August 2011 the appellant’s solicitors wrote to the court seeking to break the fixture for 22 August. They relied on four grounds. First, it was said that the prosecution had been uncooperative and tardy in their response to requests for disclosure. Second, the expert evidence was incomplete. Third, evidence had recently been served. Fourth, DC Clark was not available to give evidence at the hearing. Finally, it was asserted that the 5 days set aside for the hearing was inadequate. The application was listed for hearing on 17 August and Mr Krolick attended to advance it. Mr Krolick’s main argument was that the Nigerian bank account schedules/statements which had been served on 4 May 2011 showed transactions worth in total over £12.3 million. The appellant had not had sufficient time to examine those statements; nor had she received the underlying documents for the purpose of advancing the case she had placed before Mr Davidson, namely that the transactions were lawful and nothing to do with laundering James Ibori’s criminal proceeds. Ms Schutzer-Weissmann responded that the appellant had attended and given evidence at her trial which had been completed in February 2010. She knew what evidence was available to support her case. The Nigerian bank statements while not used at trial had been served. They had been re-served on 4 May 2011 which had provided her with ample opportunity to prepare her response. The judge refused the application. As far as he could ascertain the further disclosure requested would not assist the appellant in the confiscation hearing. Five days had been set aside but if it transpired that further disclosure was required it could be dealt with during the hearing. If more time was needed it would be given. In the judge’s view, having heard the evidence at trial, it was likely that the benefit figure would exceed the appellant’s realisable assets by a wide margin and he encouraged the parties to attempt to reach agreement, or at least an agreed statement of issues.[18]The confiscation hearing commenced on Monday, 22 August 2011. Before the court sat at 2.00 pm Mr Krolick and Ms Wass QC concentrated their discussions on a valuation of the appellant’s realisable assets. Mr Krolick drew to the court’s attention that, on 19 August, the PCU had served the Prosecutor’s Financial Statement no. 5. It summarised the effect of previous statements and brought up to date the figures for benefit and realisable assets to reflect concessions made by the prosecutor shortly before the hearing. Mr Krolick provided the judge with a list of issues that were outstanding as to the valuation of realisable assets. It was hoped that agreement would be reached, failing which the issues would have been narrowed for the judge’s decision. The following exchange then took place (AB page 103E):
“Judge Hardy: So the [benefit] is not going to be difficult to arrive at. Mr Krolick: It may be that your Honour’s decision may be required, I do not know, in relation to some of those items but the issues are very small in relation to those. Judge Hardy: Yes, I see. Mr Krolick: Benefit is something which, as your Honour may have appreciated from the hearing on Wednesday, the parties are so far apart, but we are hoping that the court will not be troubled by hearing a blow by blow account of what something was spent on in relation to all these bank statements and so forth. So, your Honour, that is the state of play. I cannot say that we have finally resolved and I cannot say that certainly we will resolve but we are narrowing down the issue and we are still talking, so there are still opportunities for resolution.”
[19]It is clear that in his first response Mr Krolick was referring to realisable assets. In his second he was speaking about the valuation of benefit. Mr Krolick went on to concede that, for the purpose of discussions, the Crown would be able to establish that benefit would exceed whatever was the “available amount”. He informed

the judge (AB page 106):

“I cannot see this case going beyond Friday no matter what happens.”
[20]Following further discussions between the parties, during the afternoon of 22 August Mr Krolick made the following proposal to

the judge (AB, page 109F):

“As I indicated to your Honour, I know it is the usual thing to call evidence about the benefit but this is a case where the benefit claimed by the Crown vastly exceeds the available amount and, as your Honour knows, there was an application to postpone the confiscation hearing because the defence is in difficulties about that, and I still believe that if the available amount was resolved, whether by agreement or, if it proves to be impossible, by the court, the rest would be - that would give the parties an opportunity to conclude their discussions.”
[21]Ms Wass QC confirmed that the parties had made progress on the issue of the available amount and responded that in the absence of agreement she would present her case both as to benefit and realisable assets and call evidence going to both issues on the following morning. Mr Krolick continued his efforts to persuade the judge to isolate the issue of the appellant’s realisable assets and, therefore, the available amount from the issue of benefit. Mr Krolick explained to this court in the course of argument that he hoped, once the available amount was established, to persuade Ms Wass QC substantially to reduce the prosecutor’s financial statement of benefit. At the conclusion of the day’s proceedings the following exchange occurred (AB page 116C):
“Mr Krolick: What I was hoping to do, and I am quite happy that my friend should open the case on the available amount, is to deal with that as a discrete matter. In my submission, nothing would be lost by doing that and a considerable gain could be achieved by that. That is my submission. Judge Hardy: Alright, well, let us deal with it in that way and if there are problems then they will have to be resolved as we go through the proceedings.”
[22]It seems to us that Mr Krolick was justified in concluding he had the judge’s permission to proceed as he proposed, subject to a review of that permission on the following day. However, on the morning of Tuesday, 23 August Ms Wass QC proceeded without objection to open her case in summary form upon both issues: benefit and realisable assets. In the course of her opening Mr Krolick conceded that he would not contest that the appellant had a criminal lifestyle. DC John McDonald was called to give evidence in support of the prosecutor’s financial statements. He explained in summary terms the basis for the calculation of benefit and dealt in more detail with the prosecutor’s case as to realisable assets. Mr Krolick established at the commencement of his cross-examination that DC McDonald did not accept that any of the money credited to the appellant’s UK accounts was the product of her own legitimate business transactions. Mr Krolick then turned his attention to the realisable assets and did not return to benefit. The investigator, Paul Gardiner, was called to deal with his enquiries together with DC Clark in Nigeria in January 2011. That evidence was relevant to the prosecutor’s claim that the appellant had received rent for properties in Lagos and to the valuation of a Range Rover in the appellant’s possession in Lagos. David Pearlman worked for BC Centrum Limited which had provided an off the shelf, or newly formed, company, Boyd Properties Limited, to James Ibori. He gave evidence at the appellant’s request which was relevant to the appellant’s interest, if any, in a property at 36 Hunter’s Lodge, Maida Vale, purchased by Boyd Properties with the appellant’s money.[23]Mr Krolick then called the appellant to give evidence. His questions were directed solely to the issue of property in which the appellant did have or was alleged to have an interest. Ms Wass QC also confined her questions to the acquisition of property that formed the appellant’s realisable assets. The hearing was adjourned part heard to Wednesday, 24 August when Mr Krolick made an application to recall the appellant to deal further with the question whether she was the owner of a property referred to as Plot G/43 Lagos. While the court was awaiting copy documents the judge asked how it was proposed the proceedings should continue. He suggested that it would be convenient to hear from Ms Wass QC first. The following exchange then occurred (AB page 321E):
“Judge Hardy: … As I understand it from what happened yesterday there isn’t really a dispute as to the benefit figure. Mr Krolick: No, I didn’t say that. We will resolve the benefit figure but what I was inviting … Judge Hardy: Well, I mean, it’s a bit like Alice in Wonderland at the moment, you know, sentence first, trial later. Mr Krolick: Well, it is … Judge Hardy: Because the sentence is the available amount. Mr Krolick: Yes, your Honour may recall that what I said was that we accept that the benefit figure will exceed the available amount. Judge Hardy: Yes. Well, I have got to make a finding about what the benefit figure is. Mr Krolick: Your Honour will have to do that if we can’t reach agreement. I am hoping we can … once the available amount has been found by your Honour … Judge Hardy: Because at the moment it stands at £21 million. Mr Krolick: I understand that, yes. Well, that’s what I am hoping to say to the court. Otherwise we would be spending a great deal of time dealing with that particular matter when it may well not be necessary. Judge Hardy: So I don’t know how you are proposing to handle it, but at the moment I have got quite clear evidence of a particular figure and I am reasonably familiar with the background to this case, having conducted the trial. So that is the position at the moment. Mr Krolick: Your Honour will recall, I didn’t ask any questions about the benefit because I indicated and your Honour did in fact suggest, or agreed I think, that that is what we should do. But … Judge Hardy: Well, I mean, the figures have got to be decided by me. Mr Krolick: It will be. Judge Hardy: Alright.”
At this point, Mr Krolick recalled the appellant to give evidence. For the second time, Mr Krolick had, in our view, made plain his intention to complete his case as to realisable assets before resuming negotiations and, if necessary, adducing evidence as to benefit. As we read the passage above the learned judge did not demur. He merely reminded counsel that he would have to make the finding as to benefit and, as the evidence stood, that appeared to be a straightforward matter.

Mr Krolick: Well, it is …

[24]In the event, at the conclusion of the evidence, Ms Wass QC addressed the judge first. She pointed to the section 10 assumptions and then turned to realisable assets. Mr Krolick drew the judge’s attention to section 4 POCA for the definition of recoverable amount and stated that it was common ground between the prosecution and the defence that the available amount was less than the benefit. He then proceeded to deal with each item of property that was contended by the prosecution to be recoverable. He did not address the judge upon the issue of benefit or the valuation of benefit.[25]At 12.41 pm the judge rose for half an hour. When he returned at 1.10 pm he gave his ruling which commenced as follows (AB page 433A):
“These are confiscation proceedings under the Proceeds of Crime Act 2002 following Udoamaka Onuigbo’s conviction by a jury at this court on 2 June 2010 on 3 counts of money laundering. It is not in dispute that the criminal lifestyle provisions apply. Following representations by the defence, including consideration of a draft accountant’s report, the prosecution have put forward a final amended figure of particular and general benefit being in excess of £21 million. After some hesitation Mr Krolick, on behalf of the defendant, realistically appears to accept this figure. The calculation has been carefully prepared, much of the evidence in support having been submitted in schedule form agreed at the trial by Ms Onuigbo’s then solicitors and counsel and from oral evidence at the time. I say “realistically” because when a benefit figure of this magnitude is involved and where the realisable amount is likely to come nowhere near that sum, to argue over a few hundred thousand pounds or even a few million pounds is not going to be a sensible use of court time. I therefore find the total benefit figure against Ms Onuigbo to be … £21,734,909.02.”
[26]At the conclusion of the judge’s ruling, which proceeded to deal with realisable assets, a short adjournment was taken and the final necessary adjustments made to the figures to be inserted into the judge’s final order. Mr Krolick did not at that stage raise with the judge any protest that a decision had been reached as to the value of the appellant’s benefit from general criminal conduct. We did not press Mr Krolick upon his reason for not inviting the judge to set aside his finding as to benefit. It is plain that the judge had made up his mind on the application of the assumptions. The statutory scheme[27]We turn, first, to consider the statutory scheme under POCA. By section 6(1) and(2) the Crown Court is bound to proceed under the section if the defendant is convicted of an offence before the Crown Court and either the prosecutor (or the Director) asks the court to proceed under the section, or the court believes it is appropriate to do so. By section 6 (4) the court must proceed to decide whether the defendant has a criminal lifestyle and, if so, whether she has benefitted from her general criminal conduct. In the present case, none of this was in issue. By section 6 (5) the court is required in such a case to decide the recoverable amount and make a confiscation order in that amount. Section 7 (1) provides that the recoverable amount shall be equal to the defendant’s benefit from her general criminal conduct but, by section 7 (2), if the defendant shows that the available amount is less than that benefit, the recoverable amount will be equal to the available amount. Section 8 provides that when deciding whether the defendant has benefited and, if so, what the benefit is, the court must take account of property obtained by the defendant up to that time.[28]Section 10 specifies the assumptions that the court must make when, having resolved that the defendant has a criminal lifestyle, deciding whether a benefit has been made and, if so, in what amount. They are:(1) That any property transferred to the defendant at any time after the relevant day was obtained by her as a result of her general criminal conduct and at the earliest time she appears to have held it (section 10 (2));(2) That any property held by the defendant at any time after the date of conviction was obtained by her as a result of her general criminal conduct and at the earliest time she appears to have held it (section 10 (3));(3) That any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by her as a result of her general criminal conduct (section 10 (4));(4) That for the purpose of valuing any property obtained by the defendant, she obtained it free of any other interests in it (section 10(5)).(5) However section 10(6) contains an important qualification:
“(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.” “(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.”
[29]It was the appellant’s argument that the wrong statutory regime was applied. Having regard to our decision upon ground 1 it is necessary only to summarise the effect of the preceding statutory regime under the Criminal Justice Act 1988, as amended from 1 November 1995 by the Proceeds of Crime Act 1995. Section 71(1) required the court to apply the provisions of the 1988 Act when a defendant had been convicted of a relevant offence and, either the court had been given written notice by the prosecutor that it would be appropriate to proceed, or the court reached the same conclusion. The court was, by section 71 (1A), required, first, to determine whether the offender had benefited which, by section 71 (4), he did by obtaining property as a result of or in connection with the commission of the offence. By section 71 (6) the amount the offender should be required to pay was equal to the benefit made or the amount that might be realised whichever was the less. The standard of proof required by section 71 (7A) was the civil standard. However, section 72AA introduced for the first time assumptions which the court was entitled to make if (section 72AA (3)) the court thought it fit to do so. The section applied when the prosecutor gave written notice that it was appropriate to apply it and the defendant was convicted in those proceedings of at least two qualifying offences, or had been convicted of a qualifying offence on at least one previous occasion, and the court was satisfied the offender had been convicted of an offence from which she had benefited. The assumptions included that: (1) property transferred to the offender and any expenditure by her were as a result of or in connection with the commission of offences, and(2) for the purpose of valuing any benefit the offender received property free from any other interest in it (section 72AA (4)). However, any assumption was not available to the court if it was shown to be incorrect or there would be a serious risk of injustice if the assumption was made (section 72AA (5)).[30]The Proceeds of Crime Act 2002 (Commencement No. 5, Transitional Provisions Savings and Amendment) Order 2003 (“the Commencement Order”) governed which of the statutory regimes was to apply in the present case. By paragraph 2 (1) of the Commencement Order sections 6 - 92 POCA were to come into effect on 24 March 2003, subject to the transitional provisions and savings in the Order. Paragraph 3 (1) provided:
“3(1) Section 6 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 6 (2) was committed before 24 March 2003.”
Paragraph 1 provides for citation and interpretation. By paragraph 1 (3):
“1(3) Where an offence is found to have been committed over a period of 2 or more days or at some time during a period of 2 or more days, it shall be taken for the purposes of this order to have been committed on the earliest of those days.”
Ground 1: which confiscation regime, POCA 2002 or CJA 1988?[31]The indictment to which we have referred at paragraphs 1 - 4 above was deliberately framed so as to distinguish between offences committed contrary to section 93A of the Criminal Justice Act 1988 and those committed contrary to sections 327 and 328 POCA. The commencement date for the new money laundering offences, contrary to sections 327 and 328, was 24 February 2003 but that date did not apply where the conduct constituting the offence began before 24 February 2003 and ended afterwards, in which case the old money laundering offences continued to apply (see paragraph 3, Proceeds of Crime Act 2002 (Commencement No. 4, Transitional Provisions and Savings) Order 2003); but under the Commencement No. 5 Order the confiscation provisions in section 6 commenced on 24 March 2003.[32]Mr Krolick relies upon the decision of this court in Evwierhowa [2011] EWCA Crim 572, [2011] 2 Cr App R (S) 77 in which the defendant had pleaded guilty in count 1 of the indictment to a charge of conspiracy, between 1 January 2003 and 16 May 2007, to make false instruments (forged passports) with intent that they should be accepted as genuine. The dates pleaded straddled the commencement date for section 6 of POCA. The court (Aiken LJ, Irwin J and HHJ Barker QC) held that the regime under section 71 Criminal Justice Act 1988 applied to the confiscation proceedings. The appellant had, by his plea of guilty, accepted that he was a party to the conspiracy as of 1 January 2003. Notwithstanding that the first overt act on which the prosecution could rely took place on 29 October 2003, the offence was complete on 1 January 2003. Accordingly, paragraphs 2 (1) and 1 (3) of Commencement Order No 5, operated to disapply section 6. The court held that the judge had been correct to apply the provisions of section 71 of the Criminal Justice Act 1988 to the confiscation proceedings.[33]The appellant contends that the offences charged in counts 2 and 3 of the present indictment straddled the commencement date of 24 March 2003 because the start date in each count was 23 March 2003. The offence of entering into an arrangement charged in count 2 is analogous to an offence of conspiracy. Thus, it is submitted, by the jury’s verdict of guilty upon count 2, the appellant was “found to have committed” an offence that was committed before 24 March 2003. For the respondent, Ms Wass QC submits that the dates pleaded in counts 2 and 3 followed conventional practice in the pleading of indictments. It was not the contention of the prosecution that the offences pleaded in counts 2 and 3 had been committed on 23 March 2003 but on and from 24 March 2003. The dates pleaded in counts 2 and 3 merely ensured that 24 March 2003 was embraced by the averment as to time. Furthermore, it is plain from the jury’s verdict of not guilty upon count 1 that they found the appellant had not committed the equivalent money laundering offence contrary to section 93A of the 1988 Act at any time up to and including 23 March 2003.[34]It seems to us, as it did to the court in Evwierhowa,that the application of the POCA confiscation regime turns upon the provisions of paragraphs 1, 2 and 3 of the Commencement Order. In our judgment the terms “an offence found to have been committed” in paragraph 1 (3) and the term “an offence … was committed” in paragraph 3 (1) must apply to the offences of which the jury found the defendant guilty or to which the defendant pleaded guilty. Upon a commonsense interpretation of the jury’s verdicts it seems to us that the appellant was not found to have committed any offence before 24 March 2003. It is to be observed that the central averment made in each of counts 1, 2 and 3 was that the appellant was instrumental in the movement of funds from Nigeria to the United Kingdom knowing or suspecting that those funds were James Ibori’s proceeds of crime. It seems to us that it must follow from the jury’s verdict of not guilty upon count 1 that they were not satisfied that the appellant, with the necessary knowledge or suspicion, had been, up to and including 23 March 2003, instrumental in the laundering of James Ibori’s proceeds of crime. Accordingly, notwithstanding the bracket of dates pleaded in counts 2 and 3, we are satisfied that the appellant was not found to have committed any offence before the commencement date and that section 6 of POCA therefore applied to the confiscation proceedings. We have not, for this reason, had to decide whether the respondent’s argument based only upon the pleading device would have been sufficient to dispose of the appellant’s argument.[35]Our attention was drawn to the possibility of an alternative route to a similar decision. In Simpson [2003] EWCA Crim 1499, [2004] QB 118, Aslam [2004] EWCA Crim 2801, [2005] 1 Cr App R (S) 116 and Stapleton [2008] EWCA Crim 1308, [2009] 1 Cr App R (S) 38 this court held that the regime to be applied may be determined by the prosecutor’s election not to seek a confiscation order based upon criminal conduct that may have taken place before the commencement date. In Stapleton the defendant pleaded guilty to six offences of furnishing false information, contrary to section 17 (1)(b) of the Theft Act 1968. They related to claims for housing benefit. Two of the offences were committed before 24 March 2003 and four were committed afterwards. The court (Latham LJ, Vice President, David Clark and Macduff JJ), following Aslam, held that paragraph 3 (1) of the Commencement Order should be read as though the words “in respect of which a confiscation order is sought” were added, to the following effect:
“Section 6 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 6(2) in respect of which a confiscation order is sought was committed before 24 March 2003.”
The effect of such a construction is to provide the prosecutor with the ability to elect to proceed under POCA only in relation to offences committed after 24 March 2003 without regard to earlier offences and thus to avoid the literal effect of the Commencement Order. The court in Stapleton was aware of the criticism of Aslam made by the late Professor D A Thomas at [2005] Crim LR 145 but considered that Aslam should be followed.[36]In the present case the prosecution also determined not to rely in the confiscation proceedings upon any transaction in which the appellant engaged before the commencement date of 24 March 2003 because the jury had returned a verdict of not guilty upon count 1. However, Mr Krolick argues that this election could not have acted to apply the POCA regime to counts 2 and 3 in the present case because the election could only be made in respect of any offence which did not straddle the commencement date. We see force in this argument and would not have held the POCA regime to have applied simply on the ground that the prosecution made an election as to the cut-off point. Ground 5: the benefit ruling[37]The appellant contends that the learned judge mistakenly understood that she had conceded the prosecutor’s valuation of her benefit from her criminal lifestyle. In consequence, she neither gave evidence, nor addressed argument to the judge, upon the benefit issue. For this reason, the confiscation hearing was tainted with unfairness and the judge’s ruling should be quashed. In our view, this ground must succeed. We have noted that in the course of the hearing Mr Krolick conceded both that this was a criminal lifestyle case (accordingly, that the section 10 assumptions applied) and that the benefit figure would exceed any sum which the parties agreed and/or the judge resolved represented the appellant’s realisable assets. However, the parties were agreed in argument before this court that an accurate assessment of the value of the appellant’s benefit was of importance because section 22 POCA provides the prosecutor with the power to seek a new calculation of the available amount should new assets be acquired or discovered. For the purpose of such an application, the sum of the benefit shall, by section 22 (9), be taken to be the amount so found when the confiscation order was made or such greater sum as may subsequently be found under section 21.[38]Mr Krolick had applied to the judge that he first provided his ruling upon the available amount. Once that ruling was given he wished to conduct further negotiations with the prosecutor and, if unsuccessful, to seek a separate ruling upon benefit following evidence and argument before the judge. This, we conclude, is clear from the transcript of the proceedings to which we have already referred. Unexpectedly, from Mr Krolick’s point of view, the judge proceeded immediately to give his ruling on benefit believing that it had been conceded when it had not. In our view, the judge’s ruling as to benefit preceded upon a misunderstanding of the appellant’s position. Ms Wass QC endeavoured to persuade us that the appellant had in fact conceded the prosecutor’s benefit figure or, in the alternative, that the judge was, in the circumstances, entitled so to find. We reject both these arguments. We express some surprise that Mr Krolick did not register his protest as soon as the judge’s ruling had been given but we do not think his failure to do so rectifies the unfairness to the appellant.[39]It became apparent in the course of submissions to this court that the prosecutor’s benefit calculation was flawed in at least one significant respect. The prosecutor had elected not to rely upon any acquisition of property before 24 March 2003 because, on the jury’s finding, that property was untainted by the appellant’s criminal conduct. The benefit figure was adjusted in Prosecutor’s Financial Statement no. 2 so as to remove from the calculation of benefit any credits into the appellant’s Nigerian bank accounts which took place before that date. In the course of the appellant’s evidence relevant to the issue of realisable assets, she was asked questions about her acquisition of no. 12 Owena Street, Lagos and the rental income she had derived from it. The appellant gave evidence that the property had been acquired in 1997 and the development had been completed in 1999. It is apparent from the evidence given by the appellant in her trial that she had been consistent in this respect. We conclude that the appellant had no interest in putting back the first date of receipt of rental income from this property because if she did, she ran the risk of a finding that her brother was holding on her behalf in Lagos a larger sum of rent received than that which the prosecutor’s enquiries had revealed. Ms Wass QC did not challenge this evidence and Mr Krolick, who, as we have found, was deliberately postponing his submissions on benefit, made no submission to the judge upon the consequence of this evidence to the valuation of benefit. The property at 12 Owena Street (value at the date of the confiscation hearing: £1,160,000) had been included in the prosecutor’s financial statement from the start of the confiscation proceedings as benefit from her criminal lifestyle. Since the prosecutor had conceded, in the light of the jury’s verdict on count 1, that the appellant’s benefit commenced on and after 24 March 2003 (and that accordingly the first assumption in section 10 was shown to be incorrect) the value of 12 Owena Street should not have been included in the statement as part of the appellant’s benefit. It follows that in this respect, if in no other, the learned judge’s ruling upon benefit was erroneous.[40]The appellant wishes to adduce further evidence and to argue that the prosecutor’s valuation of benefit is for other reasons excessive. We make no observation upon the merits of those arguments but we have no doubt that the appellant should be provided with the opportunity to advance them. For that reason we allowed the appeal upon ground 5 and ordered a re-hearing in the Crown Court on the issue of benefit. Ground 4: adjournment[41]Since we have found that there must be a re-hearing of the assessment of benefit it is strictly unnecessary for the court to reach a conclusion upon the appellant’s complaint that the learned judge declined on 17 August 2011 to grant an adjournment. However, we are satisfied that the judge was entitled to refuse the application in the terms he did. The appellant was in possession of a transcript of her evidence at trial. Her defence had been that the receipts into her United Kingdom bank accounts were entirely honest. She knew what evidence she could advance at the confiscation hearing in support of her case that she had made no benefit from her criminal lifestyle, or had received more limited benefit than was alleged by the prosecutor. She had been provided with the Nigerian bank statements during her trial and fresh copies were provided by the prosecutor in early May 2011. As her solicitors wrote to the judge on 16 August 2011, she had completed 90% of her instructions to them as to the transactions which lay behind the receipts into those accounts. The judge expressed his sympathy for the appellant’s predicament. He ruled, however, that the five day hearing fixed for Monday 22 August must be kept. Should it emerge that further disclosure or expert evidence was required he would be amenable to further applications at the hearing for disclosure and extra time. We reject the argument that the judge’s decision created any unfairness to the appellant. Her solicitors had been instructed since December 2010. The appellant had ample time to prepare. It was not demonstrated, in our view, that it was necessary for a wholesale forensic accounting exercise to be carried out in respect of the Nigerian bank accounts before a start upon the confiscation hearing could fairly be made. The appellant’s Nigerian accounts had not been the subject of evidence given during the course of her trial. She must nonetheless have been in a position to locate any of the underlying documents to support her assertion that the business transacted was entirely honest. We note Mr Krolick’s assurance to the judge in the course of the hearing itself that all matters would, in any event, be resolved by the close of business on Friday 31 August 2011. This suggests to us that by the date of the hearing, and without further adjournment, the appellant was in a position to advance her case as to benefit because she had, by that time, instructed her solicitors as to the underlying transactions. Grounds 2 and 3: particulars and disclosure Solicitors’ lien[42]We are invited to express our views upon what Mr Krolick describes as the “protocol” that should apply to confiscation proceedings in the circumstances that arose in the present case. The appellant lost the team of legal representatives who assisted her at trial because “a third party” who was funding her legal representation neglected to make a final payment of fees due. CLP solicitors and Mr Krolick were publicly funded for the confiscation proceedings. Since the appellant’s former solicitors were exercising a lien over the case papers, Mr Krolick and his solicitors depended entirely upon the prosecutor to make disclosure of the material available. The appellant contends that the prosecutor’s obligation included the following:(1) To give particulars of each and every receipt in the appellant’s accounts and transfer from those accounts which the prosecutor asserted represented benefit to the appellant;(2) To give particulars of the evidence at trial in support of the assertion made at (1) above;(3) To give disclosure of exhibits and unused material relevant to the assertions made at (1) above.[43]Ms Wass QC responds that it cannot be the responsibility of the prosecutor to reconstruct the material generated at trial for disclosure to the defendant. In the present case the prosecutor did everything he reasonably could to provide the appellant with the necessary materials including the case summary, the exhibits and the prosecutor’s financial statements, supporting exhibits and schedules. As to the unused material schedule, the prosecution’s obligation in confiscation proceedings was to form a judgment whether the material was capable in those proceedings of undermining the case for the prosecutor or providing some support for the case for the appellant. The prosecution, having reviewed the schedule, reached a judgment that the material was not relevant in this sense and, accordingly, the schedule was not disclosed.[44]At the conclusion of argument in the appeal we requested that the parties provide the court with further written assistance upon the solicitors’ lien at common law and its legitimate reach over papers required in confiscation proceedings as part of the sentencing process in a criminal trial. We are indebted to the parties for their prodigious efforts to provide the court with the assistance requested. We are hampered in any analysis of the lawfulness and reach of the lien claimed in the present case by a complete lack of knowledge of the terms of the retainer held by the appellant’s former solicitors and of the precise circumstances in which they withdrew. Secondly, we are informed by counsel that they have been unable to unearth any previous authority upon a challenge to a lien exercised by solicitors instructed to act in criminal proceedings. We shall proceed upon the assumption which may or may not be correct that the appellant’s trial solicitors discharged their retainer because the funding third party failed to make the final payment of fees due for the conduct of the trial.[45]A lien may be created by the contractual relationship between the parties and/or by operation of law. As to contract, if A delivers property to B pursuant to an agreement that B will do work on the property, B will have a lien over the property to secure payment for work done. A contractual lien entitles the creditor to retain possession of the debtor’s property (see In re Coslett Contractors Limited [1998] 2 Ch 495, per Millett LJ, page 508G). The terms of a contract may determine whether one party may exercise a lien over the property of another (see paragraph below 48). A solicitor’s lien is said to arise at common law to secure payment for work done by an officer of the court upon the papers relating to the matter in issue, whether the business is contentious or not. The rights that arise at common law depend upon the circumstances in which the retainer was terminated. In Inre Faithfull [1868] LR 325 the Vice Chancellor refused to order the applicant’s former solicitors to deliver up papers required for pending litigation where the client had himself terminated the solicitor’s retainer. If, however, the solicitor had discharged himself the position would have been different. The Vice Chancellor said (at page 327):
“... the law seems to me to be clear, that if a solicitor chooses to discharge himself he cannot leave his client in the lurch in the middle of a matter, because his client cannot supply him with money, or by reason of any other difficulty; if he does, he must produce (but not give up) to the new solicitor all papers necessary to enable him to prosecute or defend the matter in litigation.”
[46]In French v Carter Lemon Camerons LLP [2012] EWCA Civ 1180 (Lloyd and Stanley Burnton LJJ, Morgan J), the Court of Appeal accepted as accurate the following statement of the law made in Halsbury’s Laws of England, 5th edition, vol. 66, at paragraph 1003:
“In the event of a change of solicitors in the course of an action, the former solicitor’s retaining lien is not taken away but his rights in respect of it may be modified according to whether he discharges himself or is discharged by the client. If he is discharged by the client otherwise than for misconduct he cannot, so long as his costs are unpaid, be compelled to produce or hand over the papers even in a divorce case [Hughes v Hughes [1958] P 224, [1980] 3 All ER 179]. If, on the other hand, he discharges himself, he may be ordered to hand over the papers to the new solicitor on the new solicitor’s undertaking to hold them without prejudice to his lien, to return them intact after the action is over and to allow the former solicitor access to them in the meantime and if necessary to prosecute the proceedings in an active manner.”
This statement is also supported by the judgments of a powerful two-judge Court of Appeal in Gamlen Chemical Co (UK) Limited v Rochem Limited and others [1980] 1 All ER 1049 (Goff and Templeman LJJ). The court found that a solicitor discharging himself should not be allowed to exert his lien so as to interfere with the course of justice. The court was exercising an equitable jurisdiction (per Templeman LJ at page 1058h) which may admit of exceptions to the general rule and the court may impose conditions on which the papers should be released to another solicitor, depending on the circumstances. It is usual for the solicitor required to hand over the papers to do so upon the new solicitor’s undertaking to hold them to his order and to return them intact at the conclusion of the proceedings. In Bentley v Gaisford [1997] QB 627 the Court of Appeal held that the release of papers subject to such an undertaking did not entitle the new solicitor to make copies and send them to his client unless that was necessary for the disposal of the proceedings. The obligation of the new solicitor was to preserve the lien in favour of the first solicitor to the maximum extent compatible with the need for disclosure.[47]Rule 2.01 (2) of the Solicitors’ Code of Conduct 2007 provides only that the solicitor must not cease to act for a client except for good reason and on reasonable notice. Paragraph 11 of the Guidance that accompanies the Rules advises that the solicitor should “try to ensure the client’s position is not prejudiced” when a lien is exercised. Undertakings to secure costs should be used as an alternative to the exercise of a lien if possible. There may be circumstances where the exercise of a lien would be unreasonable, for example, where the sum outstanding is small or the value or importance of the matter is very great. The Guidance recommends recourse to Cordery on Solicitors.[48]We have access to no authority as to whether different principles apply to the exercise of a lien over papers required in criminal rather than civil proceedings. We suspect that this is because solicitors engaged in a criminal matter do not usually exert a lien over trial papers. In criminal proceedings, unlike civil proceedings (in which the client has a financial interest in the matter at issue against which the lien can be enforced), the issue at stake is liability to a criminal conviction leading to possible imprisonment and confiscation of assets. The client does not have a free choice whether to continue participation in the proceedings. It seems to us that the interests of justice test as it affects criminal proceedings points heavily in favour of an order for production. It is to be noted that a solicitor’s lien cannot be exerted by a solicitor acting under a representation order since clause 8.12 of the Legal Aid Standard Crime Contract Terms 2010 specifically provides that work done under the contract will not entitle the solicitor to a lien.[49]In R v Storer [1993] 111 FLR 243 (Supreme Court, Australian Capital Territory) a subpoena duces tecum was served on a solicitor who remained in possession of files relating to the defendant’s defence to charges of false accounting following the solicitor’s withdrawal for non-payment. The court held that the right of the solicitor to rely upon his lien for unpaid fees had to give way where the interests of justice required. Gallop J examined the papers produced to the court and ordered that they should be made available to Mr Storer’s new solicitors upon their undertaking that they would be held subject to the first solicitor’s lien. That decision was followed by the court in Re Dunstan [2000] 155 FLR 189 in which Miles CJ said:
“Solicitors are of course entitled to be paid by the clients for whom they act, but it is a mistake to assume that they have an unfettered right to keep clients’ documents until they get paid. Storer’s case is only one example of the principle that, at least when the interests of an accused person in criminal proceedings are concerned, the solicitor’s right to rely on a lien might have to give way. Indeed the existence of a lien over documents held by a solicitor previously acting for an accused person might not be as clear as has been thought. No case was cited in which it has been held, after argument to the contrary, that a solicitor has a lien over documents relating to criminal proceedings of a former client. The assumption that such a lien exists may, on closer analysis, prove as illusory as the idea that Australia was terra nullius, (Mabo v Queensland [No. 2] [1992 175 CLR 1) or that a husband cannot be guilty of raping his wife (R v L [1991] 174 CLR 379).”
[50]In England and Wales the equitable jurisdiction to order the production of papers over which a solicitor’s lien is being exerted is exercised by the High Court. Upon the limited information available to us it is our view that such an application may well have resulted in an order for production of the trial papers subject to the usual undertaking as to the preservation of the lien. We were informed in the course of argument that early in the confiscation proceedings the appellant’s former solicitor attended the Crown Court at the request of HHJ Hardy to explain to the judge the reason why the papers were being withheld. He was informed that having taken the advice of the Solicitors Regulation Authority the solicitor proposed to maintain his lien. We express surprise that this was the advice tendered if it was accurately reported to the judge and now to this court. HHJ Hardy concluded, we are told, that he could make no order requiring production. It seems to us that if the solicitors discharged themselves for non-payment they would have had a difficult time maintaining the justification for their lien upon an application to the High Court for release of those papers in the interests of justice. Particulars[51]The prosecution case at trial was that the appellant’s bank accounts in the UK were used to launder money. That case was proved in counts 2, 3 and 4. In the confiscation proceedings the prosecutor served his statement of information under section 16 (1) POCA on 27 August 2010 (Prosecutor’s Financial Statement no. 1). At section 3 the prosecutor set out in summary form the nature of the prosecution case upon those counts. At section 4, as required by section 16 (3), the prosecutor identified the evidence upon which it was asserted that the appellant enjoyed a criminal lifestyle. At section 5 it was noted that although the appellant’s evidence at trial had been that she had legitimate sources of income from her trading companies, no evidence had been discovered of any legitimate credits to her accounts. The only set of accounts produced for one of the companies, Sagicon Nigeria Limited, were, the appellant admitted in evidence, falsified. Most of the credits to the UK accounts were made in cash or by electronic transfers from Nigeria. The appellant had submitted no tax returns in the UK and she was not in receipt of state benefits. At section 6 the prosecutor itemised the deposits into and the transfers from the accounts on which he relied to establish that the appellant had benefitted from her criminal conduct. At section 8 those transactions were valued in the total sum of £6.5 million. It was estimated that in addition the appellant had profited in the sum of £500,000 from the corrupt sale of armoured Range Rovers. The total was thus some £7 million. At section 8, paragraph 9, the prosecutor itemised the property held by the appellant at and after the date of her conviction to which, it was contended, the section 10 assumptions applied. Upon application of the assumptions the appellant’s total benefit was calculated at £16 million. Attached to the prosecutor’s financial statement were a number of appendices, comprising documentary exhibits, including the banking schedules on which the prosecution had relied at the appellant’s trial.[52]On 6 April 2011 the prosecutor served Prosecutor’s Financial Statement no. 2. The prosecutor now relied upon banking deposits, many of them in cash, into the Nigerian accounts of the appellant’s three Nigerian companies Sagicon Nigeria Limited, Rivbbed and Nigerian Pearl. This was the evidence which had been served on the appellant during her trial but which the prosecution had been unable to deploy in the absence of the consent of the Attorney General of Nigeria. After making adjustments for duplication the total deposited was £12.3 million. The total benefit calculation had by this means risen to £28.5 million. Attached to the statement were banking schedules for each of the companies. As we have said, in early May the prosecutor served the bank statements themselves.[53]In our judgment, the prosecution had given in these financial statements all the particulars of its case that it was obliged to give. It had specified each of the transactions on which it relied to establish that the appellant had benefited from her criminal conduct. Since the appellant’s criminal lifestyle was established by the jury’s verdict, the section 10 assumptions applied and the burden was upon the appellant to show that the money she had admittedly received did not represent criminal benefit. We conclude that HHJ Hardy was perfectly entitled to seek from the appellant under section 18 (2) POCA particulars of her case that none of the receipts on which the prosecution relied represented the proceeds of crime (see paragraph 13 above). We also conclude that the appellant’s response was lamentably deficient and, by section 18 (4), the judge would have been entitled to draw inferences adverse to the appellant’s case in the confiscation proceedings. Disclosure[54]In our judgment, the prosecution responded quickly and appropriately to the request by CLP for disclosure of documents relevant to the trial (see paragraph 10 above). The response of the prosecutor was not to refuse disclosure on the ground that the appellant should pursue her remedy against her former solicitors, but to provide all trial documents that he reasonably could. It seems us that this was the appropriately pragmatic response and a course that HHJ Hardy would in all likelihood have ordered had he been required to do so. The prosecution disclosure did not, however, provide the appellant with all the material that would have been required for the confiscation proceedings but was still in the hands of her former solicitors, such as her own proof of evidence, copies of any exhibits produced by the defence, and the appellant’s comments or instructions upon the prosecution’s banking exhibits. The appellant did, however, give evidence, during which she gave her explanations for the banking transactions on which the prosecution relied. The appellant obtained legal aid funding for a transcript of her evidence at trial which should have been sufficient to enable her new legal representatives to know the case being advanced by the appellant as to her UK bank accounts. Any copy exhibits required could be obtained from the prosecution and/or from inspection of the court file.[55]The material on which the prosecutor relied to establish the enhanced benefit from Nigerian banking transactions was, as we have seen, served on the appellant with or shortly after delivery of the Prosecutor’s Financial Statement no. 2.[56]We are, however, puzzled as to the reason why the prosecution should have refused to provide to Mr Krolick a copy of the unused material schedule which had already been disclosed to the appellant’s solicitors in preparation for the trial but, for reasons that we have explored, was not available to the legal representatives in the confiscation proceedings (see paragraph 10 above). We are told that the contents of the schedule had been reviewed by the lawyers and were judged not to include any material that was of relevance to the confiscation proceedings. That may be so, but it seems to us that nothing is more likely to excite the suspicion of the appellant than a refusal to disclose information that had already been disclosed on an earlier occasion in the same proceedings. Mr Krolick had a justifiable interest in making his own examination of the schedule in case something of relevance had been missed by the trial lawyers. It is difficult to appreciate why the schedule was judged relevant for the purposes of trial but not for the purposes of confiscation when precisely the same issue arises, namely the legitimacy of the sources of funds passing into the appellant’s bank accounts. We consider that the unused material schedule should be made available for inspection on behalf of the appellant before the rehearing of the benefits issue.[57]We turn to the material on which the prosecution relied in the confiscation proceedings but which had not been available for use at trial. This material emanated from letters of request to the Nigerian authorities (see paragraphs 11 and 14 above). The first observation we should make is that the prosecution’s ability to rely on this material will depend upon the terms of the consent provided by the Nigerian authorities (see Gooch [1999] 1 Cr App R (S) 283; Gohil v Gohil [2012] EWCA Civ 1550, [2013] 1 WLR 1123). Section 9 of the Crime (International Co-operation ) Act 2003 contains an absolute prohibition against the use of material obtained in response to letters of request save for the specific purposes authorised by the consent of the assisting state. The same embargo applies to the appellant’s requests for disclosure unless Nigeria has given its consent to the use of the material in the confiscation proceedings.[58]Assuming that the material is, in this sense, available for use, the prosecutor’s function is the same as it would be in preparation for trial. We consider that the CPS legal guidance to Crown Prosecutors upon chapter 21 of the Disclosure Manual correctly identifies the prosecutor’s disclosure obligation as follows:
“21.2 Where a financial investigation is supporting a criminal investigation or is being conducted alongside a prosecution case, the financial investigator must ensure that revelation of all material is made to the prosecutor on the relevant forms in accordance with the existing procedure set out within CPIA 1996. In normal circumstances this will be via the disclosure officer. 21.2 The underlying principles of the common law, the Guidelines and ECHR mean that prosecution material created or obtained following conviction should be dealt with in the same manner. This will include the continuing duty to review the unused material, particularly, if appropriate, following the receipt of any response to a confiscation statement.”
It is the prosecutor’s responsibility to examine the material for the purpose of ascertaining whether it may have the effect of undermining the case for the prosecutor or assisting the case for the appellant. There is no doubt as to what is the appellant’s case. She says that all or some of the UK and Nigerian banking transactions are the product of legitimate trading. If any of the documents are relevant to that issue they are susceptible to disclosure. If, as Ms Wass QC informed the court in argument, they are not relevant to that issue then they are not susceptible to disclosure.[59]We have not been invited to look at any of the material held by the prosecutor but not relied on in the confiscation proceedings. It would not have been appropriate to do so unless there was reason to think that the prosecutor had failed properly to apply the disclosure criteria. Ground 6: the available amount 36 Hunter’s Lodge, Maida Vale[60]HHJ Hardy accepted the appellant’s evidence that she had purchased 36 Hunter’s Lodge with funds from her accounts on behalf of James Ibori using Boyd Properties Limited as his nominee title holder. She said that he changed his mind about the purchase and told the appellant that she could recoup the purchase price through the sale of the property. Mr Krolick sought to argue that the appellant had no beneficial interest in the property since none could be bestowed by oral agreement after the purchase had taken place. The judge did not accept this argument. He held that the property company was a joint venture by Ibori and the appellant to launder criminal proceeds in which the appellant, by reason of her advance of the purchase price, held the full beneficial interest. Mr Krolick had a respectable argument that Boyd Properties did not hold the legal title to 36 Hunter’s Lodge subject to any beneficial interest held by the appellant. However, it emerged at the conclusion of argument that Boyd Properties had indeed disclaimed any beneficial interest, consented to the sale of the property and consented to the application of the proceeds to the use of the appellant. The sale proceeds had been utilised in part payment of the confiscation order. In the light of these developments there seems to us no merit in the appellant’s criticism of the judge’s finding. 12 Owena Street, Lagos[61]We have already referred to the error made in the Prosecutor’s Financial Statements as to the treatment of the capital value of this property as representing the appellant’s benefit from criminal conduct (see paragraph 39 above). Its capital value was, nonetheless, available as an asset that could be realised and included in the available amount. The prosecutor’s investigations in Lagos in January 2011 revealed that the owner of the block of flats at 12 Owena Street was Rivbbed, one of the appellant’s Nigerian companies. Nigerian law requires that there must be more than one shareholder in a registered company. The appellant held 90% of the shares in Rivbbed and her sister was the registered holder of 10%. The judge concluded that this was merely a device by which the appellant complied with the local law and that the appellant held a 100% beneficial interest in the assets of the company, including 12 Owena Street. Mr Krolick argued that this was not a finding open to the judge since the company was owned in the proportion of shares registered. We see no reason why the judge should not have drawn the inference he did. He noted the fact that in the case of another company the appellant had registered her four month old daughter as the second shareholder. There was no evidence from the sister or any independent source that she was more than a nominal shareholder. Rental income from 12 Owena Street[62]During the investigation in Lagos in January 2011 it was discovered that the tenants occupying 12 Owena Street had been paying rent in the appellant’s absence to her brother (Hanwell Engineering Limited) who was managing her affairs while she was in the UK. The judge treated as part of the appellant’s assets rent paid for a two year period with an adjustment in respect of the cost of the landlord’s maintenance of the property. Mr Krolick argued that the prosecution had failed to establish that the rental income comprised assets controlled by the appellant rather than her brother and, even if they had, that the proceeds remained available. We reject this argument. It was the appellant’s own evidence that her brother was representing her interests in Lagos. It was an inference open to the judge that the brother was receiving the rental income on her behalf and held it to her account. Conclusion[63]To the limited extent we have indicated at paragraph 8, the appeal was allowed for the reasons we have given in this judgment.