Di Stephano, R. v [2016] EWCA Crim 1032

[2016] EWCA Crim 1032
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate 19th April 2016
Between
R E G I N ACrownDI STEPHANODefendant
The Strand
London
WC2A 2LL
B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES (Lord Thomas of Cwmgiedd)____________________
____________________Rupert Pardo (assigned by the Registrar of Criminal Appeals) for defendantDavid Aaronberg QC (instructed by the Crown Prosecution Service, Organised Crime Division) for Crown____________________

JUDGMENT (APPROVED)

[1]The applicant, who at some stage worked in a law firm, pretended to be a qualified lawyer. Under that pretence, between 2004 and 2009, he obtained very substantial sums of money, in excess of £3m from those who sought his help, largely in criminal proceedings. Those he defrauded (for defrauded them he did on the verdict of the jury) were often vulnerable people as they were either defendants accused of criminal offences, or the family of defendants, who believed that he was a lawyer and believed he could assist them.[2]The applicant was duly extradited from the Kingdom of Spain and brought to this country. He stood trial and was convicted on a 25 count indictment. Before turning to what happened after his conviction, it is necessary briefly to recount how he came to be returned to this country.[3]On 31 January 2011 a European Arrest Warrant was issued in respect of a number of the offences for which the applicant was subsequently tried. In accordance with the procedure set out in the Extradition Act 2003 ("the 2003 Act"), the warrant was issued by the England and Wales Judicial Authority, namely one of the magistrates at the Westminster Magistrates' Court, under section 142 of the 2003 Act. The applicant was arrested in Majorca on 14 February 2011. He consented to be extradited on 21 February 2011, but did not waive specialty.[4]Shortly thereafter, in March 2011 he appeared at Westminster Magistrates' Court. During the course of the proceedings the prosecuting authorities decided that he should be dealt with for a number of other matters. On 26 June 2012 a letter of request was issued seeking the consent of Spain to prosecute for further offences. That consent was necessary because of the provisions of specialty, replicated in section 146 of the 2003 Act, to be found in article 27 of the Framework Decision. It is a traditional feature of international extradition law.[5]Shortly after the issue of that request, the applicant consented to waive specialty in respect of those offences. Thus, when he came to stand trial at the Crown Court at Southwark in January 2013, the 25 count indictment of dishonesty that he faced included offences of obtaining a money transfer by deception, theft, acquiring criminal property by deception, using criminal property and fraud.[6]At the trial the applicant was represented by leading and junior counsel. He gave evidence. After his conviction on 27 March 2013, he pleaded guilty to two further offences. On 28 March he was sentenced to a total of 14 years' imprisonment. The sentencing remarks vividly set out the gravity of his criminality, which was plainly reflected in the long sentence he received. It will be necessary in due course to return to one aspect of the sentencing remarks.[7]Confiscation proceedings were duly commenced under the Proceeds of Crime Act 2002. The various documents that the 2003 Act prescribes were served by the applicant. The Crown Prosecution Service ("CPS") then served its statement in accordance with section 16(3) of the Proceeds of Crime Act 2002. That was answered by the applicant.[8]After various preliminary hearings, the confiscation hearing was listed on 21 and 22 November 2013 in the Crown Court at Southwark, before the same judge who had presided over the trial. It was agreed between the parties that the applicant's benefit was £38.417m. The only issue was the available amount. The issue primarily related to tainted goods, property that he might have retained and hidden assets. It appears that he gave evidence briefly. His case was that he had spent everything; nothing was left.[9]In a ruling given on 20 March 2014, on the basis of the applicant's evidence both at trial and at the confiscation proceedings, the judge found that gifts which had been made to friends and family were tainted gifts. Although some of the cash withdrawals had been dissipated, some assets had been retained; that there were hidden assets to the extent of £3m. In his detailed ruling, the judge set out his conclusion that the available amount was £1.429m and €754,469, which totalled (when converted) £2.58m. The judge ordered that amount to be paid and made an order that if the amount was not paid, the default sentence would be a period of imprisonment of eight and a half years.[10]Shortly after that order was made, there was an application at the City of Westminster Magistrates' Court. The period in default was activated.[11]It appears that between that date and 18 February 2015 the applicant carried out some researches and applied for leave to appeal against the confiscation order. We are told that he had no legal resources available to him firsthand and that he had to carry out some of the research himself.[12]Subsequently he obtained representation by counsel who, with what some might describe as ingenuity, has raised three points on which leave to appeal is sought. These points have all been referred to this court by the single judge. They can be summarised as follows: first, that because of the way in which the CPS had sought to have the European Arrest Warrant issued, there was no jurisdiction to make the confiscation order; secondly, that even if there had been jurisdiction, the ruling made by the judge was contrary to what the judge had said earlier, and contrary to the evidence; and thirdly, that the term of default was excessive.[13]We shall consider those points in turn. The first point relates to an assertion that there is a lack of jurisdiction to make the confiscation order. It is to be noted that the point that has now been raised before us, if it had the remotest chance of being seen by anyone competent as a point that should have been taken, was patent on the face of the proceedings. In our judgment the point now sought to be raised as to jurisdiction is wholly without merit for the following reasons.[14]First of all, as we have explained, there arises in this case no issue of specialty. It is clear that in respect of each of the offences for which the applicant was subsequently tried, the offence had been included either in the original warrant or the consent of Spain had been obtained.[15]Secondly, it is clear that the provisions in relation to specialty apply to offences. In a decision given by this court in R (Director of Revenue & Customs Prosecutions) v Birmingham Magistrates Court and Woolley [2010] EWHC 12 (Admin), it was said that where a sentence in default has been imposed, it was part of the original sentence and is in no way affected by the rules as to specialty. It is particularly important in the context to which we shall come to point out that the decision in Woolley was commented on by the European Court of Human Rights in its judgment in Woolley v United Kingdom (2012) 56 EHRR 15, where, by reference to its own previous case law, it held that confiscation proceedings and imprisonment in default of payment arising out of offences for which the defence of specialty did not apply could not themselves give rise to a defence of specialty.[16]It is therefore important to note, when we turn to examine the argument advanced to us, that it is accepted on behalf of the applicant that no issue of specialty arises. What is said, however, is that the proceedings for confiscation were invalid because the warrant did not comply with article 8(1)(g) of the Framework Decision (2002/584/JHA) of 13 June 2002. Article 8 provides as follows:
"1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: (a) the identity and nationality of the requested person; (b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority; (c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of articles 1 and 2; (d) the nature and legal classification of the offence, particularly in respect of article 2; (e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person; (f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing member state; (g) if possible, other consequences of the offence."
In the Annex to the Framework Decision there is set out a model form of European Arrest Warrant which at C1 states the maximum length of the custodial sentence or detention order which may be imposed for the offences.[17]The argument that has been advanced before us is that, because the European Arrest Warrant did not refer in any way to the potential of confiscation proceedings or to the default penalty of imprisonment that might be imposed, there was no jurisdiction to proceed against the applicant in confiscation proceedings.[18]In our judgment this argument is hopeless for two separate reasons. First of all, as has been clearly established as a matter of basic constitutional law, the jurisdiction of this court and of the criminal courts is derived from the Acts of the United Kingdom Parliament at Westminster. The legal regime applicable is the Extradition Act 2003. Part 3 of that Act deals with extradition from European territories ("Category 1 territories"). Section 142 makes provision for what should be in a warrant to be issued in this country. Nowhere within the 2003 Act is anything along the lines of the detail of article 8(1)(g) specified. Thus, nowhere in the 2003 Act which governs the procedure of the courts, and in relation to which a person is extradited, is there any provision which requires the fact that a possible penalty of confiscation should be included within the warrant. It is clear, therefore, quite unlike the provisions of section 146 which deal with specialty, that under the relevant legislative provisions under which the courts of England and Wales deal with extradition, the point that has been raised simply does not arise. But even if the provisions of the Framework Decision, and in particular article 8(1)(g), were directly applicable, in our judgment they would afford no possibility of an argument that the bringing of confiscation proceedings against the applicant was a matter in which the courts of England and Wales had no jurisdiction.[19]It is quite clear from the form of the European Arrest Warrant, to which we have briefly referred, and the terms of article 8, that the reference to "other consequences of the offence" are merely described in terms of "if possible, other consequences of the offence". But even if that were to be read in a mandatory form, that they had to be provided where known, we do not consider that, if this were the instrument which governed the jurisdiction of the courts, a mistake or an omission of something of this kind from the European Arrest Warrant would in any way invalidate the jurisdiction. By way of illustration, it is clear from the decision of the Court of Justice of the European Union in Criminal proceedings against Leymann and Pustovarov (Case C-388-08PPU) EU:C:2008:669; [2008] ECR I-8993, the court paid particular attention to the recitals to the Framework Decision, and in particular recitals (5), (6) and (10). It made clear, as to those recitals, that the European Arrest Warrant was to be looked at as a measure of judicial co-operation between the judiciary of member states and for member states to have a fair degree of latitude in the way in which they co-operated and operated together. In that case the issue related to the extent to which some modifications to the description of the offence could be made, as the case was concerned with the issue of specialty. The court observed at para 56 that not every modification of the description of the offence would go beyond what is implied by the specialty rule and interfere with the objective of speeding up and simplifying judicial co-operation of the kind referred to in the Framework Decision. It is inconceivable that the Court of Justice of the European Union would decide that an omission of the kind that has been put forward would invalidate the warrant or in any way preclude the state that had obtained the surrender of the person concerned from proceeding. It is well known that from time to time errors are made in European Arrest Warrants. If they are important, the points are taken at the time of surrender. It is impossible to see how it can be contemplated that an omission of the kind suggested here could in any event invalidate jurisdiction.[20]Furthermore, this was a point that was not taken at the time the confiscation proceedings were brought. It may be, as has been raised in argument, but we say no more about it than this, that a possible argument in relation to abuse of process or something of the kind could have been run, or a point could have been made when it would have been possible to deal with the matter. No such point was taken. It was a point that was patent to any lawyer. There can be no doubt that if the point had been a good one, it would have been patent to the very competent lawyers who were representing the applicant at his trial and at the confiscation proceedings. The reason they did not take it is obvious: there is nothing whatsoever in the point. It is wholly bad and we refuse leave to appeal on it.[21]We turn to consider the other two grounds of the application. The first relates to the way in which the judge arrived at his decision in respect of the available amount. In this respect it is important to point out that in his sentencing remarks the judge said:
"This money [sums that the applicant had taken], like all the other money you stole, went straight into your bank account, usually overdrawn. You spent every penny of it, mainly on high living."
[22]It is hardly surprising, therefore, that those who competently represented the applicant at the hearing took the point in the course of the hearing to which we have referred that the judge had already expressed the view that all the money had been spent. At para 3.1 of the ruling in the confiscation hearing, after reciting that, the judge said:
"This observation accurately represented the state of the financial evidence before the court at trial."
[23]We have no transcripts or detail as to what was said at trial, but we were told that there was some evidence of the applicant's high living and lifestyle. The jury were played a documentary which showed the applicant at his villa drinking cocktails, going to an expensive hotel, and boasting that he was a man worth many millions.[24]The judge went on to say that the prosecution had pointed out to him that the mere fact that the applicant was a high spender and was financially irresponsible in relation to the money which he dishonestly obtained and the bank accounts into which he paid it did not mean that he had not acquired capital assets along the way. They submitted that the indication was that all the money was spent. The ultimate destination of it, they argued, was not clear on the evidence. The judge went on to say that he therefore must grapple with the evidence.[25]At the hearing that took place before the judge in the confiscation proceedings, the applicant gave evidence. It is plain from the section 16(3) statement that was served by the Crown that there were details of bank accounts that the applicant had had. In particular there was one account, a Lloyds TSB account (No 3000-0xxxxxx), which operated from December 2002 to May 2009, into which had been paid £3.72m. However, by the time the account was closed there was a nil balance. Thus, approximately one-third of the benefit received had been paid into that account.[26]Taking that as an illustration, and looking at the judge's detailed ruling, it is plain that the judge did as best he could to ascertain what had happened to the money. But the real fallacy in the argument that has been put before us is this. The applicant was in a perfect position to have been able to explain what had happened to the money. He did not do so. It is hardly surprising, therefore,(1) when the focus was upon what had happened to the funds he had received and the detailed information that the prosecution had put before the judge, and(2) when the applicant had made no attempt to justify where the money had gone, that the judge reached the conclusion he did. The judge's view in the sentencing remarks was, as he rightly pointed out, his view at the time on the evidence then available. When he came to look at the matter in detail, the applicant had every opportunity to explain what had happened to the money. He did not do so. The judge's ruling, to which we pay tribute, is a very careful examination of all the issues on the evidence so far as made available to him. This second ground of application is, therefore, wholly without merit and we refuse leave to appeal.[27]The third point relates to the length of the default sentence. We have very carefully considered the default sentence imposed. We note that the sentence of eight and a half years is just one and a half years short of the maximum. As has been submitted to us, the sum of money in this case is not as great as in some other cases. Therefore, looking at the matter in the round, we have concluded that the default sentence was too high. In our view, taking all the factors into consideration, including the position of the applicant, the sentence that was imposed upon him and all the other circumstances of the case, the appropriate sentence should have been one of six years' imprisonment in default.[28]We therefore quash the default period of eight and a half years' imprisonment and impose in its place a default period of six years' imprisonment. Accordingly, we grant leave to appeal and allow that part of the appeal to that extent, and to that extent only. In default of paying the funds, the applicant must serve that term.