Evans, R v [2016] EWCA Crim 671

Case No 201502365 C2

[2016] EWCA Crim 671

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

Venue ON APPEAL FROM MANCHESTER CROWN COURT

HIS HONOUR JUDGE ATHERTON

T20080282

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

Date 10/06/2016

Before

LORD JUSTICE DAVIS

MR JUSTICE GILBART

THE RECORDER OF NOTTINGHAM (SITTING AS A JUDGE OF THE CACD) HIS HONOUR JUDGE MICHAEL STOKES QC

Between

ReginaAppellant

Duncan EvansRespondent

Bruce Stuart appeared pro bono for Respondent

Hearing Hearing date: 24 th May 2016

Judgment

His Honour Judge Stokes QC:

Introduction

[1]This is a renewed application for leave to appeal against sentence following refusal by the single judge. The application is restricted to the confiscation order of £19,645,021 made by HHJ Atherton at Manchester Crown Court on the 17th April 2015, who declared the applicant’s benefit from criminal conduct to be in the sum of £21,407.595.92. The applicant was ordered to pay the sum ordered within 28 days in respect of the liquid assets and the remainder within 6 months. A sentence of 10 years’ imprisonment was imposed in default.

[2]The confiscation order followed the applicant’s conviction before the same judge and a jury at Manchester Crown Court on the 5th August 2009 (i.e. over 5 years earlier) of two counts of concealing or disguising the proceeds of criminal conduct, contrary to section 91 C (1) (b) of the Criminal Justice Act 1988 and one count of concealing, disguising, converting or transferring criminal property, contrary to section 327 (1) of POCA 2002. The trial had lasted for 10 weeks.

[3]On the same date he was sentenced to 4 years’ imprisonment.

[4]On the 22nd July 2010 a different constitution of this court, (Moses, L J, Underhill, J and HHJ Bevan, QC

[2010] EWCA Crim 2516

) refused his renewed application for leave to appeal against conviction.

[5]But this applicant’s story begins much earlier. On the 19th March 2003, before HHJ McCreath and a jury at Birmingham Crown Court, he was convicted of money laundering offences arising out of Missing Trader Inter Community Frauds (MTIC). Following those convictions, he was sentenced to 3 years’ imprisonment, and on the 15th December of the same year he was made the subject of a confiscation order in the sum of £2,950,000 which order was satisfied by the 14th February 2005. The restraint order granted earlier in those proceedings was discharged.

[6]There was a significant difference between the Birmingham confiscation proceedings and the present case. The Birmingham order was based wholly on the applicant’s particular criminal conduct arising from the offences of which he was convicted. The order which is the subject of the present application involves consideration of the applicant’s general criminal conduct which brings the lifestyle provisions and the statutory assumptions in to play.

[7]The current proceedings arise out of the purchase and subsequent sale of a large country house in Cheshire called Deans Green Hall. The purchaser was a shelf company incorporated in Gibraltar called Moreta Holdings Limited, acquired through a firm of lawyers also based in Gibraltar, called Nunez & Co. The ultimate owner of Moreta at the time it was set up was understood to be the applicant’s wife, Wendy Evans. The purchase price of £1.5 million was paid in three tranches by the legal firm from funds from its client account which originated in Hong Kong and were proved to be the proceeds of crime.

[8]Deans Green Hall was sold in 2006 to a man called Roderick Bond for £3.5 million in 2006. The sale arrangements were very complex and involved the purchase of Moreta by a management consultancy business known as Grafton Organisation Limited, a UK based company. It was then sold on to Mr. Bond. It was the Crown’s case that the original purchase of the property was funded by the proceeds of two missing trader (MTIC) frauds of which the applicant was convicted in Birmingham, that Moreta was, in reality, owned and controlled by the applicant and that Grafton, which had been involved in the release of the cash now laundered through the property, was controlled by Leslie Cairns, the applicant’s co-accused in the Manchester offences. It is significant that these activities, which resulted in the Manchester convictions, were taking place during the period in which the applicant was under investigation and ultimately tried and convicted for the Birmingham offences.

[9]The key factor in both sets of offences is the disguising by the applicant of his ownership or control of various companies and other financial instruments which were used to launder criminal proceeds both for his benefit and the benefit of others. It is conceded by Mr. Stuart, who appears for the applicant, that the applicant and others had created a highly complex web of foreign based companies designed to hide from the authorities in the UK and elsewhere a catalogue of illicit transactions. On any view, and certainly in Judge Atherton’s judgment, the applicant is a devious and accomplished fraudster prepared to manipulate events to his own and his associates’ advantage.

[10]The judgment of Judge Atherton runs to 148 pages. It is clear to us that he considered the complex history of the applicant’s dealings and criminality with great thoroughness and painstakingly examined the available evidence before reaching his conclusions. The applicant gave evidence and conceded that he had deliberately concealed available assets from the court in Birmingham which was likely to make any judge sceptical as to his credibility as a witness. In the event, Judge Atherton found that he had played a leading role in the laundering of the proceeds of crime for his own financial gain and for the financial gain of others.

[11]Mr. Stuart, while recognising the Herculean task before the judge, makes a number of criticisms of his findings to which we shall refer later in this judgment, but his main submissions relate to the length of time the proceedings took to reach a conclusion. The relevant date, this being a criminal lifestyle case, is the 5th October 2001. The written judgment was not handed down until the 17th April 2015. It is the constant refrain throughout the grounds of appeal and skeleton argument, and echoed before us, that the applicant has suffered real or potential prejudice by reason of unreasonable delay. “The delay in conducting these proceedings has meant that [the applicant’s] recollection of matters and his ability to obtain documentation and witnesses to support his case has led to a serious risk of injustice”

[12]He submits that the length of the proceedings breached the applicant’s Art.6.1 rights to a hearing within a reasonable time.

[13]Art.6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides:- “In the determination of…any criminal charge against him everyone is entitled to a hearing within a reasonable time by a …tribunal.”

[14]Mr Stuart relies on Piper v. United Kingdom (2015) 44547/10, although he makes a number of realistic concessions. First, he makes no complaint about the period of time between the applicant’s arrest on the 16th June 2006 and the criminal trial which ended in his conviction on the 5th August 2009. He recognises this was a very complicated prosecution which required detailed investigation by the authorities and the defence and that the trial took place within a reasonable time given the nature of the case. He also accepts that the complex web of transactions, foreign based companies, bank accounts and the like are essentially the responsibility of the applicant who chose to conduct his affairs in this way, thereby creating the inevitable complications which the authorities had to resolve. Neither does he make any complaint about the length of time the judge took to issue (by e mail) his draft judgment following the close of submissions on the 2nd July 2014. Following those submissions, the judge asked for clarification of a number of matters and received further written submissions in December 2014. He issued his draft judgment on the 13th March 2015 and handed down his corrected and final version on the 17th April 2015, on which date he made the confiscation order. This is a lengthy period but Mr Stuart very fairly accepts that this was a mammoth task for the judge and he does not invite us to take that period in to account.

[15]Bearing in mind this is a permission application only, we do not propose to set out in this judgment each and every stage of the history of the progress of this case. Suffice to say, we are satisfied that the judge ensured that the court remained in control of that progress, complying with the statutory requirements and granting postponements and adjournments only when he felt they were justified and accorded with his statutory powers. Detailed chronologies appear in annexe B of the grounds of appeal and in the Respondent’s notice of opposition.

[16]Nevertheless, at first sight, a period of 5 years and 8 months between conviction and the making of the confiscation order is unusual and merits careful examination by this court, particularly when bearing in mind the normal period envisaged by the statutory scheme.

[17]In Piper, The ECHR stated as follows (at para 50) “The reasonableness of the length of proceedings in criminal as in civil cases must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court’s case law, in particular the complexity of the case, the conduct of the applicant and the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see, amongst many other authorities, Price and Lowe v. United Kingdom, nos. 43185/98 and 43186/98). In giving due weight to the various aspects of a fair trial guaranteed by Article 6, difficult decisions have to be made by the domestic courts in cases where these aspects appear to be in conflict. In particular, the right to a trial within a reasonable time must be balanced against the need to afford to the defence sufficient time to prepare its case and must not unduly restrict the tight of the defence to equality of arms. Thus in assessing whether the length of proceedings was reasonable, particularly in a case where an applicant relies upon the court’s responsibility to take steps to advance the proceedings, this Court must have regard to the reasons for the delay and the extent to which delay resulted from an effort to secure other key rights guaranteed by Article 6 (see Beggs v. the United Kingdom, no. 251133/06).”

[18]Mr. Stuart submits that a common failure by the Crown is to await conviction before commencing detailed investigations in to matters which will form the basis of confiscation proceedings. Such delay, he argues, inevitably lengthens the proceedings, sometimes to the potential prejudice of the defendant. We reject this submission. The Crown is entitled to have regard to the particular circumstances of each case. In a case such as the present, where the criminal trial was of such complexity that it took 10 weeks before verdicts were reached, it would be extremely wasteful of limited resources for such detailed investigations to be undertaken before a guilty verdict is recorded. In the event of an acquittal, the expenditure both in time and money would be completely wasted.

[19]The judge had originally timetabled the confiscation hearing to begin in August 2011. The hearing did begin, but did not progress to a conclusion because material that it was hoped would be forthcoming as a result of letters of request made to authorities in both Spain and, later, to the United States, had not borne fruit and it was submitted on the applicant’s behalf that he could not have a fair trial in the absence of such material. The judge, obviously mindful of his duty to afford the defence sufficient time to prepare its case, agreed to adjourn until the material became available. Mr. Stuart makes two concessions in relation to this stage of the proceedings. First, he fairly concedes that had the case progressed to a conclusion in August 2011, his submissions in respect of delay would be unarguable. Secondly, he recognises and agrees that had the judge pressed on with the case at that time and reached conclusions adverse to the applicant, he would have sought to appeal to this court relying on the alternative submission that the applicant’s other key rights under Article 6 had been denied by reason of the judge refusing to afford the defence sufficient time to investigate and prepare its case. He also recognises that although further applications were made to vacate future trial dates because of the unavailability of leading counsel for the applicant, the judge did not delay the case for such reason. Further delays were brought about, not because of the dilatoriness of the Crown or the court, but because of the failure of foreign authorities to respond within a reasonable time (or in some cases at all) to the letters of request. This leads to Mr. Stuarts third submission; that the English court must be held, so to speak, vicariously liable for the delays which are the responsibility of the foreign authorities in receipt of the letters of request. We have no hesitation in rejecting such a submission in the particular circumstances of this case. Letters of request are precisely that. They are essentially dependent on amity between nation states and in our judgment it would be wholly inappropriate and wrong in law on the facts of this case to seek to hold the courts of the issuing country responsible for delay which is wholly the responsibility of the recipient authority. We are not to e taken as laying down any hard and fast rule in this regard. Lack of action by the Crown or a failure by the court to monitor proceedings, thereby extending the delay arising from a lack of response by the recipient of letter of request, might well contribute to an arguable breach of Art.6.1. But this is not such a case. The Respondent pressed the judge to progress the case and abandoned further attempts to obtain information by this route. The judge also kept the proceedings under review adjourning only to allow the applicant further time to obtain information helpful to his case.

[20]In any event, given that the judge was concerned, as we have said, with a lifestyle case which necessitated him considering the assumptions in section 10 of POCA, he considered whether the delay which he recognised had taken place might lead to a serious risk of injustice if he made an assumption in each and very circumstance where the issue arose. In the event, he found that the applicant’s evidence did not displace the assumption. He had, as he said, kept it “fully in mind.” (Judgment p.9).

[21]In Piper, the ECHR found that a cumulative delay of three years which could properly be attributed the State during a longer period of 11 years for which the State was not responsible, amounted to a breach of the applicant’s Art. 6 rights to a hearing within a reasonable time. During argument, Mr Stuart was asked what period of time he sought to attribute to the Respondent in this case. He again, very fairly, accepted that the vast majority of the delay upon which he relied was attributable to the dilatoriness of the foreign authorities who were the recipients of letters of request. Having rejected as we have, the notion that the English court can be held responsible for such delays, we are driven to conclude that this submission in relation to delay is unarguable. We are satisfied that the judge, here, was alert to the applicant’s rights both to a hearing within a reasonable time and ensuring that the defence had sufficient time and opportunity to investigate and prepare its case. In other words, he carried out the very balancing exercised required by the ECHR in Piper.

[22]He also took full account of such delay as had occurred and the potential it might have had to affect the recollection of the applicant. We, accordingly refuse the application for leave in respect of alleged unreasonable delay. Each case is fact specific. This was a far more complex case than Piper and such delay as did occur was, in our judgment, reasonable in the circumstances and did not arguably breach the applicant’s Art.6.1 rights.

[23]In his second ground of appeal, Mr Stuart submits that the judge failed to provide that the confiscation order should not be enforced to the extent that part of an available asset may have been recovered by way of satisfaction of another confiscation order made in relation to the same joint benefit, relying on Ahmad and Fields

[2014] UKSC 36

. But here, the judge was dealing only with this applicant. When challenged, Mr Stuart was not able to give us any specific details but assured us that confiscation orders had been made in respect of other fraudsters, such as Woolley and Morris, with whom the applicant has been involved in money laundering. On the evidence before the judge, others were undoubtedly involved with the applicant in money laundering activity. But as emerged during argument, this submission confuses joint benefit with joint interest in a particular asset. Judge Atherton was concerned only with this applicant’s benefit from his general criminal conduct, not with the criminal benefit of others. He said (at page 121):

“I am conscious that the ledger is headed with the names of the three… [Woolley, Morris and the applicant] but that confiscation is sought against only one of them, Mr Evans. The role of Paul Morris appears to have been lesser than the other two but in my view all three were intimately connected with the offence of money laundering. The consequences of such a joint interest (italics ours) are that an order can be made against one of the participants.”

[24]As the single judge observed, no specific amount attributable to others has been identified. We do not consider that it is arguable that it was necessary or appropriate for an Ahmed proviso to be inserted in the order made by the judge. If an asset identified by the judge as available to satisfy this confiscation order turns out to have already been exhausted or reduced in value because of a separate confiscation order made in respect of another individual who has been adjudged to have had a joint interest in the same asset, this is a matter to be resolved during enforcement proceedings. We refuse leave on this ground.

[25]In his third ground of appeal, Mr Stuart challenges a number of findings by the judge in respect of certain identified assets. He concedes that he has a difficult hurdle to surmount because these are all findings of fact by the judge and this court could only interfere if there was no evidential basis for a particular finding or the judge’s conclusion was otherwise irrational. He did not pursue all of the items set out in his grounds of appeal, in particular item 47, Busirus Limited. He no longer seeks to challenge the judges’ finding that the applicant continued to hold shares in this company, at least until January 2002, and that the purported transfer to Kenyon was a sham. The function of Busirus Limited was, on the judge’s findings, to hold shares in Plegamans Trienta SL. It acquired two properties; La Zagaleta (C2-20) and Cuesta de Ronda. Both had previously been owned by Nugan Espanola. After these purchases had been made, Busirus acquired the shares of Plegamans. Large payments were made from Busirus to Plegamans, funded from an account recorded in a ledger of which the applicant was a party along with Woolley and Morris. This money, which seems to have come from Hong Kong, was undoubtedly the proceeds of criminal activity, originating from MTIC frauds.

[26]Mr Stuart argues that as it was the Crown’s case that Busirus was later transferred to an individual called Olivier Piret, on or about the 11th January 2002, it follows that the payment on the 22nd January 2002 (£192,947.90) was for the benefit of the then owner of Busirus and not attributable to the applicant. Further, as the judge proceeded on the basis that the applicant continued to have an interest in Busirus after the 11th January 2002, his findings against the applicant in respect of both Plegamans and Lation Island SL cannot stand. There was also documentary evidence supporting the transfer.

[27]In his evidence, the applicant denied any knowledge of Lation Island SL, incorporated in September 2002, to which entity the properties purchased by Plegamans (La Zagaleta and Plot 2 Cuesta de Ronda) were transferred for a similar consideration.

[28]This argument ignores the judge’s consistent finding throughout his judgment that whatever may be stated in a particular document or ledger, the applicant was in reality the person controlling these various transactions which were essentially designed to disguise his actual interests and to deceive the authorities. He may have denied under cross examination that he had anything to do with the ledger in question, but the judge obviously did not believe him, which is hardly surprising given the very large payments made from this ledger to Plegamans. The judge made a specific finding to that effect in relation to Lation island. He says, at page 50 of his judgment in respect of dealings with the properties C-20 la Zagaleta and Plot 2 Cuesta de Ronda, “I am satisfied that the transactions were intended by [the applicant] to try and hide his ownership of them.” In respect of Lation island, it was the Crown’s case that, anticipating his arrest (Woolley having already been arrested), these transactions were simply further steps taken by the applicant to disguise the provenance of such assets and divert attention from himself. The transactions seem otherwise commercially pointless. They illustrate the applicant’s well rehearsed propensity to use mainly foreign companies to hide the proceeds of crime and to try and divert the attention of the authorities. The judge did not accept his evidence. He said that he was “satisfied that [the applicant] was at the heart of these transactions and that he benefited from them.”

[29]Similar considerations apply to other items raised in the grounds of appeal. In respect of item 53 – monies to Jardin de Escalonias, it is submitted that there was no evidence to connect the applicant to this company in respect of €300,097.93 transferred from the Nunez account. This, in our judgment, is an overstatement. It was agreed that this was part of a larger sum originating from the proceeds of an MTIC fraud via the Woolley/Evans/Morris ledger through which the proceeds of crime which funded Deans Green Hall was laundered. Although the ledger, as the judge accepted, was headed with the names of the three defendants, he found that all three were intimately connected with money laundering. He also accepted that the onward transmission of money could not be shown, through tracing, to have gone to the applicant. But he nevertheless specifically found that the applicant was in control of the funds in that ledger and that funds from that ledger were used in the purchase of Deans Green Hall. The judge said (at p.122) “my assessment [is] that in order to achieve that transaction, he must have had considerable if not sole control.” The judge did not accept that this was a company solely under the control of Woolley. In our judgment, this was a finding open to the judge on the evidence.

[30]In relation to all the items Mr Stuart raised with us, with the exception of item 41 to which we shall turn later, the same considerations apply. The findings of fact made by the judge were open to him on the evidence. It was for him to assess that evidence and on our examination of the material before him it is not arguable that he fell into error in either applying the burden of proof or in the conclusions to which he came. As the single judge observed, his approach was in accordance with the law, cautious and measured.

[31]Item 41 relates to the balance owing on a loan made to John Bower of £20,000 which almost pales in to insignificance given the size of the confiscation order. Mr Stuart’s submission is very straight forward. He submits that as the recovery of this loan is now time barred, for all practical purposes it is irrecoverable and should not have been included in the applicant’s assets. Of course, as a matter of law, this debt still exits. The limitation period, if pleaded, bars the remedy, not the right. But Mr. Stuart argues that any proceedings to recover this sum would inevitably be met with the limitation defence. He relies on R v.Najafpour

[2010] 2 Cr App. R. (S) 38

. The judge sought to distinguish Najaafpour. There may well be circumstances in which a debt can be recovered, lawfully, other than through legal proceedings. The judge found in all the circumstances, which included the history of the applicant’s dealings with Bowyer, whose position as reported by the management receiver,” fluctuated,” that the applicant could be expected to take such steps as he could to recover the debt even if legal proceedings were not available to him. No evidence was called from Bowyer. The originals loan was in the sum of £215,000, so the bulk of it had been repaid by one means or another.

[32]Again, we do not think it appropriate to grant leave in respect of this comparatively small item. The judge was in the best position to decide, even if the debt proves to be time barred, whether there was a sufficient prospect of the balance of the loan being recovered and so deciding that it should fall to be considered as an asset of the applicant.

[33]We are grateful to Mr Stuart for his focussed submissions. They were put attractively and with appropriate concessions, but we must refuse this renewed application. We do not find any arguable grounds for granting leave to appeal.