Serious Organised Crime Agency v Olden [2009] EWHC 610 (QB)

[2009] EWHC 610 (QB)Case No HQ07X04240
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/03/2009
Before
MR JUSTICE HOLROYDE
Between
SERIOUS ORGANISED CRIME AGENCYApplicantRONALD OLDENRespondent
MR KENNEDY TALBOT (instructed by SOCA Legal Dept) for APPLICANTMR IVAN KROLICK (instructed by MJP Justice Ltd) for RESPONDENTHearing Hearing dates: 19 th, 20 th, 21 st, 22 nd, 23 rd, 26 th& 27 th January, 2009
Judgment
[1]This is an application by the Serious Organised Crime Agency (“SOCA”) brought under Part 5 of the Proceeds of Crime Act 2002 (“POCA 2002”) for a Recovery Order in relation to property which is alleged to be, or to represent, the proceeds of the unlawful conduct of the Respondent (“Mr Olden”).[2]The application relates to the following property:a. Real property at Flat 4, Plas Dyffryn, Parc y Bryn, Aberystwyth (“4 Plas Dyffryn”) and 1 Side Street, Penparcau, Aberystwyth (“ 1 Side St”);b. The current balances in 2 National Westminster bank accounts held by Messrs Bishop & Light, solicitors who previously acted for Mr Olden;c. A residential caravan at Aberystwyth Holiday Village;d. A Mitsubishi Shogun car, Y104 ENN; ande. The proceeds of sale of a Mazda car, CU52 XPA.[3]Mr Olden was born on the 14th December 1956. He has in the past worked for firms of accountants, and also on a freelance basis, dealing with tax returns and other taxation matters. He is knowledgeable about such matters, and is clearly an intelligent and articulate man. However, whilst working as a tax senior for a firm called Simpson Wood in Yorkshire he was also dishonestly claiming benefits: he lost his job when this was discovered on 30.11.93, and he was prosecuted for 4 offences of making a false statement or representation in order to obtain benefit. On 06.06.94 he was convicted of those offences and made subject to concurrent community service orders. In accordance with the Rehabilitation of Offenders Act 1974, those convictions became spent on 06.06.09 At an earlier stage of this trial I ruled, having heard submissions, that SOCA were entitled to adduce those convictions in evidence, and to rely upon them. I ruled against SOCA in relation to an earlier conviction.[4]Mr Olden was then declared bankrupt on 17.03.98. The petitioner was the Royal Bank of Scotland, and the relevant debts – which dated back to 1994 - related to bank accounts and a House Purchase Loan Account. Royal Bank of Scotland issued on 22.10.97 a statutory demand for a total of £26,258.77, but it appears that much of that debt related to a secured loan and RBS proved for £5035.97 in the bankruptcy. Mr Olden said in evidence that he was no longer living in the relevant property at this time, having handed the keys back to RBS and moved to the Birmingham area, and he says that he was declared bankrupt in his absence because the documentation was sent to an address at which he was no longer living. He also gave evidence that he had not been sure precisely how large his debt was, but thought it was in the region of £10,000. The result was that in the spring of 1998 Mr Olden was unemployed and bankrupt.[5]Mr Olden began using 3 false identities: Trevor Paul Ellis b31.08.55, Martin Dubrey b13.06.60, & Terence Leslie Batters, b27.10.55. In each case he adopted the identity of a real person, with a date of birth not much different from his own. The real Trevor Paul Ellis died at the age of 14, having suffered all his short life from muscular dystrophy. He had lived in Aberdare, close to a school in that town which Mr Olden attended when he was a child. Mr Olden claims that is a coincidence which was unknown to him until these proceedings: it would be a remarkable coincidence indeed if that were so (particularly since he said in evidence that this false identity was provided to him by a friend called Ellison who has no connection with Aberdare), and I do not believe him. The real Martin Dubrey lived only 2 days. The real Terence Leslie Batters is alive. Mr Olden obtained identity documents: a passport in the name Ellis (the application form for this being dated 05.09.98 and countersigned by Paul Cooper, who claimed to have known Ellis for 15 years); a passport in the name Dubrey (this application form being dated 13.04.99 and countersigned by Brian Jones, who claimed to live at 104 Gainsborough Rd and to have known Dubrey for 22 years); and a driving licence in the name of Batters. After a time the real Mr Batters encountered difficulties which led to his discovering that someone had been using his name, and after making his own enquiries he got in contact with a Mr Webb, who is employed in the investigations unit of the parent company of Bristol & West. Mr Webb made further investigations, and alerted the police.[6]A police investigation then began, and led to a prosecution of Mr Olden. There is a substantial issue in these proceedings as to whether SOCA should be permitted to use evidence which came to them from the police investigation. I consider that issue below, but before I can do so it is necessary first to outline what the police investigation revealed.[7]During the period when he was using the false names, and when he was still unemployed, Mr Olden carried out a large number of property transactions – not one of them in his own name. A schedule prepared by SOCA lists 45 transactions, involving 20 different properties, in just over 6 years. The 20 properties concerned were 24 Treharne St, Treorchy (“Treharne St”); 57 Rushton Rd, Woolwich (“Rushton Rd”); The Garden Flat, 104 Edward St, Brighton (“Edward St”); Flat 3, 17 Upperton Gardens, Eastbourne (“Upperton Gdns”); 104 Gainsborough Rd, Hayes (“Gainsborough Rd”); 49A Tower Bridge Rd, Southwark (“Tower Bridge Rd”); 846 Llangyfelach Rd, Swansea (“Llangyfelach Rd”); 74 Upper Adare St, Pontycymmer (“Adare St”); 63 High St, Treorchy (“High St”); 36 Heol Glyn Coch, Rhonnda (“36 HGC”); 30 Kimberley Way, Glynfach Porth (“Kimberley Way”); 22 Llys y Brenin, Aberystwyth (“Llys y Brenin”); 3 Hirwaun Place, Tylorstown (“Hirwaun Place”); 13 Pavia Court, Pontypridd (“Pavia Court”); 4 Chandlers Court, Pontypridd (“Chandlers Ct”); 1 Mayfair Court, Haselour Rd, Solihull (“1 Mayfair Ct”),; 27 Llys Gwyn, Swansea (“Llys Gwyn”); 69 Fairview Court, Pontypool (“Fairview Ct”); 4 Plas Dyffryn; and 1 Side St.[8]In order to make these transactions Mr Olden, using his false names, took out many loans by way of mortgages. In the relevant application forms he gave false details of himself, including false details of his supposed employment. Having bought a property in one false name, Mr Olden in many instances then sold it to himself in another false name. Mr Olden in his evidence referred to these transactions as “transfers into another name” as if they were neither unusual nor significant. I find them to have been sham transactions, the purpose and effect of which was to enable him to take advantage of the rising property market by in effect remortgaging the property concerned and drawing off the available equity for use in other purchases.[9]By August 2004 the police investigation was well advanced. DC Phillips – an officer of the South Wales Police, who was based in Cardiff - was the officer effectively in charge of, and for the most part conducting, that investigation. He was aware of the connections between the names Ellis, Dubrey & Batters. He was aware of virtually all of the relevant property transactions: ignoring for obvious reasons 2 purchases which were made after the arrest, the only properties of which he was not yet aware were those at Treharne St and Gainsborough Rd; but he had in hand enquiries – including of the Land Registry and solicitors – which SOCA contend would undoubtedly have led him to discover the remainder.[10]On 5th August 2004 DC Phillips travelled to Aberystwyth, in order (as he put it) “to arrest a person involved in an allegation of multiple mortgage fraud”. He went to 1 Side St, and found a carpenter working there who said he was working for Mr Ronald Olden. From him, he acquired a mobile phone number for what was in fact Mr Olden’s phone. At that stage, DC Phillips thought Olden was another alias. The carpenter directed him to Llys y Brenin: Mr Olden was not there, but parked outside the house was the Mitsubishi Shogun, Y104 ENN. DC Phillips then returned to 1 Side St, where the carpenter assisted him to ring Mr Olden’s mobile phone. When DC Phillips rang from his own phone, he got no reply; but he then tried using the carpenter’s phone, and this time the call was answered by Mr Olden, who gave that name. There is a dispute between DC Phillips and Mr Olden as to what exactly was said in this phone conversation. I accept the evidence of DC Phillips that Mr Olden was not willing to see him that day or to disclose where exactly in Aberystwyth he was. For that reason, and for that reason alone, DC Phillips was unable to make the arrest which he had intended to make when he travelled to Aberystwyth. DC Phillips therefore returned to Cardiff, but he left the Aberystwyth police (who are members of a different force from his own) with a request that they should arrest Mr Olden if they saw him. In addition, he took possession of a wallet which had at an earlier date been found in the street and handed in at Aberystwyth Police Station. This was a very significant item, because it contained bank cards, membership cards and the like in all 4 relevant names: Olden, Ellis, Dubrey and Batters.[11]Later on that same day, the 5th August 2004, a PC Lodwig was on patrol in Aberystwyth when he spotted the Mitsubishi, which had been mentioned to him and his fellow officers in a briefing at the start of the shift. He arrested Mr Olden for multiple mortgage fraud.[12]This arrest was reported to DC Phillips, and early the next morning he and Detective Sgt Forsyth drove from Cardiff to Aberystwyth, where Mr Olden had been kept in custody overnight. They were given authority pursuant to PACE s18 to search the car, and they found a briefcase which contained documents relating to the property transactions, relevant bank accounts and the like. They drove Mr Olden back to Cardiff and there interviewed him in the early evening. SOCA seek to rely on what was said by Mr Olden in those interviews as a plain admission of his dishonesty. There is a challenge on Mr Olden’s behalf to the admissibility of any of that evidence, and of the evidence subsequently found as a result of what Mr Olden had said in interview.[13]Mr Olden was charged with offences of obtaining by deception property, money transfers, and services, and stood trial in the Crown Court at Newport. Mr Krolick represented him at that criminal trial, and made an unsuccessful challenge to the admissibility of evidence of the arrest, search and interview. A number of counts on the indictment were the subject of submissions which caused the learned trial judge to direct verdicts of not guilty, but the majority of the counts went to the jury and on the 7th and 8th February 2006 the jury returned guilty verdicts on 22 counts. The offences of which he was convicted related to his obtaining by deception of the false passports and driving licence, mortgage advances, and the use of 2 bank accounts. Mr Olden was sentenced on 04.04.06 to terms of imprisonment totalling 4 years.[14]He appealed against his convictions, contending through Mr Krolick that his arrest, and the subsequent search and interviews, were all unlawful. The basis of the submission was – as it had been at the trial - that the terms of s24 of the Police and Criminal Evidence Act 1984, and the authority of the House of Lords decision in O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] 1 Cr App R 447, required that an arresting officer must himself personally suspect the person he is arresting and must have reasonable grounds for that suspicion. PC Lodwig had not said in evidence that he believed or suspected that Mr Olden had committed the offences for which he was being arrested: PC Lodwig was acting on orders, and the Court of Appeal having analysed the evidence concluded that the evidence did not justify the trial judge’s finding that the officer had the necessary suspicion. On 09.03.07 the Court of Appeal (Criminal Division) therefore allowed the appeal and quashed all convictions. Dyson LJ, giving the judgment of the court, said this at paras 26-27:
“We conclude that the judge did not address his mind to the question of PC Lodwig’s state of mind, and that had he done so he should have concluded that he did not have material on which to find that PC Lodwig had the necessary suspicion. It follows in our view that the arrest was unlawful and that the interview and searches that resulted from the arrest were also unlawful. Since the material that was discovered by the police in the interview and by the searches was of considerable importance in the case, the appeal must succeed.”
[15]It should be noted that at paragraph 10 of the judgment the court observed that DC Phillips did suspect Mr Olden of being the perpetrator of the apparent mortgage frauds, and added “There seems to be no question but that DC Phillips had reasonable grounds for his suspicion”. The court went on to deal with other points that had been argued on the appeal, although it was not strictly necessary to do so, and said amongst other things that if PC Lodwig had suspected that Mr Olden had committed the offences, the court would have decided that he had reasonable grounds for doing so. The court also held that on the evidence before the jury, the trial judge had been correct to find there was a case to answer, adding – “Indeed, in our view it was a strong case”.[16]To complete my summary of the chronology of the events relevant to the issue of admissibility, there was then a referral by South Wales Police to the Assets Recovery Agency (“ARA”, which later became SOCA, nothing turning on that change). SOCA commenced Part 8 civil proceedings on 07.05.08: the Claim Form, as subsequently amended, indicated that full details of the claim were set out in statements dated 30.01.08 and 18.04.08 by SOCA’s investigator Miss Holly O’Brien, who gave evidence before me. At the start of this trial, and after hearing submissions on both sides, I gave permission to SOCA to rely also on Miss O’Brien’s further statement of 12.01.09, which produced 2 convenient bundles of core documents relating to the property transactions. There had been objection to the late service of these bundles, but it seemed to me when I gave permission that no significant difficulty and no unfair prejudice would be caused to the Respondent; and that remains my view now that I have heard all the evidence. Indeed, it turned out that there was really very little challenge at all to the contents of these 2 files, even the comments of Miss O’Brien being substantially accepted subject to the competing submissions in the case.[17]There were several procedural hearings before eventually the matter came on for trial before me. One matter considered during those hearings was whether the issue of admissibility should be dealt with separately in advance of the hearing, and in that connection Miss O’Brien’s witness statement of 30.01.08 was amended to include her evidence as to when, and how, particular facts came to be known to the police. Before me, the parties were agreed that I should determine this issue after I had heard all the evidence. I do not think it necessary to say anything more about the procedural history.[18]It is however important to mention that a restraint order had been made in the criminal proceedings. That came to an end when the criminal proceedings were ended in Mr Olden’s favour, but it was quickly replaced with a property freezing order in these civil proceedings. The Bishop and Light bank accounts were established during the period of restraint orders, with a large proportion of the funds which went into those accounts coming from an Abbey National account which Mr Olden had held in the name of Batters, and other funds coming from other accounts which he had held in his various aliases and which had been restrained under the criminal restraint order. For convenience I will where appropriate refer generally to “the bank accounts” and “the restrained accounts”, as it is generally unnecessary to be more precise about individual accounts.[19]Against the background of that outline, I turn to consider the substantial issue as to the admissibility of much of the evidence on which SOCA rely.[20]Mr Krolick’s submission on this issue is encapsulated as follows in the opening paragraph of his skeleton argument:
“The Respondent’s case is that information and documents passed to the Claimant by the South Wales Constabulary, and any extracts of evidence at the criminal trial of the Respondent which is relied on by the Claimant, should be excluded as evidence in the trial, on the grounds that such information and documents was acquired by the South Wales Constabulary as a result of, and consequential to the unlawful arrest of the Respondent on 4th August 2004, and accordingly its retention by the police, and its use by the Claimant is unlawful, and in breach of the Respondent’s Human Rights. ”
[21]Thus his first submission is that as a matter of principle evidence which should not have been given in the criminal proceedings, should not now be given in a civil trial concerned with the same issues. To do so, submits Mr Krolick, would expose the administration of justice to ridicule. I shall refer to that submission as the broad ground on which the admissibility of much of SOCA’s evidence is challenged.[22]In addition, Mr Krolick relies on a further, narrower reason for excluding evidence of what was said by Mr Olden in interview, and of evidence obtained consequential to the admissions he made. Mr Krolick relies for this narrower ground on what he contends was conduct by the police (and in particular DC Phillips, who gave evidence before me) which “was calculated to put unreasonable pressure on Mr Olden so that he would be more amenable to answering interview questions”. He submits that, even if his broad ground fails and the evidence is not to be excluded simply because it was unlawfully obtained by the police, it should nonetheless be excluded on this narrower ground.[23]In relation to his broad ground, Mr Krolick submits that it would matter not whether the arrest, search and interview were unlawful for reasons which might be regarded as technical, or unlawful because (to take a hypothetical example) the police had resorted to outrageous physical violence: he submits that there are no grades or degrees of illegality. The court has the power under CPR Part 32.1 to exclude evidence which would be otherwise be admissible, and he submits I should exercise that power because it would be unfair, oppressive, and a breach of Mr Olden’s rights under Article 6, Article 8 and Article 1 of the First Protocol to, the ECHR, to permit SOCA – a public authority closely linked to the police, and deriving the material from the police – to use material unlawfully obtained by the police. These submissions were developed at length in written and oral argument, but I hope the above brief summary sufficiently encapsulates them.[24]Mr Talbot in reply emphasised that SOCA is distinct from, and independent of, both the police and the CPS. He submits that all relevant evidence is admissible, and that the circumstances here do not require the court to exercise its discretion to exclude any of it. He helpfully took me to a number of authorities.[25]The general rule in English law is that relevant evidence is admissible, regardless of how it may have been obtained. That principle has been well established in both criminal and civil cases for a long time: see eg Kuruma v The Queen [1955] AC 197, and R v Sang [1980] AC 402. Both those cases recognised that in a criminal trial the judge always had a discretion to exclude evidence if its admission would be unfairly prejudicial to the accused, and of course the Police and Criminal Evidence Act 1984 now makes specific provision in that regard in sections 76 and 78. The development of the law is conveniently summarised at para 26 of the judgment of Longmore LJ in C plc v P [2008] Ch 1.[26]In civil cases, there is no directly corresponding statutory provision. That there is nonetheless a discretion to exclude evidence if its admission would dishonour the administration of justice, or compromise the integrity of the judicial process, was recognised by Lord Hoffman at para 87 of his speech in A v Home Secretary (no 2) [2006] 2 AC 221 at p280. Mr Talbot conceded, in my view rightly, that the discretion would also extend to excluding evidence if its admission would give rise to a breach of a litigant’s right to a fair trial under Article 6. But, he submitted, the circumstances here were not such as to require the court to exclude any of the evidence.[27]Mr Krolick submits that quite apart from the discretion confirmed in A v Home Secretary (no 2) there is a wider basis for the exclusion of evidence, because CPR 32.1(2) permits the court to use its power under that rule “to exclude evidence which would otherwise be admissible”. That rule, he submits, means that it is no longer sufficient simply to say that in civil proceedings the court is not concerned with where evidence has come from. He points to the decision of the Court of Appeal in Jones v University of Warwick [2003] 1 WLR 954, a case in which an inquiry agent acting for insurers had gained access to the claimant’s home by deception and filmed her without her knowledge or consent. The court referred to the conflicting public interests which arose in the circumstances: on the one hand, that in litigation the truth should be revealed; and on the other hand, that the court should not acquiesce in, let alone encourage, the use by a party of unlawful means to obtain evidence. At para 24 Lord Woolf CJ said that fortunately, “courts can now adopt a less rigid approach to that adopted hitherto which gives recognition to the fact that there are conflicting public interests which have to be reconciled as far as this is possible”. Mr Krolick submits that it is in accordance with the overriding objective for the court to exclude evidence which has been obtained unlawfully (whether directly or indirectly) or, where the party concerned is a public authority, where the obtaining or use of the evidence did or would violate another party’s Convention rights.[28]POCA 2002 requires the court to make a recovery order if satisfied that any property is recoverable: see s266(1). The Act also specifically provides, in s240(2), that the court’s powers to make a civil recovery order are exercisable in relation to any property “whether or not any proceedings have been brought for an offence in connection with the property”. By s436, information held by the police “may be disclosed to the Director for the purpose of the exercise by the Director of his functions”.[29]I interject to note that the third of those provisions is, in my view, a complete answer to Mr Krolick’s initial submission (based on Marcel v Commissioner of Police of the Metropolis [1992] Ch 225) that the police acted unlawfully in passing to SOCA the contents of Mr Olden’s briefcase found when his car was unlawfully searched. Mr Krolick questioned whether s436 could extend to information which had been obtained unlawfully. In my judgment it can, at any rate in the circumstances of this case, because for the reasons which follow the Director may proceed even where criminal proceedings have failed, and may rely upon evidence which is admissible in the civil proceedings even though it was unlawfully obtained by the police and for that reason was ruled inadmissible in criminal proceedings.[30]Taken together, those three statutory provisions clearly contemplate that SOCA may seek, and the court grant, a recovery order even though the respondent has either not been prosecuted or has been prosecuted and acquitted; even though the criminal and civil proceedings raise similar issues; and even though the evidence relied upon in the civil proceedings is the same as, or includes, the evidence used in the unsuccessful prosecution. There is therefore built into the statute the prospect that there may be different outcomes to criminal and civil proceedings founded on the same evidence and allegations. That is clear from cases such as R (on the application of ARA) v He & Chen [2004] EWHC 3021 (Admin), and R (on the application of ARA) v T [2004] EWHC 3340 (Admin).[31]Moreover, it is important to emphasise that, as is clear from the decision of the Court of Appeal in Olupitan v Director of ARA [2008] EWCA Civ 104 (a case in which Mr Krolick appeared for Mr Olupitan), the Director of SOCA is not to be equated with the Crown as prosecutor. The Director is independent, with a different role and powers conferred by the POCA 2002 which exist regardless of criminal proceedings.[32]I do not accept Mr Krolick’s submission that exclusion of the evidence from the civil proceedings must follow inevitably from a finding in the criminal courts that it was unlawfully obtained. In my view, the decision whether to exercise the court’s power in civil proceedings to exclude evidence which would otherwise be admissible must depend upon an assessment of the circumstances of those proceedings. The court must balance competing considerations: on the one hand, the public interest in the court considering all relevant evidence; and on the other hand, the need to avoid a disproportionate interference with the rights of an individual. I cannot accept Mr Krolick’s submission that it is all one whether the unlawfulness consisted (at one extreme) of a simple error leading to an unwitting breach of a statutory requirement, or consisted (at the other extreme) of a deliberate, flagrant and outrageous assault upon a suspect. Nor can I accept his further submission that it is irrelevant whether the unlawfully-obtained evidence provided the only possible foundation for the case, or whether the evidence might equally well have been obtained by lawful means.[33]I derive support for my views from the note at paragraph 32.1.4 of the current edition of the White Book. This is to the effect that there is no express limitation on the exercise by the trial judge of the power under 32.1(2) to exclude evidence, but it must be exercised in accordance with the overriding objective of dealing with the case justly. Where it is argued that evidence has been obtained in breach of an ECHR right, there is no rule under the ECHR requiring the exclusion of such evidence, but the court must act in such a way as to ensure that the proceedings as a whole are fair. I believe the views I have formed and the approach I have taken are consistent with that note.[34]I therefore turn to the evidence before me bearing on this issue.[35]In his written witness statement, Mr Olden made serious allegations against DC Phillips. In summary, he accused DC Phillips of giving false evidence, and alleged improper reasons for taking Mr Olden from Aberystwyth to Cardiff and for the withholding of certain medication and of food. He also alleged an improper financial motivation, claiming (p157) to have seen “a letter from DC Phillips to the CPS in which he urged them to bring a prosecution against me on the grounds that there would likely be a substantial confiscation order, of which the South Wales Police Force would receive half. The letter was dated prior to the car journey”. These allegations concluded in a ringing assertion in his statement at p189 of the trial bundle: “South Wales Police Fraud Squad in the person of Phillips is content to engage in abuse of process, perjury and illegal conduct of its own in the pursuit of money”.[36]When it came to oral evidence, those allegations for the most part fell away. Mr Olden said that the long journey and the lack of medication had caused him anxiety, but that the food had been a subsidiary issue, and he did not suggest he had been complaining of hunger. He agreed that he had not renewed his request for medication after the initial refusal, and no evidence was put before me even to show whether there was a prescribed frequency with which the relevant tablets were to be taken. DC Phillips gave evidence to the effect that there had come a stage, after arrest, when it was necessary to refer to the potential outcome of the case, and the possibility of a confiscation order in excess of £1 million, in order for him to justify the travel expenses involved in the further investigations he wished to make. That evidence was not challenged, the letter supposedly sent before arrest was never produced, and Mr Olden finally said that he had meant to refer to a letter written before charge rather than a letter written before arrest. He said that he had become mixed up over dates. That is a very unconvincing explanation in view of the transcript showing that in the criminal trial, in January 2006, Mr Krolick cross-examined DC Phillips about what seemed to me to be the same letter, and put in terms that it had been written in connection with travel in January 2005. In the end, Mr Krolick was left with a submission to the effect that DC Phillips had deliberately sought to make Mr Olden more amenable to answering questions in interview, and that the only reason for taking Mr Olden to Cardiff and denying him his tablet was to make it easier to interview him; but the evidential foundation for that submission had largely gone.[37]In any event, having heard both witnesses, I accept the evidence of DC Phillips on these matters. I accept his denial of the direct allegation that when they stopped for petrol Mr Olden had asked for a snack but DC Phillips had refused to get him one even though Mr Olden had money with which to pay. Although he could have made more enquiry into the requested medication, I do not believe he was motivated by any improper considerations when he declined to allow Mr Olden to take a tablet in the car. Nor do I believe he was motivated by any improper consideration in deciding to conduct the interview in Cardiff rather than Aberystwyth: he was not to know in advance that Mr Olden would make the wide-ranging admissions he did, and it was entirely possible that the interview would take a course which would require him to look at some of the many documents he had at his office. He accepted that a reason for going to Cardiff had also been that doing so would re-start the custody clock, but in my view there was nothing improper in his taking advantage of that consequence. There could not be any advantage to him in deliberately depriving his interviewee of food or legal representation. Finally, whilst I accept that there was no public transport from Cardiff back to Aberystwyth after an early stage of the evening, I do not think for one moment that was a factor which resulted in Mr Olden making admissions he would not otherwise have made.[38]Moreover, having read the interviews, I find nothing in them which suggests that Mr Olden felt himself to be under unfair pressure or felt (as he claimed) that he would have to be interviewed without a solicitor because the time taken to engage one might make him miss the last train home. On the contrary: at the very start of the interviews, when cautioned and asked to say why he had declined the services of a solicitor, he replied (at p393) – “Because at this stage I want to cooperate with yourselves as much as possible and I don’t see the need for a solicitor at this stage. However, I might need to speak to one later on.” In his evidence before me, Mr Olden said firmly that the answers he gave in interview were truthful, and if he got anything wrong it was only by genuine error.[39]In addition, it is relevant to note my observations of Mr Olden when he was not giving evidence during the trial. For much of the time no solicitor was present, and it was therefore necessary for Mr Krolick to check points, and take instructions, by direct communication with Mr Olden. I was able to see how quick Mr Olden was to give instructions whenever a point arose which he wanted to dispute, question or explain. The manner in which he did so confirmed me in my views that he was well on top of the detail of this case, and that he is not the sort of man to have remained silent if he thought he was being unjustly treated by the police at the time of his arrest and interview. His demeanour in the witness box led me to a similar conclusion.[40]In those circumstances I am satisfied that there is nothing in the treatment of Mr Olden, or the conduct of the interview, which renders the evidence of the interviews inadmissible. If the broad ground of challenge fails, the alternative narrow ground also fails. What is left, however, is the impact on Mr Olden’s general credibility of his retreat from the serious allegations against DC Phillips which he made in writing. I have considered whether I should simply view the relevant parts of the witness statement as an over-enthusiastic presentation of his case by a man acting to a significant extent in person (financial considerations limiting the use he made of his solicitors), and frustrated by facing these civil proceedings after his delayed success in the criminal proceedings. I do not take that view: Mr Olden in my view initially made what he must have known to be unfounded allegations, and then made a tactical decision to water down his criticisms in his evidence before me . In my view he took that decision solely because he had seen that DC Phillips had given convincing evidence and had concluded, rightly, that he would not be successful in any head-on challenge.[41]Going back to Mr Krolick’s broad point, there is of course no question but that the Court of Appeal (Criminal Division) were right to find that the arrest, search and interview had all been unlawful. But it is clear that at least DC Phillips, and in all probability colleagues working with him in the investigation, did suspect Mr Olden of mortgage frauds, and did have reasonable ground for that suspicion. Had DC Phillips made the arrest himself, it would have been lawful; and I accept his evidence that he would have made the arrest if he had been able to meet Mr Olden during his visit to Aberystwyth on the 5th August. It was, I find, Mr Olden himself who prevented such a meeting, by refusing to tell DC Phillips where exactly he was when they spoke by telephone. There has been no suggestion that he had any improper reason for returning to Cardiff later on that date and asking Aberystwyth police to arrest Mr Olden if the opportunity to do so arose after his departure. I am satisfied that there was no malicious conduct.[42]Moreover, it seems to me that – contrary to Mr Krolick’s submissions – it is highly relevant to consider whether the unlawful arrest, search and interview provided the police and prosecution with evidence which otherwise they would not, and could not, have had. The discovery of the documents in the briefcase, and the admissions which Mr Olden made in interview, were undoubtedly helpful to the police and saved them work. In particular, I accept that it was the admissions made in interview which prompted DC Phillips to investigate Mr Olden’s bankruptcy at a time when he would not otherwise have done so. However, I accept the evidence of DC Phillips that he had already discovered most of the mortgage frauds, and already had in hand enquiries which in all probability would have led him to the remainder. It is to my mind a key feature of the case that all the transactions relied upon by SOCA involve one or more of the 3 false names, and that a number of the transactions involved sales from one false name to another. It is another key feature that before the arrest the police already had the wallet which plainly linked the 3 false names to the name Olden. Armed with that link, and working within the framework of transactions all involving the same names, it was in my view only a matter of time before the police discovered everything. Without in any way diminishing the hard work involved, it would simply have been a matter of routine detective work to uncover the evidence which had not already been obtained before 5th August: for example, DC Philips had in hand enquiries at the Land Registry which, by a search of the proprietors’ register, would surely have identified every property held in each of the false names. Of course the admissions made in interview enabled the police to focus their work thereafter, and cut down the amount of detective work which had to be undertaken; but I am satisfied that if Mr Olden had not been arrested on the 5th August, or having been arrested had declined to answer questions, the case against him would nonetheless have been completed.[43]It seems to me that Mr Olden himself was conscious that such was the position when he said in interview (at p490) that he had realised he had lost his wallet, and had assumed that the police would have learned his correct name from the contents of the wallet. I infer that he realised that, if his wallet were found and handed in to the police, it would only be a matter of time before his mortgage frauds were exposed. Hence, in my view, his stalling for time by refusing to cooperate in an immediate meeting with DC Phillips.[44]It seems to me that there is a clear distinction between the admission of evidence in criminal proceedings leading to imprisonment, and the admission of evidence in civil proceedings aimed at recovering property to which (if the application be made out) the respondent has never had any legitimate entitlement. I reject Mr Krolick’s submission that it would be inexplicable to admit in these proceedings evidence which has already been held by the criminal court to have been unlawfully obtained. In my view there is considerable force in Mr Talbot’s response, that what would bring the administration of justice into disrepute would be for evidence to be excluded in these proceedings merely because the wrong policeman had made an arrest which another officer could lawfully have made. I also reject Mr Krolick’s submission that to admit the evidence would be unfair or oppressive, or would be a disproportionate interference with Mr Olden’s human rights. I do not need to decide what the position would be if it were the police or the CPS who were seeking to rely on the evidence: SOCA is independent of both, and in my judgment is entitled to rely on all the evidence which has been put before me. I rule that all the evidence which Mr Krolick sought to exclude is admissible.[45]I therefore turn to consider the evidence as a whole.[46]For the Applicant, Miss O’Brien gave evidence about the property transactions and about her attempts to reconcile those transactions with entries in the several bank accounts which Mr Olden maintained in his false names. I accept her evidence to the following effect:a. Not very much money passed through the bank accounts in the name Olden, into which benefit payments were made. There was no challenge to her evidence on this point, and I infer from it that Mr Olden took deliberate steps to keep his assets in false names. That inference is strengthened by Mr Olden’s admission in evidence that the debt which led to his bankruptcy remains unpaid, despite the very substantial sums of money which have passed through his hands in the intervening years.b. She had identified as far as was possible the banking transactions referable to the property sales and purchases.c. She has not been able to identify any source of funds coming into Mr Olden’s hands except his benefit payments, the rental income he received from letting out his properties, the proceeds of selling properties, and winnings from gambling. She had not found any legitimate source of income since the date of Mr Olden’s bankruptcy in March 1998, and Mr Olden (who, I note, has not paid any income tax since 1996) had not given her any evidence of any such legitimate income. Thus whilst she could not say that the moneys paid into the bank accounts were necessarily the proceeds of mortgage fraud, she had not been able to find any legitimate source for those moneys.d. In addition to mortgage frauds, the only other type of deception which she could identify as possibly having been committed by Mr Olden was a failure to declare to the Revenue his income from freelance tax advisory work – if he did in fact receive any such income, as to which there was no evidence except what Mr Olden said.e. All the mortgages were repaid, largely uneventfully (she had seen some correspondence about arrears, but nothing which seemed to her significant).[47]Core bundle A contained in relation to each property a schedule summarising the relevant transactions. These schedules reflected the work of Miss O’Brien in researching the available documentation and the records of the bank accounts. There was no challenge to the accuracy of most of these schedules, though Mr Olden contends that they require qualification (as appears below) in relation to Treharne St, Gainsborough Rd and Side St. Subject to those possible qualifications I accept Miss O’Brien’s evidence in this regard, which for present purposes I can summarise as follows. I do not find it necessary to set out the false details provided in respect of each mortgage application but I will illustrate what was generally done by reference to the first few properties.a. Treharne St was bought for £23,000 on 25.03.99 in the name Ellis, with 95% of the purchase price being provided by a mortgage advance from the Bradford & Bingley. The vendor was Paul Cooper, who signed the Land Registry form TR1 to confirm that he had received £23,000 from Ellis. It was sold on 13.10.06, the proceeds of sale being paid into one of the restrained bank accounts. I refer below to the evidence Mr Olden gave about this property. On the Bradford & Bingley application form Mr Olden made the following entries: i. He gave the name and date of birth of Ellis. ii. He left blank the space marked “any other name(s) used in the last 5 years” iii. He said he was employed as an accountant by PCA Haulage at a salary of £30,800, and had been so employed for 9 years iv. In the section for monthly outgoings, he wrote (or caused someone else to write) “Nil” next to “loans/credit agreements” v. In response to the question “Have you experienced any financial difficulties such as mortgage or rent arrears within the last 3 years; bankruptcy …” he wrote “N/A”. vi. He gave a false NI number. vii. In a part of the form dealing with his application for building and contents insurance he ticked “No” in answer to the question “Have you ever been … convicted of … any criminal offence …”. viii. He produced as evidence of identification a passport in the name Ellis. The copy of the passport application form (p372) shows that he had fraudulently obtained this passport with the assistance of Paul Cooper. ix. He signed to confirm that the information he had given in this application was true. In fact, it was of course completely false. x. He supported the application with a letter purporting to come from PCA Haulage and to be signed by the company secretary Elizabeth Chope. This too was entirely false.b. Rushton Rd was bought for £42,000 on 17.06.99 in the name Ellis, with 80% of the purchase price being provided by a bridging loan from Cherry Tree Finance and the balance coming from one of the bank accounts. On 01.12.99 it was sold by Ellis to Batters for £48,000, 90% of which was advanced to Batters by Direct Line. On 22.08.01 Batters remortgaged the property to Bristol & West for £56,250. In his application to Bristol & West for this mortgage, in answer to the question “Have you ever … been made bankrupt?”, Batters ticked the “No” box. Finally, on 19.04.04 it was sold by Batters for £86,000 and the net proceeds of £23,894 were paid into one of the bank accountsc. Edward St was bought for £37,000 on 20.06.99 in the name Ellis, with 90% of the purchase price being provided by a mortgage advance from Abbey National and the balance coming from one of the bank accounts. The application form to Abbey National included the following:
“I have never been bankrupt. I have never had a court order for debt registered against me. I have never failed to keep to a credit agreement or had a property repossessed”
. On 18.08.00 it was sold by Ellis to Batters for £58,000, with Batters taking out an Abbey National mortgage for £55,100. This released to Ellis equity of £21,172, most of which was paid into one of the bank accounts. On 17.05.04 the property was sold by Batters for £126,000, and the net proceeds of £66,487 were paid into one of the bank accounts. d. Upperton Gardens was bought for £36,000 on 26.04.99 in the name Ellis: no details of the mortgage application are available. On 01.08.99 it was sold by Ellis to Dubrey for £45,000, 90% of which was a mortgage advance to Dubrey from Direct Line. On 06.07.01 Dubrey sold to Batters for £67,000, releasing equity to Dubrey of £23,978 which was paid into one of the bank accounts and later used to buy Llangyfelach Rd. Batters borrowed 85% of his purchase price from Bristol & West, the source of the deposit being untraced. Finally, on 23.10.03 Batters sold for £105,000: the net proceeds of sale were used to buy Llys Gwyn, with the remainder being paid into one of the bank accounts. e. Gainsborough Rd, the subject of evidence to which I refer below, was bought for £69,000 on 04.06.99 in the name Ellis, with 90% of the purchase price being provided by a mortgage advance from Standard Life. On the application form, Dubrey claimed to earn £1,910 net per month, and named Mrs Chope of PCA Haulage as his employer’s contact. He left blank the box next to the request to provide details “if you … have been bankrupt …”. The property was sold on 23.11.04 for £112,772, the net proceeds of £55,966 being paid into one of the accounts. f. Tower Bridge Rd was bought for £80,000 on 17.08.99 in the name Dubrey, with 90% of the purchase price being provided by a mortgage advance from Standard Life. It was sold on 11.12.02 for £147,000, with the net proceeds of £72,535 being paid into one of the accounts. g. Llangyfelach Rd was bought on 04.09.00 in the name Dubrey, using money from the sale of Edward St. It was later mortgaged to Bristol & West Investments PLC along with 2 of the other properties. On 15.10.01 Dubrey sold this property to Batters for £24,500, nearly all of which was borrowed by Batters from Bristol & West: Dubrey used some of the proceeds to buy Hirwaun Pl, and the remainder went into one of the accounts. On 07.06.05 Batters sold for £65,000, and the net proceeds of £38,406 were paid into one of the accounts. h. Adare St was bought for £11,000 on 06.01.00, in the name Dubrey. It was purchased outright with a deposit of £1,100 paid at auction and the balance (together with solicitor’s fees) being paid out of one of the bank accounts. Mr Olden accepted in cross-examination that at the time of purchase he intended to raise a loan to cover at least part of the purchase price. On 25.02.00 Dubrey mortgaged the property to Blemain Finance for £5,300. On 17.03.00 Dubrey sold to Batters for £18,000: Batters borrowed £15,300 from Abbey National by way of mortgage, the deposit of £2,700 being paid from a source which cannot be identified. Finally, on 06.05.05 Batters sold the property for £39,000, with the net proceeds of £36,558 being paid into one of the accounts. i. High St was bought for £14,000 on 27.03.00 in the name Dubrey. Part of the purchase price came from the proceeds of selling Adare St 10 days earlier; part came from the bank accounts; and there was a mortgage to Blemain Finance for £6,733. Although that was the evidence of Miss O’Brien, which I accept, Mr Olden in cross-examination said that he could remember the money borrowed from Blemain but could not say where the balance came from: he said “It would need a lot of thought”, a proposition which I find impossible to accept in the circumstances of these proceedings, which have taken some time to come to trial and of course follow a lengthy criminal prosecution and appeal. On 17.11.00 Dubrey remortgaged this property and 2 others to Bristol & West Investment for a total of £38,500. On 11.05.01 Dubrey sold to Batters for £33,000, of which £28,000 was borrowed by Batters from Bristol & West. On 14.04.05 Batters sold the property for £50,000, and £47,588 was paid into one of the bank accounts. j. 36 HGC was bought for £12,000 on 08.11.00 in the name Dubrey. The source of the purchase price was part of a mortgage advance from Bristol & West Investments: I accept the evidence of Miss O’Brien to that effect, notwithstanding that in cross-examination Mr Olden put forward a different account. He said that the property was bought for cash, and that he clubbed together with two friends to buy it. He did not name the friends, and he accepted that he had never previously advanced this account. He said that was because “I hadn’t appreciated that SOCA were interested in where the money came from”. Again, in the circumstances of these proceedings I find myself quite unable to believe that claim. On 29.06.01 Dubrey sold to Batters for £25,500, of which Batters borrowed £20,400 from Future Mortgages. On 22.04.05 Batters sold for £46,000, and net proceeds of £43,652 were paid into one of the bank accounts. k. Kimberley Way was bought for £55,500 on 15.08.01 in the name Batters. Batters borrowed £47,175 from Bristol & West by way of mortgage; the source of the deposit of £8,485 cannot be identified. Batters sold for £102,000 on 27.05.05, and the net proceeds of £48,191 were paid into one of the bank accounts. l. Llys y Brenin was bought for £70,000 on 04.09.01 in the name Batters. Batters borrowed £59,500 from Bristol & West by way of mortgage; the source of the deposit of £11,522 cannot be identified. Batters sold on 13.04.05 for £157,000: the proceeds of sale were used in part to redeem mortgages on High St, Adare St and HGC, and the balance of £21,401 was paid into one of the bank accounts. m. Hirwaun Pl was bought for £15,000 on 16.10.01 in the name Dubrey. There was no mortgage: the purchase price was paid from the proceeds of the sale of Llangyfelach Rd on the previous day, together with £1,500 from one of the bank accounts. On 13.03.02 Dubrey sold for £12,000, and net proceeds of £10,253 were paid into one of the bank accounts. n. Pavia Ct was bought for £40,750 on 27.11.01 in the name Batters. Batters borrowed £36,675 from Direct Line by way of mortgage; the source of most of the deposit of £4,350 cannot be identified. Batters sold for £66,750 on 14.11.03, and net proceeds of £26,912 were paid into one of the bank accounts. o. Chandlers Ct was bought for £55,000 on 27.06.03 in the name Batters. Batters borrowed £49,500 from Direct Line by way of mortgage; the deposit and legal fees were paid using money from one of the bank accounts. In connection with this property, Mr Olden was anxious to make the point that in his criminal trial, prosecution evidence had been given to the effect that Direct Line did not lend to bankrupts, and that he had immediately telephoned Direct Line to confirm that that was not the case by posing as someone who was thinking of making an application for a mortgage. However, when asked for more detail about this, he had to accept that in his telephone call he had not said that in addition to being bankrupt he would be using a false name, a false date of birth and a false income when applying for the mortgage. Batters sold for £67,500 on 28.06.05, and net proceeds of £22,930 were paid into one of the bank accounts. p. 1 Mayfair Ct was bought for £22,000 on 16.01.03 in the name Dubrey. There was no mortgage: the purchase price was paid with money from one of the bank accounts which represented part of the proceeds of selling Tower Bridge Rd about a month earlier. Dubrey sold for £23,000 on 23.06.03, and net proceeds of £22,598 were paid into one of the bank accounts. q. Llys Gwyn was bought for £32,000 on 24.10.03 in the name Batters. There was no mortgage: the purchase price was paid using funds from the sale on the previous day of Upperton Gardens. On 06.05.05 Batters sold for £44,000, and net proceeds of £42,039 were paid into one of the bank accounts. r. Fairview Ct was bought for £30,000 on 22.10.03 in the name Dubrey. There was no mortgage: the purchase price was paid using funds drawn from one of the bank accounts. On 05.05.04 Dubrey sold for £26,000, and net proceeds of £23,916 were paid into one of the bank accounts. s. 4 Plas Dyffryn was bought for £155,000 on 19.12.05 in the name Batters, with the consent of the CPS and using money from one of the restrained bank accounts. I say more about this property below. At one stage it was contended by Mr Olden that the consent given by the CPS meant that the property could not be the proceeds of criminal conduct. That contention was, quite rightly, abandoned by Mr Krolick. t. 1 Side St was bought for £77,000 on 11.07.07 in the name Olden, with the consent of SOCA and using money from one of the restrained bank accounts. I say more about this property below. As with 4 Dyffryn Place, a similar contention was initially advanced by Mr Olden but was not pursued before me.[48]I do not think I need to go into more detail than that about the individual property transactions. It will be apparent that there were many separate transactions in which Mr Olden used one or more of his aliases, and that the majority of them were carried out within a comparatively short time of one another. It will also be apparent that they share many features in common. I therefore turn to consider the submissions on each side in relation to the false details given to the various lenders, my findings as to Mr Olden’s evidence in that regard, and my findings as to his credibility generally.[49]I have been provided with copies of all the mortgage application forms which could still be obtained: some were no longer available because of the passage of time, but those applications were also made in false names and there is no suggestion from Mr Olden that he conducted himself any differently in relation to them. In particular, he does not suggest that he was any more truthful, or any more forthcoming about his real name and credit history, in the “missing” application forms than he was in those which are available. I accordingly infer that in those applications also he made false statements similar to those in the application forms which are still available.[50]I make the following findings of fact in relation to the mortgage application forms. Every time he applied for a mortgage, Mr Olden used a false name; gave a false date of birth; and gave false details of his employment (usually claiming to be an accountant for PCA Haulage at various addresses – an employment which Mr Olden admits was fictitious) and salary. Whenever he gave a National Insurance number, that too was false. In each case he signed, untruthfully, a declaration that the contents of the application form were true. The terms of the application forms of course varied, and so the same questions were not asked in every case; but whenever he was asked a direct question about whether he had used any other name, or been made bankrupt, or had financial difficulties, Mr Olden either remained silent or told a direct lie. In one instance, which related to the linked insurance rather than the mortgage itself, he lied about his convictions, which were not then spent. In short, he invariably presented himself as someone he was not, and concealed the facts that he was unemployed, that he was either bankrupt or recently discharged from bankruptcy, and that he was engaged in the concurrent use of other false names and details for the purposes of buying numerous other properties over a short period of time.[51]Mr Olden accepts that he provided inaccurate information in his mortgage application forms. He contends however that he was not acting dishonestly: he says he was entitled to call himself by whatever name he chose, and that in any event the lenders were not concerned with the details he provided because their only concerns were that the properties should provide good security for the advance (which they always did) and that the repayments were made (which they always were). He says that when he used false names and details he believed the information was irrelevant to the lending decision. He regards his property portfolio as essentially honest.[52]That explanation gives rise to an obvious question: if the lenders did not care what personal details were provided, why not just tell them the truth? Put another way: if the lenders would not be put off by learning that the applicant for a loan was an unemployed man, currently or recently bankrupt, who was also engaged in buying other properties, why not tell them that was the position? Mr Olden could give no sensible answer in his evidence to me. It is relevant to note that towards the end of his interviews in August 2004, when the police were asking questions in general terms about the business which he had been conducting of buying and selling properties, he was asked (at p496) “You knew this was dishonest though, didn’t you?”. To that question, Mr Olden replied “I certainly did know it was dishonest, I have no illusion that it wasn’t”. In his evidence to me he said he regretted that reply because he did not think he had been criminally dishonest, though he had thought it was “iffy”.[53]I have already mentioned the fact that in many cases Mr Olden bought a property in one name and then sold it to himself in another name. Of necessity, he would in these cases give the false details of both the aliases concerned, and on occasions he went to the lengths of instructing the solicitors acting for him under one alias to write to the solicitors acting for him under a different alias. One only has to mention such a charade to see the difficulty Mr Olden faced in trying to maintain his claims that he was not acting dishonestly, and that the false statements which he made were of no relevance to the lenders’ decision-making.[54]A good illustration of that difficulty is provided by a letter which was included in the trial bundle at p784. On 21.02.00 Mr Olden as Dubrey wrote to the solicitors acting for him in what they believed to be a sale of Adare St to a different person, Batters. Dubrey complained to his solicitors that he had fallen out with Batters, who was “unable to proceed with the purchase” until certain information was provided. Dubrey also complained that he had never had such difficulties before, and gave instructions that he was not prepared to grant any further extension of an offer to pay the purchaser’s legal costs in return for completion by a certain date. Confronted with that letter in cross-examination, Mr Olden had to accept that he had been lying to the solicitors acting for Dubrey.[55]There were in my view some particularly sinister features of the lies told by Mr Olden in these applications. Firstly, in relation to his alias Batters, he was equipped not only with the full name and date of birth of the real Mr Batters, but also with the correct National Insurance number, and even the correct details of an address at which the real Mr Batters had previously lived. He was thus able, when it suited him to do so, to give convincing circumstantial detail in case any check was made. Secondly, he obtained and used false P60s purporting to confirm his employment and income. Thirdly, he often provided, as the contact details of his fictitious employers, addresses of properties which he owned in a different name, and either his own aliases or the names of friends such as Mr Cooper. Having considered all the evidence carefully, I am satisfied that he did so in order that any enquiries or checks made by the lender concerned would come either to Mr Olden himself, or to someone he could rely upon to back up his false story. That view is strengthened by a document which appeared at p684 of the trial bundle, a letter dated 22.09.01 to Direct Line which purported to come from the employer of Mr TL Batters. The fictitious employer on this occasion was Spencer Howells of 22 Llys y Brenin (a property which had been bought in the name Batters less than 3 weeks earlier), and the letter purported to be signed by the managing director B Edwards: Mr Olden admits that in fact he typed this letter, and he asked his friend Ellison to sign it (plainly, in a name other than his own). There are ticks and markings on the letter which give rise to the inference, which I draw, that someone at Direct Line sought to check the details given in this letter and received confirmation from someone purporting to be B Edwards. Mr Olden’s explanation, which I reject, was that some indolent employee of Direct Line may just have marked up the letter without really having made any checks at all.[56]In short, this is not a case in which Mr Olden has simply used a false name: he has in my view gone to considerable lengths to acquire and use 3 false identities, and to acquire and use false identification documents, and has successfully deceived the various financial institutions on many occasions.[57]In my judgment, it is perfectly clear from the evidence adduced by SOCA that Mr Olden was acting dishonestly in each and every one of the mortgage transactions to which SOCA point. It is no doubt correct that he would be entitled to change his name if he wished to do so; but that is not at all the same thing as concurrently using several different names without ever disclosing his true identity and relevant attributes. As Mr Talbot neatly put it in his submissions: Mr Olden says he could be whoever he wanted to be; but SOCA’s case is that he wanted to avoid being Mr Olden, a jobless bankrupt with a history of not paying his mortgage instalments. That accords with my own analysis. It is to my mind an overwhelming inference from the totality of the evidence that Mr Olden used his various aliases when applying for mortgage advances because he wanted to acquire properties which he did not think he would be able to acquire if he told the truth about himself. The false details which he gave all had the effect, and in my judgment were intended to have the effect, of preventing any proper credit check or assessment of his true creditworthiness. The very fact that he invented fictitious employments and earnings gives rise to the obvious inference that he had no genuine source of legitimate income, and was reliant on his property sales and rentals.[58]Although Mr Olden maintained his denial of dishonesty throughout, it seems to me that he came very close to admitting the reality of his situation when he said that he began to use the name Batters because “I wanted to put behind me my credit problem”. Similarly, he made a revealing comment at one point in his cross-examination when denying that he knew there was a real Mr Batters: he said it would be foolish for him knowingly to use the details of a real person, because if that real person were insolvent Mr Olden’s application for a mortgage might fail.[59]Moreover, the evidence I have heard from representatives of the lenders confirms that Mr Olden would not have obtained the mortgage advances if he had told the truth. A number of witnesses were called, each of whom was open to the criticism that he or she had not personally handled any of the relevant applications. Indeed, they did not all even work for the relevant lender at the relevant time, and one – Mr Banwell – was really not in a position to assist at all. But with the exception of Mr Banwell, they did give consistent evidence as to the policies and procedures of their employers:a. Carole Orange of Bradford & Bingley said that although she did not know anything about Mr Olden’s position, she could confirm that “had Ronald Olden, as an unemployed, undischarged bankrupt applied to Bradford & Bingley plc for a mortgage, his application would have been rejected”.b. Maurice Webb, the investigator whom I have already mentioned, said that Mr Olden had obtained 8 mortgages with Bristol & West using two false names. In his witness statement, he confirmed that “had Bristol & West been aware that any of the information given within the applications was false, and that the applicant was not who he claimed to be, that the applications would have been rejected and that no monies would have been advanced. If we had been aware that Ronald Olden was an undischarged bankrupt then we would not have lent him any monies”. In his oral evidence he added that they expect the application form to be filled in truthfully: if someone does not tell the whole truth, it may alter the picture which the underwriter is considering. The very fact that Mr Webb began his investigation once he was contacted by the real Mr Batters is itself wholly impossible to reconcile with Mr Olden’s claim that the false details he had given were immaterial to the granting of the advances.c. Mr Stewardson, of Blemain Finance, accepted that Blemain at the material time was a sub-prime lender and did lend to persons with financial problems. He confirmed that for Blemain it was the value of the security, not the value of the person, which was important. They accepted self-declaration of income and would lend to a discharged bankrupt, though not (to his knowledge) to any undischarged bankrupt. He was cross-examined about publicity material which clearly suggested Blemain would be willing to lend despite other adverse lending: he said that the material was aimed at brokers and was intended to invite applications. But, he said, Blemain did have and apply their own criteria when considering a specific application, and “we would reject an application in a false name”.d. Rebecca Betts of Abbey National said she could confirm that “if Abbey National had been aware that any of the information or supporting documents in respect of any mortgage account application had been false, incorrect or misleading then the application would have been rejected and no monies would be advanced”.[60]Thus there was clear evidence that it was important to the lenders that the information provided by an applicant should be truthful and accurate. That evidence hardly comes as a surprise, and the only suggestion to the contrary comes from Mr Olden. What is in my judgment highly significant is that Mr Krolick, whilst pointing to the fact that the witnesses had no personal involvement in Mr Olden’s applications, did not challenge any of their evidence about policies and procedures. It was not suggested to any of these witnesses that they were wrong about the policies and procedures, or that the policies and procedures were regularly, or at least from time to time, ignored by those making the decisions on whether to advance a loan. I can well understand why Mr Krolick did not feel able to put any such suggestion.[61]The absence of any challenge to that important feature of the evidence of those witnesses is relevant to Mr Krolick’s submission that the evidence adduced by SOCA is incomplete, and that in relation to some of the lenders oral evidence has not been given by any representative, let alone by anyone who dealt with Mr Olden. In different circumstances, that might be a powerful point. In this case, however, it seems to me that there is nothing in it: in my judgment SOCA have adduced sufficient oral and documentary evidence to satisfy me that each lender asked in the application form for truthful personal information which was material to the lending decision, but received from Mr Olden false and deceptive personal information. In Olupitan the learned judge at first instance, Langley J, said at para 33 of his judgment, that he did not think it “sustainable to submit, as Mr Krolick did, that evidence must be adduced from the actual decision-maker …”. The Court of Appeal said nothing to suggest he was wrong in that view, and it is one with which I concur.[62]In support of his case that he had not been acting dishonestly, Mr Olden claimed that he had, at any rate in some instances, told those with whom he was dealing that he was also known by another name. In particular, he claims to have said so to a solicitor who acted for him. I therefore turn to that aspect of his evidence.[63]I heard evidence from Mr Thomas Hunter Jarvie, a partner in the firm of Anthony & Jarvie in Bridgend. His former partner Mr Anthony is now retired from practice, but had acted for Mr Olden (then using the name Batters) in one or two conveyancing transactions. Mr Jarvie himself had then acted for Mr Olden in several more transactions. Mr Webb, in the course of his investigations, had visited the firm’s premises, and in one of the relevant files - neither he nor Mr Jarvie could remember which – he had found a photocopy of the Dubrey passport which Mr Olden had acquired. When he showed this to Mr Jarvie, who I accept had not seen it before, Mr Jarvie immediately recognised the passport photograph as being the man he knew as Batters, and at once took appropriate action to report the matter.[64]The tenor of Mr Olden’s written statements was plainly that both Mr Anthony and Mr Jarvie were aware that their client Batters was also known as Dubrey. Although close textual analysis may make it possible to extract a different meaning from the relevant passages, I am satisfied that that is the impression which Mr Olden wanted to convey. He wanted to suggest that he had been openly and honestly keeping his solicitors, and through them Bristol & West, informed about his use of both names – indeed, according to his written evidence, of all 3 names (though, significantly, he does not suggest he ever told anyone he was really called Olden). But as with the paper allegations against DC Phillips, the case emerged in a very different form when evidence was given. Mr Jarvie flatly rejected any suggestion that he was aware of the use by the same person of 2 different names, and I accept his evidence. He told me, and again I accept, that the man he knew as Batters had made some reference to others paying contributions towards his legal fees. He told me that Mr Anthony was a man of the utmost integrity who would have taken appropriate action if he had suspected his client was using an alias, and the only evidence I have heard which could suggest the contrary comes from Mr Olden himself. Mr Jarvie suggested that the photocopy passport may have been mistakenly included in documents sent by solicitors acting on the other side of one of the conveyancing transactions, and so not noticed at the time. Whether that be correct or not, I am satisfied that Mr Olden did not tell either solicitor that he was concurrently using more than one name, and mentioned the name Dubrey, if at all, only in the context of someone contributing to his fees.[65]I reject the evidence which Mr Olden gave on this issue. Faced with the extremely firm evidence of Mr Jarvie, he retreated from the position set out in his written statements and tried to say that he had not mentioned his use of another name to Mr Jarvie but had mentioned it to Mr Anthony. He gave evidence to the effect that he had told Mr Anthony that he was now known as Batters but had previously been known as Dubrey. If he had said that, it would have been a statement which was designed to conceal far more than it revealed. But I find that he gave untruthful evidence to me about this. He did so, in my view, because he realised Mr Jarvie was an entirely credible witness, and found it expedient to try to limit his allegation to the absent Mr Anthony. I find it wholly improbable that a solicitor in Mr Anthony’s position would simply have turned a blind eye to the revelation that he was acting for a man who used at least 2 names: Mr Olden put forward no reason why Mr Anthony would have done so. I find that Mr Olden did not at any stage tell either solicitor that he was also called Dubrey.[66]As with the issue concerning DC Phillips, I find this issue revealing as to Mr Olden’s readiness to lie and distort if he thinks it will help him to do so.[67]The other person to whom Mr Olden specifically referred in this context was a Mr Adam Holmes of Bristol & West. No explanation was given as to why Bristol & West should have been told more than any other lender. Mr Olden’s evidence was that he had told Mr Holmes that he had changed name several times and that he didn’t have much in the way of salary. Even if he had said something to that effect, it would be very far from telling Mr Holmes that he was using several names concurrently, including doing so in order to make sham sales of properties to himself, and that none of the names was his real name. Mr Holmes was not called as a witness by either party, and so I have not heard from him in relation to these allegations of wholesale departure from the proper procedures required by his employers. However, having for the reasons I have given disbelieved what Mr Olden told me about Mr Anthony, I also disbelieve what he told me about Mr Holmes. His evidence provided, to my mind, no explanation for why Mr Holmes would have taken the obvious risks involved (both to his employers and to himself) in granting repeated mortgage applications if he had been told anything approaching the true position. It seems to me that this is another example of Mr Olden doing what he did throughout the trial: namely, casting the blame or the responsibility for important matters onto someone who was not going to be called as a witness.[68]Those findings bring me to my overall assessment of the credibility of Mr Olden’s evidence.[69]Mr Olden was able to talk fluently and pleasantly, at length, about matters which did not relate directly to the key allegations against him. In contrast, when confronted with direct questions about eg his concurrent use of multiple false names, or his transactions involving sales from one alias to another, with different solicitors instructed on each side, he became evasive and wholly unconvincing. He either tried to move away from the point and instead answer a question with which he would have felt more comfortable, or he claimed ignorance about matters such as the effects of his bankruptcy or the relevance to these proceedings of identifying the precise source of funds used to pay deposits on his properties. As to the former, I am satisfied that he did this not because he misunderstood the question but because he had no honest answer to it. As to the latter, I reject his claim: he is an articulate and intelligent man, with a background in accountancy including in particular tax matters, and in the conduct of these proceedings he has shown himself to be well on top of his subject, willing and able to argue points in correspondence and capable of researching matters swiftly and efficiently on the internet.[70]I have already referred to the way in which he made, in his witness statements, serious allegations against DC Phillips, and against Messrs Anthony and Jarvie, which I have found he then watered down for tactical reasons. Both the making of the false allegations, and the circumstances of the retreat from them, are matters which show him in a very bad light. They also illustrate what seems to me to be another feature of his evidence: namely, his willingness to explain or excuse his own actions by reference (express or implied) to the failings or inefficiencies of others. Given the absence of challenge to the evidence of the lenders’ policies and procedures, it seems to me to be necessarily implicit in his case that every time he applied for a mortgage his application happened to be dealt with by someone who either did not know, ignored or deliberately broke those policies and procedures. It may well be that at a time when the property market was rising, there was a readiness to lend money which may have involved the cutting of corners or a failure to make detailed enquiry, and it may well be that loans were made to borrowers who were not good risks. But that is not what Mr Olden is saying: his case is that none of the personal information he gave mattered at all, even to someone such as Adam Holmes to whom he claims to have made some significant disclosures. This too is something which shows him in a very poor light.[71]I have no hesitation in rejecting his evidence on key matters, and in attaching significance to the fact that in a number of respects he has put forward explanations which I find to have been deliberately untruthful. The burden is of course on SOCA to satisfy me that the case is proved against Mr Olden on the balance of probabilities, and there is no burden on him; but given that there is no real dispute as to the giving of false information in the various applications, my rejection of Mr Olden’s evidence as to his state of mind and honesty, and my finding that he has lied to me in that regard, is a powerful factor in SOCA’s favour. I am satisfied that, contrary to his claim, he understood enough about his bankruptcy to know that all his assets should vest in his trustee in bankruptcy. I do not believe (and indeed, he does not claim) that he ever told anyone that he was at the same time using several different false names. At the very most, he may have said something to the effect that he had in the past been known by another name, but even if he did I have no doubt he used terms which would be taken to mean that he had renounced that former name and used his present name for all purposes. He never told anyone that he was Ronald Olden, that he had been made bankrupt in respect of a debt which related in part to a mortgage advance, that he had no job, or that he had no income except what he made by renting and selling other properties, some owned in different names.[72]The reason for his conduct is in my judgment obvious. He realised that if he told the truth about himself his applications for mortgage advances would be refused. He was motivated, in my judgment, by a desire to defeat his original creditor, and to acquire property which could be held in different names and so would not be traced to him. In short, he used false names and false details for the purpose of building a substantial (and untaxed) property portfolio, held in names which could not readily be traced to him, which he knew he would not be able to acquire if he told the truth about himself. He relied on his ability to present a plausible and indeed charming manner, and took advantage of the willingness of lenders at the time to advance money without always making detailed enquiry into the borrower.[73]Mr Krolick submits the mere use of a different name is not enough for the court to find that criminal conduct has been proved. Whether or not that is correct, the reality here is that there is much more than just the use of a different name. Although there is evidence that Mr Olden was for a period known as Batters, on the evidence I have heard there never was a time when he entirely ceased using one name and adopted a different name for all purposes: he simply used the name that suited him at a particular time and for a particular purpose. The concurrent use of 2 or 3 different names, with sham sales of properties between them, is very different from a straightforward renouncing of one name and taking of another.[74]In the context of the Court of Appeal quashing his convictions, Mr Olden said in his witness statement (p197) that the assets referred to by Miss O’Brien were traceable to the transactions in respect of which he had been acquitted, and therefore could not be the proceeds of crime. That was never a good point; but in developing it, Mr Olden said – “SOCA’s own evidence appears to confirm conclusively that the transactions for which I have already been tried and acquitted were the sole source of funds to acquire the contested property”. Whatever precise point he was trying to make, that statements does in fact reflect what I believe to be the reality of the situation.[75]Taking into account all the evidence, I find that SOCA have satisfied me to the requisite standard that in connection with each of his mortgage applications Mr Olden acted dishonestly and obtained each mortgage advance by deception. In my judgment, it has been proved in these civil proceedings that his conduct amounted to the commission of offences of obtaining money transfers by deception and false accounting.[76]I can deal briefly with the evidence relating to Mr Olden’s acquisition of the caravan and the two cars.[77]The caravan was bought for £29,000 on 14.06.05 (during the period of the restraint order), in the name Olden. It was paid for out of the restrained bank accounts, with the consent of the CPS, in response to a request from Mr Olden for money to be used to provide him with a home. Mr Olden later wished to acquire a house, rather than static caravan, as a home, and at that stage the property 4 Plas Dyffryn was bought out of restrained funds.[78]The Mazda car, CU52 XPA, was bought by way of part-exchange for a BMW which Mr Olden had paid for with moneys from one of the bank accounts (see p454). The Mitsubishi Shogun, Y204 ENN, was bought at British Car Auction on 05.07.04 for £16,174. It was paid for out of one of the bank accounts in the name Batters, which was the name in which Mr Olden registered the vehicle.[79]I turn to consider whether, on the totality of the evidence, the application for a recovery order has been made out. In summary, SOCA contend that the tracing provisions of POCA 2002 allow the court to trace the proceeds of Mr Olden’s unlawful conduct to all of the assets which are the subject of this application. Although SOCA concede that they cannot identify the precise source of the funds used to provide the deposits for the first few properties bought, they contend that the court should find on the balance of probabilities that they must have come from some deception or other. After the first few properties, SOCA contend that Mr Olden acquired his property portfolio on a rolling basis: the rents received from those properties which were let were paid into the bank accounts, as were the proceeds of sale of properties, and those funds were used as the deposits for subsequent purchases. SOCA emphasise the absence of any evidence of any “clean” capital or income after the date of Mr Olden’s bankruptcy. Mr Olden contends that SOCA have failed to prove their case because they have not put before the court the necessary detailed evidence to enable the court to find, in relation to each asset, how it was bought, where the money came from, and what happened subsequently. Mr Krolick advances many points, both general and specific, and urges me to avoid a broad-brush approach.[80]It is necessary to look first at the relevant provisions of POCA 2002. By s240(1), SOCA is enabled to recover property “which is, or represents, property obtained through unlawful conduct”. By s241, conduct in any part of the UK is unlawful for this purpose “if it is unlawful under the criminal law of that part”, it being for the court to decide on a balance of probabilities whether it is proved that any matters alleged to constitute unlawful conduct have occurred. Section 242 provides – “(1) A person obtains property through unlawful conduct (whether his own conduct or another’s) if he obtains property by or in return for the conduct. (2) In deciding whether any property was obtained through unlawful conduct –(a) …(b) it is not necessary to show that the conduct was of a particular kind if it is shown that the property was obtained through conduct of one of a number of kinds, each of which would have been unlawful conduct” (a) … (b) it is not necessary to show that the conduct was of a particular kind if it is shown that the property was obtained through conduct of one of a number of kinds, each of which would have been unlawful conduct”[81]By s266. the court must make a recovery order if it is satisfied that any property is recoverable. The meaning of “recoverable property” is explained in sections 304 – 307, the relevant provisions of which are as follows: “s304:(1) Property obtained through unlawful conduct is recoverable property(2) But if property obtained through unlawful conduct has been disposed of (since it was so obtained), it is recoverable property only if it is held by a person into whose hands it may be followed. … S305: (1) Where property obtained through unlawful conduct (‘the original property’) is or has been recoverable, property which represents the original property is also recoverable property. (2) If a person enters into a transaction by which – (a) he disposes of recoverable property, whether the original property or property which (by virtue of this Chapter) represents the original property, and (b) he obtains other property in place of it, the other property represents the original property. … S306: (1) Subsection (2) applies if a person’s recoverable property is mixed with other property (whether his property or another’s). (2) The portion of the mixed property which is attributable to the recoverable property represents the property obtained through unlawful conduct.(3) Recoverable property is mixed with other property if (for example) it is used – (a) to increase funds held in a bank account, (b) in part payment for the acquisition of an asset … S307: (1) This section applies where a person who has recoverable property obtains further property consisting of profits accruing in respect of the recoverable property. (2) The further property is to be treated as representing the property obtained through unlawful conduct.”

the other property represents the original property. …

[82]In R (Director of ARA) v Green [2005] EWHC 3168 Sullivan J granted declarations in the following terms:
“1. In civil proceedings for recovery under Part 5 of the Act the Director need not allege the commission of any specific criminal offence but must set out the matters that are alleged to constitute the particular kind or kinds of unlawful conduct by or in return for which the property was obtained. 2. A claim for civil recovery cannot be sustained solely on the basis that a respondent has no identifiable lawful income to warrant his lifestyle.”
[83]In Olupitan the Court of Appeal approved that approach. As to the second declaration, Carnwath LJ said at para 16 – “I would emphasise the word ‘solely’ in the second declaration. Lack of lawful income to support the respondent’s lifestyle may be a very relevant factor in painting the overall picture.”[84]In the present case, at the conclusion of SOCA’s evidence Mr Krolick sought clarification of the nature of the case he had to meet. He was concerned that there were many credits into the bank accounts for which Miss O’Brien had not provided any specific explanation, and he expressed concern that there might be an attempt to create a new case against Mr Olden by cross-examining him about those credits. I accordingly heard submissions on that point. In her witness statement of 30.01.08 (p817, in its annotated form), Miss O’Brien referred in para 1.1 to the Director’s belief that Mr Olden holds assets which are the proceeds of unlawful conduct, “in particular assets acquired as a result of deceptions and mortgage fraud by Ronald Olden”. She dealt with the false information given in the mortgage applications, and then dealt in paragraphs 4.17 and 4.18 with the source of deposits. She pointed out that in the period 28.12.98 to 01.08.99, nearly £60,000 was credited to the bank accounts, not counting sums paid as mortgage advances. The only known legitimate income in the same period was benefits of less than £4,500, leaving about £55,500 unaccounted for. Although Mr Olden was receiving rent, during that period it was only the rent on two properties, amounting to little more than £5,000. He acquired 6 properties in that period, the deposits on which totalled at least £23,850. In para 4.18 (amended to remove reference to a matter I ruled inadmissible) she said – “Based on my current investigations of the Respondent and taking into consideration his previously spent convictions for ‘Making a false statement or representation to obtain benefit’ I believe that the source of this money is a further deception or deceptions by the Respondent.”[85]In the light of that perfectly clear assertion, SOCA submitted that it had always been apparent to Mr Olden that he was accused not only of mortgage fraud but also of other deceptions which SOCA could not precisely identify, but which were the probable source of the deposits he paid when buying his first properties. It must have been plain to him that if he had an innocent explanation for the source of the deposits he could put it forward to the court, and that it would obviously be in his interests to do so. I ruled that SOCA were entitled to pursue that allegation, with the result that POCA 2002 s242 made it necessary, in the circumstances of this case, for SOCA to prove that the relevant property is, or represents, property obtained by or in return for conduct coming within the categories of mortgage fraud or other deceptions.[86]Mr Talbot in cross-examination asked Mr Olden specifically about his income and resources at and after the time of his bankruptcy, in order to see whether there was any innocent explanation for any of the funds in the bank accounts which Mr Olden maintained in his various false names and with which he paid the deposits on the properties he bought. There is no doubt he was in receipt of state benefit, and I accept his evidence that it was incapacity benefit which was not means-tested. The payments were however made into the Olden bank accounts, and in my judgment there is nothing to suggest that they were used to assist in the purchases of properties in false names. There was also rental income from letting out various properties; but such rental payments would plainly come within POCA 2002 s307, and so would themselves be recoverable property.[87]Mr Olden gave evidence that he had continued, after his bankruptcy, to do some freelance work such as completing tax returns, but he was uncertain about dates or amounts (save to accept that they were not large); and in any event, any modest income from this source was paid to him in his real name. He said he also received some payouts from demutualisations, which I infer were paid to him in his correct name; but he did not identify even the source or the approximate amount of such payouts, gave no detail and produced no documentation to support what he said. Thus in those two respects I have some evidence from Mr Olden of sources of income, but no evidence at all to make a positive link between such income (paid to Olden) and the purchases of properties in false names. I think it very relevant that Mr Olden’s aim was, as I find, to acquire property in names which could not be linked to the name Olden. I also think it very relevant that Mr Olden could in my view reasonably be expected to remember if a particular property purchase had been made possible by moneys which he had earned or received in one of these ways. In those circumstances I find that the probability is that any such moneys as he did receive were paid to him in the name Olden and were not used to purchase properties in false names.[88]The only other source of income which needs to be considered is the winnings from Mr Olden’s gambling. I accept that Mr Olden did take part in a form of spread betting with two organisations, IG Index and City Index. I heard evidence from Mr Mukhida of IG Index. In essence, Mr Olden made forecasts or “took positions” in respect of the future movements of various financial indices. If events turned out in his favour, he received a payment; if events turned out against him, he had to pay his loss. The IG Index account was opened and operated in the name Batters: Mr Mukhida gave evidence that IG Index do not allow customers to use false names. He also gave evidence that an initial payment had to be made when the account was opened, and that a deposit had to be paid before bets could be placed.[89]Overall, I find that Mr Olden made a loss of several thousand pounds on each account: that is not disputed in relation to City Index, and I accept Mr Mukhida’s evidence to that effect in relation to IG Index. It follows that this gambling cannot be the source of any of moneys now remaining in the restrained bank accounts. It is nonetheless the case that from time to time there was money in one of the bank accounts which came from a successful gamble, and Mr Krolick submitted that such money could not be recoverable property. I do not accept that submission. In a more straightforward case, if a man takes a cash sum out of his proceeds of crime, uses it to place a conventional bet on a horse, and successfully doubles his money, it seems to me that the increased sum is caught by POCA 2002 s307 and all of it is recoverable property. The mechanism of this form of spread betting is more complex, but the essence of it is the same: Mr Olden needed to start with some money in order to open his accounts and place his bets, and it is SOCA’s case - which I accept has been proved as a matter of probability - that the money he used was the proceeds of his unlawful conduct. On that basis, it seems to me that if he won, his winnings were “profits accruing in respect of the recoverable property”. If he lost, he diminished his recoverable property.[90]So far as capital was concerned, Mr Olden said in evidence that at the time of his bankruptcy he had something like £12,000, which was accordingly available to him to invest in properties. He admitted that his trustee in bankruptcy did not know about this money: he explained that that was because no one had ever asked him about it, an explanation which I reject as obviously untrue as I am satisfied he must have known he was under a duty to disclose all assets. He gave no explanation as to how he had managed to keep this sum of money from the trustee’s knowledge. He gave no specific explanation of how he had acquired it, and was very vague about how he had used it. He produced no document providing support for his evidence. He could not explain why, if he had about £12,000 and believed his bankruptcy debt to be about £10,000, he did not take the obvious step of “putting his credit problem behind him” by paying his debt.[91]Had I felt able to accept Mr Olden’s evidence on other important matters, I might have been persuaded to accept that there was some sum which Mr Olden managed to conceal. But as will be apparent, I have found him to have given deliberately false evidence on a number of important matters, and I have rejected much of his evidence. On the balance of probabilities, I find that he is also being untruthful when he tries to explain his payments of the early deposits by reference to this supposed sum of about £12,000. It is possible there was some money, but in my judgment there probably was not. The probable explanation for those early deposits does, I find, lie in some other deception or deceptions, and I accept Miss O’Brien’s evidence and SOCA’s case in that regard.[92]Even if I am wrong in that conclusion, it is clearly the case that any money which Mr Olden retained after his bankruptcy must have been kept back from his trustee in bankruptcy. That would of itself be a criminal offence under Insolvency Act 1986 s354, so that the money retained would be property obtained through unlawful conduct. Mr Krolick fairly conceded that he could not take any pleading point in this regard since the explanation about the £12,000 was first put forward by Mr Olden during the trial. On that alternative basis, any such sum would be recoverable property within POCA 2002 s304.[93]It follows from the above that in general terms I find that the source of the deposits for the various properties acquired by Mr Olden was either the proceeds of an earlier mortgage fraud or the proceeds of some other deception. Given that I have already found that each of the mortgage advances was obtained by deception, it follows that I find in general terms that the various properties were acquired with the proceeds of criminal conduct.[94]Before coming to the consequences of my above findings, I need to consider whether the properties at Treharne St, Gainsborough Rd and 1 Side Street are exceptions to the generality. All the other properties can in my view be considered collectively, because the evidence shows no material distinction between them; but in relation to these 3 properties there was evidence from Mr Olden which could result in a finding that I should reach different conclusions about them.[95]It is convenient to deal with 1 Side Street first. When this property was bought, with £77,000 from the restrained bank accounts, the vendor was Mr Stephen Wortley. On the face of it, it was a straightforward sale by Mr Wortley, and SOCA’s case is that it was precisely that. Mr Olden however contends that in reality he was already the beneficial owner of the property, as a result of an agreement he and Mr Wortley had entered into at a much earlier date, and that accordingly he did not acquire any property when the £77,000 was paid – as he put it - to complete the arrangement.[96]In his witness statement p199 Mr Olden said that Mr Wortley acquired 1 Side St in trust for him. He developed this in evidence, saying that it had always been their intention that Mr Wortley would buy on trust for him. He said he (Mr Olden) chose the property; he made monthly payments to Mr Wortley to enable him to pay the mortgage which Mr Wortley had taken out with Bristol and West; and he (Mr Olden) paid £18,129 which was the entire balance payable on completion of the purchase. However, it was Mr Olden’s evidence that at a later stage Mr Wortley, for reasons of his own, tried to say that Mr Olden had made him a loan of £68,129 in order to purchase property, and he repaid that sum to Mr Olden. Mr Olden says that that £68,129 was part of the £77,000 which was eventually paid to Mr Wortley from one of the restrained bank accounts.[97]SOCA contend that the property was indeed owned by Mr Wortley; that whatever arrangement there may have been between the two men, it was brought to an end when Mr Wortley repaid the £18,129; and that on 11.07.07 Mr Olden bought the property outright for £77,000. However, SOCA did not call Mr Wortley as a witness.[98]Mr Olden contends that he was already the beneficial owner of the property, and that anything to the contrary which Mr Wortley has said to the police, or to SOCA, was a lie told for his own purposes. I accept the submission of Mr Krolick that on such an issue I should attach no weight to hearsay evidence from Mr Wortley. But Mr Olden faces the difficulty that the account he now relies upon is not at all the account he gave to the police: at p458 of his interview he said of this property – “That house is not owned in any way by me and it is nothing to do with anything that’s happened here. It’s a house that a friend of mine has bought as an investment. … I had actually considered renting it from him and living in it myself because I wasn’t sure I wanted to keep any of these properties. But he knows nothing whatsoever about this.”[99]Mr Olden now says that that passage in his interview was a lie which he told out of a misguided wish to cover up for Mr Wortley in order to “keep him out of all this”. The passage is, he says, the one exception to his assertion that he told the truth in his police interviews.[100]In considering whether SOCA’s contention is probably correct, my adverse view of Mr Olden’s credibility is again very relevant. SOCA are able to point to documents which are clear on their face, and to invite me simply to accept matters at face value. Mr Olden, in contrast, relies on a complicated account which is directly contradicted by his own statements to the police in interview, and further undermined by my findings that he has lied about a number of important matters. I think it is a possibility that Mr Olden’s original plan had been to use Mr Wortley’s name to acquire this property, and thereby to defeat his creditor; so it is possible that he paid the deposit in something like the circumstances he claims (though if he did, SOCA would argue that he did so out of moneys which were recoverable property). However, I found Mr Olden’s evidence about this very unsatisfactory, complicated as it was by the reference to other properties purchased by Mr Wortley. My conclusion, on the balance of probabilities, is that Mr Wortley was the legal and beneficial owner of 1 Side Street until 11.07.07, when Mr Olden bought it using restrained funds. I find, accordingly, that 1 Side St is not an exception to my general finding.[101]The remaining 2 properties raise a somewhat similar issue. At p202 of his witness statement Mr Olden stated baldly “24 Treharne St was purchased for cash and owned by me long before any mortgage was contemplated”. At p207 he said, in relation to both Treharne St and Gainsborough Rd, that the property “was not purchased with the mortgage referred to”, but said nothing to indicate how it was purchased. In the witness box, however, he said that these 2 properties were similar to 1 Side St, in that in relation to each he had an agreement with Paul Cooper whereby Cooper would be the nominal purchaser but Mr Olden would pay all or most of the deposit, pay the mortgage instalments, and be the beneficial owner. When asked why he had not said any of this in his witness statement, he replied (revealingly) “I didn’t want to give you information which might be used against me” – hardly a reply consistent with his general claim to have been acting honestly in all these matters.[102]Paul Cooper was not called as a witness by either party, and I therefore do not know what he would say about these 2 properties. It is clear that he has in more than one respect assisted Mr Olden to put forward false details in mortgage applications, and I have considered carefully whether it is probably correct that he was being used to assist Mr Olden to acquire these 2 properties in a name other than his own. In my view that is certainly a possibility; but I conclude that the probability is as all relevant documents show on their face - that Cooper simply owned each of the properties and sold them both to Mr Olden. I therefore find that these 2 properties do not constitute exceptions to the generality.[103]In Olupitan Mr Krolick argued unsuccessfully that the nature of a mortgage advance is such that a mortgage fraud of this kind does not result in any recoverable property. The Court of Appeal held that where a property is acquired in part with money loaned as a result of a fraud, and for the rest with money paid from tainted sources, then the property so purchased is “recoverable property”. As will be apparent, my findings are that each and every mortgage advance paid to Mr Olden was made as a result of the mortgage fraud which he perpetrated by giving false personal information in the applications; and in each and every property purchase the source of the deposit was either an earlier mortgage fraud or some other deception. I reject the various suggested exceptions to that general conclusion, for the reasons I have indicated. I accept SOCA’s submission that in reality Mr Olden did not use any “clean” money in the purchase of these properties. It follows that each house bought by Mr Olden was itself recoverable property; that any rental income earned by letting it out was representative property caught by POCA 2002 s307; and that the eventual proceeds of sale were representative property caught by s305(2).[104]Mr Krolick next submitted that a remortgage of a house raises different considerations, and that this is so whether the remortgage is declared as such or whether it takes the form of the sales between aliases which occurred in this case. I reject that submission, which seems to me inconsistent with the reasoning of the majority of the Court of Appeal in Olupitan. I accept the submission of SOCA, that the effect of a remortgage was to give Mr Olden a legal right to have the relevant sum of money applied to redeem the existing mortgage and provide an additional sum which, on the evidence, was paid into the bank accounts. It follows from the findings I have already made that each of the remortgages in this case was fraudulently obtained by Mr Olden using a false name, and that no “clean” money was used either by way of deposit or to pay the monthly instalments. In those circumstances there is in my view no material distinction between the mortgages and the remortgages. I add that it would be a curious situation if a fraudster who had purchased a property with the assistance of a mortgage obtained by deception, and using the proceeds of his crime as a deposit, with the result that the property was recoverable in accordance with Olupitan, could avoid that consequence by the simple expedient of a sham sale to himself under a different alias.[105]Mr Krolick further submits that tracing requires precise identification of money going into bank accounts and money coming out: he says a broad brush approach is not possible. He also says that once a mortgage advance is paid into a bank account it ceases to have any separate identity and so tracing becomes impossible. The complexities of tracing and mixing to which Mr Krolick referred do not in my view arise here, because the bankruptcy does, as SOCA submit, provide a cut-off point. All the moneys which Mr Olden had after that point must be or represent the proceeds of his unlawful conduct in that they must either have been dishonestly retained or dishonestly acquired, and as I have made clear I accept SOCA’s submission that there was no “clean” money.[106]In my judgment, and for the reasons I have given, each of the houses bought in false names was itself recoverable property; the proceeds of sale of each house were recoverable as representative property; and the moneys which passed through the bank accounts, including the balances which were transferred from the restrained bank accounts to the Bishop and Light accounts, were or represented property obtained by or in return for mortgage fraud or other deceptions.[107]It follows that the 2 houses, and the static caravan, which were bought using funds from the restrained bank accounts are all recoverable as representative property.[108]It remains to consider the Mitsubishi vehicle and the proceeds of sale of the Mazda car. A vehicle bought using money which was recoverable property is itself recoverable property under POCA 2002 s305. One of the cars was paid for with the assistance of a bank overdraft, and Mr Krolick submits that that prevents it from being recoverable. But Mr Olden was under an obligation to repay that overdraft, and I find that he did so using tainted money (and must always have intended to do so, since he had no “clean” money). In those circumstances there is in my judgment a sufficient causal connection with the unlawful conduct relied upon by SOCA.[109]In the result, my judgment is that SOCA have succeeded in proving all aspects of their claim, and are entitled to a recovery order in respect of all the assets which are the subject of this application.[110]I am making this judgment available to the parties in draft. I will hear submissions as to the precise form of the order, and as to any consequential applications, when the final judgment is handed down. I direct that a written skeleton argument in relation to such matters be provided by each party not later than 48 hours before the date fixed for handing down.

Cited in 1 later judgment