View source for ICLR R v Ali (2014) EWCA Crim 1658, (2014) MHLO 87

''CRIME — Sentence — Confiscation order — Defendant converting house into flats without planning permission — Defendant convicted of failing to comply with enforcement notice — Judge making confiscation order in defendant’s absence through illness — Confiscation order made in sum including benefit from rents at property subject of conviction and rents from three other houses — Whether statutory assumptions applicable where defendant absent from confiscation proceedings through illness — Whether defendant’s benefit including rent received in respect of property where no enforcement notice served or before expiry of time for compliance with notice — Proceeds of Crime Act 2002, ss 6(4), 10, 19, 20, 27(6), 76(1)(a)''
 
'''Regina v Ali (Salah)'''

'''[2014] EWCA Crim 1658;  [2014] WLR (D)  366'''

CA:  Beatson LJ, Wilkie, Haddon-Cave JJ:  31 July 2014

It was permissible for the statutory assumptions in section 10 of the Proceeds of Crime Act 2002 to be applied in a case where a defendant was either voluntarily or involuntarily absent through illness.

Where confiscation proceedings were brought following a defendant’s conviction for failing to comply with an planning enforcement notice, the defendant’s benefit, within the meaning of sections 76 and 10 of the Proceeds of Crime Act 2002, did not include rents received by him without having obtained the requisite planning consent where no enforcement notice had been served or before the time for compliance with the notice.

The Court of Appeal, Criminal Division, so held when allowing an appeal in part by the defendant, Salah Madhi Ali, against a confiscation order made on 25 September 2012 in the Crown Court at Norwich by Judge Holt in the sum of £1,438,180·59 following the defendant’s conviction on 29 September 2010 at Brent Magistrates’ Court of failing to comply with an enforcement notice contrary to section 179(2) of the Town and Country Planning Act 1990.

'''BEATSON LJ''' said, in the reserved judgment of the court, in relation to ground 1, there was no principle of law that prevented a confiscation order being made in the involuntary absence of the defendant, or in applying the presumptions, where it was so made. The question for the court was one of fairness. The defendant’s analogy with the position of an absconder was misconceived. The application of the assumptions to a person in the position of the defendant would not treat him less favourably than an absconder. This was because, although section 27(5)(d) of the 2002 Act provided that the assumptions in section 10 were to be ignored in the case of an absconder, when the absconder is caught the prosecution could continue with the confiscation. Significantly, as a result of section 27(6), it was able to do so on the basis that it had not proceeded at the time of the conviction or committal with a view to a confiscation order being considered, and to deploy the section 10 assumptions in relation to all the evidence. By contrast, in the case of a person who was unwell and absent, if no order is was made because of the absence of the defendant on account of illness, the effect of sections 19 and 20 of the 2002 Act was that, when the case was reconsidered after his recovery, it would only be possible to deploy the assumptions in relation to evidence which was not available to the prosecutor at the earlier time. Accordingly, acceding to the prosecution’s submission would not treat a sick person in the same way as an absconder. It would put him or her in a much better position.

Ground 2 involved the determination of two questions: (1) whether the defendant’s benefit, both particular and general, within the meaning of sections 76 and 10 of the 2002 Act, included rents received where no enforcement notice had been served or before the time for compliance with an enforcement notice; and (2) whether, if the basic position was that such rents did not generally qualify as the defendant’s benefit under the 2002 Act, they would qualify where the conduct amounted to the commission of an inchoate offence, either a conspiracy to disobey an enforcement notice or an attempt to do so.

In relation to question (1), it was clear from the 2002 Act that criminal conduct meant conduct which amounted to a criminal offence under our criminal law. Although the defendant’s activities might have been in breach of planning and other regulations, his conduct did not constitute an offence within the meaning of section 76(1)(a) of the 2002 Act in relation to any particular property, until any enforcement notice was actually served and became effective in relation to that property. Unless and until that moment arrived, the defendant could not be said to have been engaged in general or particular criminal conduct within the meaning of section 6(4) of the 2002 Act. Subject to the prosecution’s argument based on an inchoate offence, any rents or proceeds derived from tenants in such properties prior to the expiry of any enforcement notice period could not constitute relevant proceeds of criminal conduct for the purposes of the 2002 Act.

As for question (2), although, in principle, the conduct of a person who set out to defeat the statutory planning regime and any enforcement notice could have amounted to such an offence, the dividing line drawn in the 2002 Act was between conduct that was criminal and conduct that was not. Applying R v Waya [2013] 1 AC 284, the task of the court was to give effect to Parliament’s intention expressed in the language of the statute and the 2002 Act language had to be given a fair and purposive construction. There was no indication, on the face of the statute, that conduct which was criminal because it amounted to an inchoate offence, was to be treated differently from other criminal conduct. Because the inchoate analysis was far from straightforward, a clear finding was necessary in the confiscation proceedings that the conduct under consideration amounted to an attempt or a conspiracy. An important reason for requiring a clear finding was when applied to breaches of planning control, the inchoate offence analysis involved questions of conditional intent and conditional agreement, because the conduct was not intrinsically criminal. What the defendant intended was to make money from his breaches of planning control in the form of rents from the converted premises and absent the service of an enforcement notice, he would do so without committing an offence. What had to be shown was that there was an ex ante intention or an agreement not to comply with any enforcement notice served. A conditional intent or agreement about something which was not intrinsically criminal did not always constitute an inchoate offence. There were no such findings in the judge’s ruling and no suggestion that the defendant conspired with anyone else and no finding of an agreement satisfying the requirement in section 1 of the Criminal Law Act 1977 that if it was carried out it would necessarily amount to or involve the commission of an offence or offences by one or more parties to the agreement. There was no finding of attempt either. The failure to identify an agreement with one or more co-conspirators or the ingredients of an attempt meant it would be wrong to infer a finding of attempt or conspiracy. Accordingly the appeal was allowed on ground 2 and the confiscation order set aside. In place of it the court made a confiscation order in the sum of £544,358 to be paid within six months.

'''Appearances:''' Simon Farrell QC (instructed by Kingsley Napley LLP) for the defendant; Andrew Campbell-Tiech QC and Kriston Berlevy (instructed by Director of Legal and Procurement, Brent London Borough Council) for the prosecution.

'''Reported by:''' Georgina Orde, Barrister.

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