Neutral Citation Number:
[2014] EWCA Crim 227
Case No:
201205294 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Peter Thompson
T20107250
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
21/02/2014
Before:
LORD JUSTICE PITCHFORD
MR JUSTICE WILKIE
and
MRS JUSTICE PATTERSON
- - - - - - - - - - - - - - - - - - - - -
Between:
CHRISTOPHER BOUGHTON-FOX
Appellant
- and -
REGINA
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Richard Furlong (
instructed by
Birds Solicitors
) for the
Appellant
David Wilson
(instructed by the
Crown prosecution Service
) for the
Respondent
Hearing date: 5 February 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
MR JUSTICE WILKIE:
Introduction and issues.
1.
This Court has to deal with the following issues:
i)
A renewed application by Mr Boughton-Fox seeking leave to appeal against his conviction.
ii)
The appeal with leave by Mr Boughton-Fox against the confiscation order made under the Proceeds of Crime Act 2002 on 21
st
March 2012.
iii)
In the event of that appeal being allowed, the question in principle, whether this Court should consider making a substitute confiscation order pursuant to the Criminal Justice Act 1988.
iv)
In the event that this Court decides in principle to do so, to give directions for a substantive hearing on the question what the content of such substituted order should be.
Brief Chronology of the proceedings.
2.
Mr Boughton-Fox and Jonathon Mathew Parrish were tried on indictment at the Crown Court sitting at Ipswich for a period of 10 weeks commencing 24
th
January 2011. Both were convicted of the single count of Conspiracy to Defraud and, on 27
th
April 2011, Mr Parrish was sentenced to 5 years and 6 months imprisonment and Boughton-Fox to 7 years imprisonment. Both were disqualified from acting as company directors for a period of 7 years pursuant to Section 2 of the Companies Directors Disqualification Act 1986.
3.
Mr Boughton-Fox sought leave to appeal against conviction and sentence. Those applications were refused by the Single Judge who characterised them as wholly without merit. Notwithstanding the warning that, were the applications for leave renewed, the court may direct that time spent in custody as an appellant should not count towards sentence, the applicant renewed his application for leave to appeal against both conviction and sentence.
4.
Those renewed applications were considered by the Full Court on 4
th
May 2012. In the course of her judgment, Lady Justice Rafferty summarised the renewed grounds of appeal against conviction in six short statements; four of them asserted that the summing up was deficient in various ways. The fifth was that inadmissible evidence was given, cross-examined and referred to in the summing up and the sixth was that Mr Boughton-Fox’s legal team failed to seek or to call any evidence in support of him; as a consequence his conviction was unsafe.
5.
The Full Court refused the renewed applications for leave to appeal against sentence and against conviction and deducted 28 days from the time served.
The application for leave to appeal conviction for a second time.
6.
At that point, in accordance with conventional wisdom, Mr Boughton-Fox’s right to appeal would be assumed to have become exhausted save in the case of a further referral to the Court by the Criminal Cases Review Commission (CCRC). Notwithstanding that, Mr Boughton-Fox has made a second application for leave to appeal against conviction. That application was considered and refused by the Single Judge on the 28
th
March 2013. The CCRC has, upon reference by Mr Boughton –Fox, refused to refer the matter to the CACD. The proposed new grounds are numerous and cover a range of issues which are helpfully summarised in paragraph 2.3.1 to 2.3.17 in the written consolidated argument on behalf of Boughton-Fox dated 13
th
November 2013, filed by Mr Furlong of Counsel.
7.
We have no hesitation in refusing leave. In our judgment, this court does not have jurisdiction, save in the most exceptional circumstances, which do not remotely arise in this case, to entertain a second application for an appeal against conviction, (other than by reference by the CCRC) where a first application for leave has been refused or an appeal against conviction has been dismissed. In
R v Pinfold 1988 1QB 462
, Lord Lane CJ, the court having already referred to Section 2(1) of the Criminal Appeal Act 1968 said,
“So there is nothing there on the face of it which says in terms that one appeal is all that an appellant is allowed. But in the view of this court, one must read those provisions against a background of the fact that it is in the interest of the public in general that there should be a limit or finality to legal proceedings, sometimes put in a Latin maxim, but that is what it means in English. We have been unable to discover, nor have Counsel been able to discover, any situation in which a right of appeal couched in similar terms to that, has been construed as a right to pursue more than one appeal in one case.
So far as the Criminal Appeal Act 1968 is concerned, there are perhaps two possible exceptions, or apparent exceptions because that is what they are to that rule: first of all, where the decision on the original appeal, if I may call it that, can be regarded as a nullity. This is more commonly applied where there has been an application to treat a notice of abandonment as a nullity. The second occasion, which may be simply an example of the first, is where, owing to some defect in the procedure the appellant has, on the first appeal being dismissed, suffered an injustice, where, for example, he has not been notified of the hearing of the appeal or Counsel has been unable to attend, circumstances such as that.”
8.
This issue has recently been revisited by this court in
R v Barry Jones Strettle
2013 EWCA Crim 1385
. In that case this court considered
Pinfold
and the decision of the Court of Appeal of Northern Ireland in
R v Walsh
2007 NICA 4
, in which the Chief Justice dealt with an application to re-open an appeal which had been refused by the Criminal Cases Review Commission. The Chief Justice had noted that
Pinfold
had been decided before the Criminal Appeal Act 1995 which established the CCRC and that the CCRC may refer a case more than once. The Chief Justice said at paragraph 31 of his judgment,
“We have concluded that the power of the Court of Appeal to relist a case has not been removed by the 1995 Act. The occasion for the exercise of such a power will arise only in the most exceptional circumstances, however. In virtually every conceivable case it is to be expected that where the possibility of an injustice is reasonably apprehended, the CCRC will refer the case. If it decides not to refer however, the circumstances in which a challenge to that decision can be made are necessarily limited –
R v CCRC ex-parte Pierson
1999 3 All ER 498
. Where CCRC have been invited to refer a conviction to the Court of Appeal for a second time and has declined, if this Court considers that because the rules or well established practice have not been followed or the earlier court was misinformed about some relevant matter and, in consequence, if the appeal is not relisted an injustice is likely to occur, it may have recourse to its inherent power to relist (or effectively, reopen) the appeal.”
9.
In
Strettle,
the applicant for leave argued that Walsh constituted a gloss upon
Pinfold
which allowed him to sidestep the review undertaken by the CCRC without challenging that decision and to ask this Court to reopen the appeal. This court rejected that contention in the following terms in paragraphs 11 and 12,
“11. We decline to accept that the jurisdiction is as wide as Mr McGuire contends, or that the Chief Justice of Northern Ireland was, in truth, providing any second route of appeal in the event that the CCRC were not prepared to become involved in recommending that this Court pursue a further appeal. In our judgment, the CCRC is by far and away in the best position to determine whether an appeal should be referred to this Court. It has the power to investigate allegations which otherwise this Court might be constrained to require it to investigate, having given leave on what might transpire was a false premise.
12. In our judgment the proper course is for the CCRC to be seen as, almost invariably, the only route whereby an appeal might be reopened. We say the “almost invariably” never to exclude every possible circumstance, but we believe that the examples given by Lord Lane CJ are far more to the point than those which include cases such as this.”
10.
In the present case we observe that the CCRC has refused to refer this case to the CACD. We have no doubt that none of the grounds now sought to be advanced by Mr Boughton-Fox are remotely of the type which could conceivably fall within the very narrow category of case which, in
Pinfold
and
Strettle,
were identified as such that this court may, in wholly exceptional circumstances, agree to reopen an appeal against conviction, a first appeal having failed at whatever stage.
11.
Accordingly, we refuse Mr Boughton-Fox leave to pursue a second appeal against conviction.
The appeal against the confiscation order.
12.
Mr Boughton-Fox has leave in relation to an argument that the confiscation proceedings should not have been brought, and the confiscation order should not have been made, under the Proceeds of Crime Act 2002 (the POCA scheme). He has raised a number of further proposed grounds of appeal against the confiscation order which have been referred to this Court but, in the light of our decision on the main ground, it is not appropriate to consider them.
13.
The order made by the court on 21
st
March 2012 was that the benefit figure was £1,316,057.42. The available or realisable amount was £179,102.75. A compensation order was made for £98,343.13 which was ordered to be met out of the proceeds of the confiscation order, which was fixed as £179,102.75. The appellant was given 6 months to pay the sum ordered. A default term of imprisonment of 2 years and 6 months was set.
14.
It is common ground that, for the reasons we set out briefly below, the Crown Court erred in law in proceeding to conduct a confiscation order hearing pursuant to the POCA scheme. It should have conducted any confiscation order proceedings pursuant to the scheme established by the Criminal Justice Act 1988 (the CJA 1988 scheme).
15.
The reason for this is as follows: The Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 (SA 2003 No 333 (C20)) (the 2003 Regulations) provides, in Article 3, that:
“(1) Section 6 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in 6(2) was committed before 24
th
March 2003.”
Article 1(3) provides:
“Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this Order to have been committed on the earliest of those days.”
16.
In the present case the confiscation proceedings were in respect of a conviction for a single offence of conspiracy to defraud. The particulars of the offence in the indictment, as amended and as tried by the jury, alleged that the period of the conspiracy to defraud was from the 1
st
March 2003 until the 1
st
June 2008.
17.
On that basis it is now common ground that, by virtue of the transitional provisions referred to, Section 6 of POCA 2002 did not apply to the offence of which the appellant was convicted and the Crown Court erred in law in applying the POCA scheme. This accords with the decision of this court in
Evwierhowa
[2011] EWCA Crim 572
.
18.
It is, therefore, common ground between Appellant and the Respondent to the appeal, with which we agree, that, at the end of this appeal, the confiscation orders made by the Crown Court on 21
st
March 2012 will have to be quashed.
What course is now open to the Court given that the current confiscation order cannot stand?
19.
The Respondent to the appeal contends that this court has the power to substitute a confiscation order made pursuant to the CJA 1988 scheme. It does so relying on the power given to this court by Section 11(3) of the Criminal Appeals Act 1968 which provides;
“On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may-
a) quash any sentence or order which is subject of appeal; and
b) in place of it pass such a sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence;
but the court shall so exercise their powers under this sub-section that, taking the case as a whole, the Appellant is not more severely dealt with on appeal than he was dealt with by the Court below.”
20.
It is common ground, again with which we agree, that, on the facts of this case, the power given to this court by Section 11(3A) of the 1968 Act to direct the Crown Court to proceed afresh under the relevant enactment does not apply. That power is limited to directing the Crown Court to proceed afresh under the scheme which the Crown Court applied at first instance. Where, as here, the Crown Court applied the wrong scheme, the power in this court to remit the matter to the Crown Court for a fresh decision does not arise.
21.
Mr Furlong does not seek to argue that this Court has no power to exercise the Section 11(3) power so as to substitute a confiscation order made under the CJA 1988 scheme on his client. He contends that, on the particular fact of this case, it would not be fair or just for this Court to embark on such an exercise. He contends that to do so would be to permit the Prosecution to benefit from abusive conduct which ought not to be permitted and that, upon a proper reading of the facts, it would require the Court to engage in a speculative exercise which would be unjust.
22.
At the heart of his argument lies his contention that a restraint order, made by the Crown Court upon application of the prosecution, was obtained in circumstances which amounted to an abuse of the process and that it would be unjust for this Court now to embark upon substituting a confiscation order under the CJA1998 scheme where it would have to be on the basis that the restraint order and its effects continue to be in play.
The obtaining and maintaining of the restraint order.
The POCA 2002 scheme
23.
Section 40 provides that the Crown Court may exercise the powers conferred by Section 41 if any of a number of conditions is satisfied. Two of those conditions are contained in subsections (2) and (3),
“(2)…
(a) a criminal investigation has been started in England and Wales with regard to an offence, and,
(b) there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct
(3)…
(a) proceedings for an offence have been started in England and Wales and not concluded, and
(b) there is reasonable cause to believe that the defendant has benefited from his criminal conduct
24.
Section 41(1) provides,
“If any condition set out in Section 40 is satisfied the Crown Court may make an order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him.
…”
25.
Section 69 of the 2002 Act concerns exercise of powers. Subsection 1 provides that,
“This section applies to –
(a) the powers conferred on a court by sections 41 to 59 …”
26.
Subsection (2) provides,
“The powers -
(a) must be exercised with a view to the value for the time being of realisable property being made available (by the properties realisation) for satisfying any confiscation order that has been or may be made against the defendant;
(b) must be exercised, in case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property …”
27.
Section 88 provides,
(6) The following paragraphs apply to references to orders-
(a) a confiscation order is an order under section 6;
(b) a restraint order is an order under section 41
28.
Parallel transitional provisions exist in respect of making restraint orders as exist in relation to making confiscation orders. Article 5 of the 2003 Regulations provide,
“Section 41 (Restraint Orders) … of the Act shall not have effect where –
(a) the powers in those sections would otherwise be exercisable by virtue of a condition in Section 40(2) or (3) of the Act being satisfied; and,
(b) the offence mentioned in Section 40(2)(a) … was committed before 24
th
March 2003.”
The underlying facts
29.
The restraint order was made on 18
th
November 2008 on application by the prosecuting authority, Norfolk County Council Trading Standards. The witness statement in support of the application was dated 17 November 2008 and was made by Geoffrey Baker, a financial investigator accredited by the National Policing Improvement Agency. He stated that a criminal investigation was started on the 28
th
September 2007 concerning alleged offences relating to false or misleading statements in the course of a trade or business and fraud by false representation. He confirmed that no proceedings had yet been commenced, so the application was made pursuant to Section 40 (2) of POCA.
30.
He said that information was received on 28
th
September 2007 by Norfolk County Council Trading Standards that the appellant’s company was involved in supplying telecommunications systems to other businesses throughout the UK and included a significant number of complaints from various UK businesses claiming that the company, through its employees or representatives, had used false or misleading claims to sell long term leasing contracts for telecommunication systems.
31.
He stated that witness statements had been obtained from 38 complainants which showed a period of alleged offending dating from the summer of 2005. The parameters of the investigation were restricted to complaints from small businesses and schools reported to Norfolk and Suffolk Trading Standards and situated within these counties. The investigators were aware of allegations made of suspected offences being reported nationwide.
32.
He stated that, on the 29
th
February 2008, Norfolk Trading Standards executed a warrant at the trading address of the appellant’s company. A significant amount of documentation was seized, together with information held on computers. That information was still being examined to assess its evidential value.
33.
The trigger for the application appears to have been that the appellant had put his residence on the market.
34.
On the day following the order, solicitors for the appellant wrote requesting consent to a variation to enable Mr Broughton-Fox to raise from Shire Leasing a loan of £150,000, secured by a charge on the property caught by the order, to provide funding for unwinding a number of clients from their lease agreements. This was said to be essential to the ongoing trade of the company’s business. Trading Standards refused such consent.
35.
Criminal proceedings against the appellant were commenced on 14
th
May 2009 by summons which was issued on 1 charge of conspiracy to defraud said to have been committed during the period between 1
st
January 2005 and 28
th
February 2008. The case was committed to the Norwich Crown Court for trial on an indictment charging the offence and its duration as described in the summons.
36.
On 18
th
September 2009 a successful application was made by the prosecution at the Crown Court to amend that indictment to widen the period of the alleged conspiracy to the period between the 1
st
March 2003 and 1
st
June 2008. The trigger for that amendment was the obtaining, on the 4
th
February 2009, of a witness statement from a complainant, Cynthia Graves, who is a partner in a florist’s business, trading as Peter Graves Florist, from an address in Cambridgeshire. Her complaint concerned her dealings with the company which, she said, began in around early April 2003. This resulted in her entering a leasing agreement on 25
th
April 2003. Her complaint, therefore, was of allegedly fraudulent activity occurring prior to 2005. Out of an abundance of caution the time frame for the conspiracy to defraud was pushed back, by amendment of the indictment, to the 1
st
March 2003. In the event, Cynthia Graves was not called as a witness, though the dealings between her business and the company were included in a schedule of loss which was relied on by the prosecution and placed before the jury.
The essence of the appellant’s case in respect of the restraint order.
37.
At the heart of the appellant’s case is the assertion that the restraint order, obtained under POCA, should not have been granted because the conditions for granting it did not then exist.
38.
As an alternative to that argument, it is said that the order was obtained inequitably by virtue of the absence of full and frank disclosure by the prosecuting authority which would have revealed that the court did not then have the power to make the order pursuant to POCA.
39.
As a subsidiary argument, it is said that, even if the order was obtained properly, there came a time, either on the 4
th
February 2009 (the date of Cynthia Graves witness statement) or the 18
th
September 2009 (the date of amendment of the indictment) when the jurisdictional basis for obtaining the restraint order pursuant to POCA had ceased, such that it would be unjust for this Court to act as if the order continued in effect, even though no application was made to discharge it on the jurisdictional grounds now advanced.
40.
The appellant argues that this Court, in considering whether, in principle, it should substitute a confiscation order under the CJA 1998 scheme for the invalid one made by the Crown Court under POCA scheme, should have regard to the abuses of process evidenced by any of: the initial impropriety in obtaining the restraint order; or the failure on the part of the prosecutor to take action to inform the Court, and then make appropriate application, when it became apparent that the jurisdictional basis for the restraint order had ceased.
41.
The appellant argues that various consequences flow from that state of affairs. The first is that, if the restraint order never should have been made, Mr Boughton-Fox would then have been free to deploy his assets to proceed with a larger scale unwinding of customers leases than had occurred prior to the restraint order being made. The correspondence from his solicitors, immediately following its being made, evidences, he says, such an intention.
42.
In that event, at its highest, the court should assume that substantial unwinding would have taken place so as to diminish the amount of benefit of Mr Boughton-Fox for the purpose of making a confiscation order.
43.
Even if the court fought shy of making such an assumption, it is said that the nature and extent of the benefit, in those circumstances, would be so open to speculation, that the court ought not to embark on such an exercise and should set its face against substitution of a CJA 1988 scheme confiscation order for the invalid POCA scheme order.
44.
A similar argument is said to be available to Mr Boughton-Fox were the court to be of the view that, after obtaining Cynthia Graves’ witness statement in February 2009, the jurisdictional basis for the restraint order had been removed. At that point, it is argued, Mr Boughton-Fox should have been free to deploy his assets and the same arguments would pertain so as to persuade this court not to proceed by way of substitution.
45.
A similar argument is advanced in the event that the relevant date for removing the basis for a validly obtained restraint order under the POCA scheme was the 18
th
September 2009.
46.
As a discrete, and subsidiary, argument, it is pointed out that Mr Boughton-Fox was the subject of a bankruptcy order made by the Norwich County Court on 3
rd
November 2010. His bankruptcy has since expired. In the event that it was our conclusion that, at any stage, the jurisdictional basis for the restraint order pursuant to POCA had ceased and in the event of our concluding that a similar order would not have been obtained pursuant to the CJA 1988 scheme, it is said that assets, which were then the subject of a restraint order, would have been available to the trustee in bankruptcy. In those circumstances it is said that to permit the prosecutor to obtain a substitute confiscation order would enable the prosecutor to gain inappropriately from conduct which constitutes an abuse of the process. It is said that we should not entertain a substitution which would permit such an unmeritorious gain.
47.
It is accepted on behalf of Mr Boughton-Fox, however, that, given the fact that the bankruptcy has now expired, such a conclusion would leave Mr Boughton-Fox with his assets free from any inhibition, whether pursuant to the bankruptcy or pursuant to a restraint or a confiscation order.
The POCA 2002 and CJA 1988 schemes compared.
48.
The 2002 Act made three changes, of significance to this case, when compared with the CJA 1988 scheme. First, applications for a restraint order fall to be made to the Crown Court rather than to the High Court. Second, the Crown Court has jurisdiction to grant a restraint order where a criminal investigation had been started, even though no charge had yet been preferred. Under the CJA 1988 scheme, the powers of the High Court to grant a restraint order only arise where proceedings are instituted (Section 76(1)(a)). Third, the circumstances in which the statutory assumptions by reference to criminal lifestyle arise under the POCA scheme are different to those under the CJA1988 scheme. It was common ground in the Crown Court that they arose in this case under the POCA scheme. It is common ground that they do not arise, on the facts of this case, under the CJA1988 scheme.
Applying the POCA scheme to the facts of this case
.
49.
On the face of it, the restraint order obtained from the Crown Court pursuant to Section 41 was properly made. The evidence before that court, from Mr Baker, was that there was a criminal investigation which had been started on the 28
th
September 2007 and was not in respect of an offence committed before the 24
th
March 2003. The offence being investigated, on the material then available, commenced in the summer of 2005.
50.
We can find nothing in the material which has been placed before us from which any inference is to be drawn that Mr Baker was aware that the subject of the investigation was a criminal offence which had commenced prior to the 24
th
March 2003. There is no material to contradict his assertion that the witness statements then obtained did not concern offending pre-dating the summer of 2005 and that the parameters of the criminal investigation had not extended beyond Norfolk and Suffolk.
51.
We therefore reject the contention that the restraint order was originally obtained either invalidly, or as a result of a failure on the part of the prosecuting authority to make full and frank disclosure to the Court on that application.
52.
Nor, we conclude, was that position changed by the receipt of the witness statement of Cynthia Graves on the 4
th
February 2009. She made it clear that the earliest date she was making an allegation about was early April 2003. She referred to a customer order/maintenance contract dated the 3
rd
April 2003 and the Shire Leasing Hire agreement dated 25
th
April 2003. We are satisfied that there is nothing in that witness statement to have alerted the prosecuting authority to the possibility that a criminal investigation had been started in which the continuing offence of conspiracy to defraud being investigated was an offence which commenced prior to the 24
th
March 2003, so as to disempower the Crown Court from granting a restraint order under Section 41 of POCA. Thus, in our judgment, there can be no question of the prosecuting authority being guilty of any abuse of process by assuming that the validly obtained restraint order continued, unaffected by the extension of the ambit of the criminal investigation.
53.
Once proceedings had been commenced by the issuing of the summons in the Magistrates Court in May 2009 then, even if a subsequent change in the ambit of the investigation meant that there was a potential difficulty about the use of the POCA scheme, by that stage the alternative CJA 1988 scheme procedure would be available to the prosecuting authority under which it could make an application to the High Court for a restraining order.
54.
On the 18
th
September 2009 the indictment was amended to extend the period covered by the alleged offence of conspiracy to defraud to begin on the 1
st
March 2003.
55.
By that stage the power of the Crown Court to make an order under Section 41 would be based on Section 40(3) namely: that (a) proceedings for an offence had been started in England and Wales and not concluded; and (b) there was reasonable cause to believe that the defendant had benefited from his criminal conduct. The power under Section 41 is triggered whether the condition under Section 40 is satisfied under (2) or (3) is the relevant condition. But that power does not arise if the offence for which proceedings has been started in England and Wales, and not concluded, was committed before 24
th
March 2003.
56.
It follows, therefore, that once the indictment was amended, then the power of the Crown Court to make a restraint order pursuant to Section 41 of the POCA was unavailable to the prosecuting authority. The prosecuting authority, if at that stage it had wanted a Court to make a restraining order, would have had to make application to the High Court pursuant to the CJA 1988 scheme.
57.
The prosecuting authority did not do so. It is clear that it did not then cross its mind that, by virtue of amending the indictment, the relevant confiscation scheme had changed from the POCA scheme, to the CJA 1988 scheme. By parity of reasoning, it did not then cross its mind that the restraining order obtained by it from the Crown Court under the POCA scheme was in any way affected. We have no hesitation in concluding, therefore, that permitting the restraint order to continue, without any application to the Court to discharge it, was not a deliberate act of wrong doing which could arguably be said to amount to an abuse of process.
The case of RCPO v Hill
2005 EWCA Crim 3271
.
58.
We were referred briefly, and in passing, to this authority both in the written argument and in oral argument, but not taken to the report of the case itself. In that case, though it was not necessary for the decision of the court, some consideration was given to the interplay between Sections 6, 40, 41, 69 and 88 of POCA. At paragraphs 4 and 5 of the judgment, Lady Justice Smith said,
“4. The power to make restraint orders during the course of an investigation contained in POCA was new. Under the preceding legislation (…) a restraint order could be made in the High Court but not until criminal proceedings were about to begin. Restraint orders under both the old and the new legislation were and are intended to support confiscation orders. Section 69(2) of POCA provides that the power under Section 41 “must be exercised with a view to the value …of realisable property being made available (by the property’s realisation) for satisfying any confiscation order that … may be made against the defendant”
5. A confiscation order is an order made under Section 6 of the POCA. Section 6 provides that, subject to certain conditions which are not relevant for present purposes, a confiscation order may be made if a defendant had been convicted of an offence by the Crown Court and he has benefitted from that offence.”
59.
The reference to Section 69 and the requirement that the power under Section 41 must be exercised with a view to satisfying a confiscation order, and that means a confiscation order made pursuant to Section 6 of POCA, is based on the interpretation Section 88 of POCA subsection (6) of which provides,
“The following paragraph applies to references to orders –
(a) a confiscation order is an order under Section 6;
(b) a restraint order is an order under Section 41.”
60.
As was pointed out in
Hill
, Section 42(3) of POCA provides,
“An application to discharge or vary a restraint order or an order under Section 41(7) may be made to the Crown Court by –
(a) the person who applied for the order …”
61.
Once the indictment had been amended on 18
th
September 2009 no lawful confiscation order could be made pursuant to Section 6 of POCA. Thus, there could be no proper basis for the exercise by the Crown Court of the power to make an order under Section 41 as it could not be made with a view to preserving realisable property or satisfying any confiscation order made under Section 6.
62.
In such an event, had an application been made, either by the prosecutor or the appellant, to the Crown Court for a discharge of the restraint order under Section 42(3), it is highly likely, if not inevitable, that such an application would have succeeded. We have little doubt, however, but that, in anticipation of such an application being made and succeeding, the prosecuting authority would, maintaining their consistent position vis á vis the property of the appellant, have made an application to the High Court for a restraint order, which would, on the evidence we have seen, have succeeded. Thus, the discharging of the Crown Court restraint order would have had no impact on the inhibitions on Mr Boughton-Fox dealing with the property the subject of the Crown Court restraint order.
63.
None of these events happened, however, and it is common ground that, unless or until an application was made to discharge the restraint order, or until its natural life ended, that order, validly made, continued. The position, therefore, would be that, a valid and effective Crown Court restraint order would continue, but one which was vulnerable to be discharged. In fact we are informed that the restraint order was discharged by consent on 30 October 2013.
64.
As we have indicated, we are satisfied that the failure of the prosecuting authority to have acted to remedy the position following the amendment of the indictment on the 18
th
September 2009 was inadvertent, not giving rise to an abuse of process. It follows, therefore, that none of the arguments put forward by Mr Boughton-Fox that it would be inequitable for this Court to embark on an exercise by way of substitution of a CJA 1988 confiscation order for the invalid POCA order can succeed. Accordingly, on the issue of principle, this court may make such an order, having received written and oral submissions on what the content of such an order should be.
The process of substitution
65.
It was common ground in the Crown Court that the “criminal lifestyle” provisions of the POCA scheme applied such that a series of statutory assumptions informed the calculation of benefit. It was on that basis that the order made be the Crown Court included a benefit figure of £1,316,057.42.
66.
It is also common ground that the different provisions of the CJA 1988 scheme preclude, on the facts of this case, the application of the statutory assumptions under that scheme. With that in mind the prosecuting authority has submitted a further statement pursuant to Section 73 of the Criminal Justice Act 1988 dated 9
th
December 2013.
67.
That contains a fresh calculation of benefit which is based on commission received by the company, as reflected in a schedule placed before the jury at the trial. That has resulted in a calculation of benefit in the sum of £259,986.05 as explained in that form. This is in substitution for a statement made in an undated Section 73 statement of Mr Baker that the total benefit derived by the appellant was £1.180 million odd.
68.
In that undated statement an assessment had been made of total realisable property in the sum of £223,587.75.
69.
The appellant produced a response to that undated statement in which he asserted that the benefit figure should be £7,902.08 and in which he set out his case in respect of specific items of property said to be realisable and their valuation. That resulted in realisable amounts accepted by him of £5,221.84 and, in respect of a pension, an estimated figure of £9,712.50.
70.
In his further Section 73 statement of the 9
th
December 2013, Mr Baker has commented, point by point, in respect of the appellant’s case on the realisable assets. He has produced a revised figure, particularised in that statement, of £166,321.43 and invites the court to make a confiscation order in that sum, pursuant to the CJA 1988 scheme, in substitution for the order made by the Crown Court pursuant to the POCA scheme.
71.
We have not been addressed by either party on the details of these various contending calculations and the appellant has not had an opportunity to respond to the revised benefit figure calculated by Mr Baker in his statement of 9
th
December 2013. We give directions in a separate document for preparations for a further hearing in which the court will consider making a substituted order and will decide what the figures for benefit, realisable amount, compensation, and confiscation order will be if it is minded to make one.
Conclusions
72.
In summary, therefore, we refuse Mr Boughton-Fox leave to appeal against his conviction.
73.
We conclude that the confiscation order made by the Crown Court must be quashed at the end of the resumed hearing at which consideration will be given to making a substituted order pursuant to the Criminal Justice Act 1988.
74.
We conclude that there is no “in principle” obstacle to the court, on the next hearing, making such a substituted order.
75.
We give directions, set out in the annexe hereto, leading to a further hearing at which this court will consider making a substituted order pursuant to the Criminal Justice Act 1988.
John Matthew Parrish
76.
We record that the appeal of John Matthew Parrish against the confiscation order made against him pursuant to the POCA scheme has been disposed of by agreement which we have approved. Its full terms are in a separate order. We briefly summarise its terms:
i)
we quash the POCA order made on 21 March 2012;
ii)
for it, we substitute a confiscation order made pursuant to the Criminal Justice Act 1988;
iii)
its terms include that the benefit from criminal conduct is £159,770.48, the available amount is £304,991.87, and the confiscation order is £159,770.48;
iv)
the compensation order in the sum of £98,313.11, made on 21 March 2012, stands unaffected and is to be met out of the sum the subject of the substituted confiscation order;
v)
there are consequential orders as to costs and for repayment of a sum of £85,221.39 which had been overpaid by Mr Parrish pursuant to the, now quashed, POCA order.
ANNEXE
REGINA
-v-
CHRISTOPHER BOUGHTON-FOX
DIRECTIONS
The Court having ruled that confiscation should proceed under the Criminal Justice Act 1988:
1.
Appellant to respond to Mr Baker's amended section 73 statement within 8 weeks of the handing down of this judgment, such response to include all evidence upon which the appellant proposes to rely.
2.
Respondent to respond (if appropriate) 4 weeks thereafter.
3.
Skeleton arguments to be exchanged and filed with the Court by 1 June 2014 with time estimates for a full hearing.
4.
Hearing to be listed on first available date after 14 June 2014, parties to notify the Court no less than 7 days before the hearing if the time estimate has changed.
5.
Representation order to be extended to cover all work by Birds Solicitors & counsel necessary for the preparation of the response to the section 73 statement, including attending upon Mr Boughton-Fox as necessary.