The London Borough of Barnet has won an appeal after the Crown Court imposed a confiscation order of £270 when the council had contended for more than £455,000.
The Court of Appeal will consider at a further hearing what the remedy should be and whether to vary the confiscation order made by Harrow Crown Court. It will conduct a confiscation hearing in order to do so.
In London Borough of Barnet v Kamyab  EWCA Crim 543 the Court of Appeal gave Barnet Council leave to appeal the decision of His Honour Judge Cole on 16 December 2019.
The background to the case was Barnet had issued a summons in 2014 against Mr Kamyab which alleged an offence of failure to comply with an enforcement notice.
That notice had called on the defendant to cease use of land in Llanvanor Road as nine units of residential accommodation. At some point the property had been converted from a five-bedroom single dwelling into separate flats.
The defendant maintained that the conversion took place before he purchased the property but this was not accepted by the council.
Mr Kamyab was convicted of the offence on 2 February 2015. His appeal over conviction was dismissed in August 2016. The defendant was fined £10,000.
In a statement of information Barnet initially contended that his benefit from the offence was £244,406. This was subsequently revised up to £455,414.
Following the decision of the Court of Appeal in R v Panayi  EWCA Crim 413, counsel for Mr Kamyab contended that his benefit was likewise limited to a single day of rent received.
This was resisted by the council for two reasons. First, that there was a material difference in the language of the summons in Panayi and in the present case. Secondly, that Panayi had been decided without reference to s.8 POCA or to the Court's previous decision in R. v. Ali  1 WLR 841;  EWCA Crim 1658; each of which supported the prosecution case that a defendant's POCA 'benefit' from such an offence was calculable on a continuing basis.
HHJ Cole decided that the Panayi point should be dealt with as a preliminary issue. He held that there was no true distinction between the two cases and that he was bound by the Court of Appeal ruling in Panayi.
The judge dealt with the issue as a matter of construction of the summons, and a pure matter of law.
Lord Justice Edis noted that on this basis, the following facts, which were not capable of dispute, were irrelevant:
a. it was obvious to everyone that Mr. Kamyab's benefit was not limited to a single day and could not possibly have been;
b. he had never suggested otherwise during two long trials in which the history of events was relevant;
c. he had made an admission through his counsel in a skeleton argument that his benefit extended over a longer period than one day;
d. there was no procedural unfairness caused by any defect in the summons in dealing with the case on its real factual basis.
Before the Court of Appeal counsel for Barnet relied on the Court’s later decision in R v. Roth  EWCA Crim 967 in support of its primary ground of appeal that the Judge was wrong to hold that the summons identified the commission of an offence on a single day, i.e. 4 February 2014.
He argued that as a continuing offence (Hodgetts) the alleged commission on any given day necessarily imports like offending on every other day starting with the date upon which compliance was required, at least until compliance occurs. In the present case, as in Roth, the summons identified the starting date of the continuing offence. The continuing benefit obtained as a result of or in connection with that offence then falls to be determined: s.76(4), and also s.8(2).
In response, counsel for Mr Kamyab submitted that the present case was more akin to Panayi than to Roth and said:
a. The information used the words 'on or before' a particular date; and was comparable to the language of 'on or about' the particular date in Panayi.
b. Unlike Roth, Panayi and the present case involved a contested trial. Whilst accepting that the summons identified the start of the breach as 1 June 2013, this was a point of dispute at the trial in the Magistrates Court, and again on appeal against conviction in the Crown Court, and again in the confiscation proceedings.
c. The summons did not use either of the forms approved by the House of Lords in Hodgetts, to which decision the judge had expressly referred.
d. It was immaterial that a defendant otherwise knows the nature of the case against him. What matters is whether or not, on the proper interpretation of the summons, the prosecuting authority has chosen to confine the charge to the commission of an offence on a single day.
Lord Justice Edis, who heard Barnet's appeal alongside Mr Justice Soole and Her Honour Judge Tayton QC (sitting as a judge of the Court of Appeal Criminal Division), gave leave to appeal.
On the ‘single day’ issue, he said: “Unlike the judge, we have the benefit of this Court's subsequent decision in Roth. The reasoning in that decision applies equally to the present case. On its proper construction the summons does not confine the respondent's offending to a single day. On the contrary, it identifies the (extended) date for compliance (1 June 2013) and the offence continuing thereafter. As in Roth, this is in contrast to the different language of the summons in Panayi.”
Edis LJ added: “Further, and in any event, whether an offence is by its nature a continuing offence or a ‘once and for all’ offence is a matter of construction of the offence creating provision, as explained in Hodgetts and Russnak-Johnston. Where, as here, the nature of the offence charged is that it is a single offence which is committed throughout the period of non-compliance we would suggest that it would require very clear words in the summons and in the presentation of the case to limit it to a particular day.
“No rational prosecutor would wish to proceed in that way without some wholly exceptional circumstance, and no rational defendant would understand the charge as being limited to one day unless the prosecutor specifically said that this was the position. Once the offence is a continuing offence starting at the expiry of the date for compliance and ending, if at all, at some point thereafter, the end date is not, we would suggest, a material averment in the determination of guilt. If it is disputed, which it was not in this case, it will be a matter for the trial court to determine if it is relevant to sentence. Absent some special circumstance, the court is not constrained in that exercise by dates in a summons or an indictment. Still less is it constrained when dealing with confiscation because of the terms of ss.8 and 76 of POCA.”
The Court of Appeal judge said it was relevant that Mr Kamyab knew exactly what was alleged. “The skeleton arguments served on his behalf pre-Panayi demonstrate that he was in no doubt about that. In any event, there is no technical deficiency in the summons.”
He added that, whilst recognising that HHJ Cole did not have the advantage of the decision in Roth, it must follow that he was wrong to conclude that the summons was confined to the commission of an offence on a single day, and therefore wrong to limit the confiscation order to one day's receipt of rent from the flats.
Lord Justice Edis said: “This appeal therefore succeeds because the judge was led into error by his conclusion that he was bound by Panayi to hold that he was limited to making a confiscation order for the benefit obtained on one day. He should have continued the proceedings, made a finding as to the benefit, applying s.8 of POCA, and made a finding as to the available amount, before making a confiscation order based on a benefit figure far higher than appears in the order which he wrongly made.”
He then addressed the “considerably more difficult issue” of the powers of the Court of Appeal when determining a prosecutor’s appeal against a confiscation order made in the lower court.
Edis LJ said: “In the absence of any other power to deal justly with this situation, we have carefully considered whether there is a way in which this court can address this problem by doing the work which the Crown Court should have done.
“There is no doubt that this court has a power to vary the order and a power to receive evidence in order to enable it to do so. Article 7 of the Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003 (SI 2003/82) provides for evidence to be heard in the Court of Appeal and Article 8 allows for directions to be given by a single judge of the Court of Appeal. The proceedings would then have to be determined by the full court, and would take some time.”
He noted that the resources of the Court of Appeal were not best used for this kind of work. “The demands on the court are considerable and simply do not allow for lengthy hearings of this kind which should have been sorted out in the lower court.”
However, the Court of Appeal judge added that this was “a highly unusual situation” for the following reasons:
a. The confiscation proceedings were substantial and, depending on their outcome, there was a large potential gain for the public purse. If that turned out to be the case, it would be unjust for that gain to be retained by Mr. Kamyab. The enforcement notice was over a decade old in this case.
b. The problem was created by what appeared to the court to be "a less than perfect" statutory appeal route which, it was to be hoped, might receive Parliamentary attention in the foreseeable future, with the advice of the Law Commission to assist in achieving improvements.
c. The problem should never recur. "We have said in the clearest terms that disposing of confiscation proceedings on a preliminary issue of law is, as the powers of this court currently stand, a dangerous course and one which we do not expect to see again. Confiscation proceedings should be conducted so that this court can vary orders if the prosecution appeals successfully against them without having to conduct detailed fact-finding hearings. If Parliament chooses to bestow a power to remit proceedings to the Crown Court so that they can be continued to a conclusion, then this practice may change in appropriate cases."
d. The reason the judge fell into the error of proceeding as he did was his application of a decision of this court, Panayi, which was unlikely to be frequently followed in the future.
e. The prosecution was not solely culpable for what happened. They should have resisted the procedural suggestion that a preliminary issue should be tried, but they were not the sole authors of the problem.
Therefore, “on this one occasion only”, the court was prepared to (i) order that the application for leave to appeal be granted, (ii) hold the judge's ruling on law was wrong, (iii) allow the appeal and (iv)consider at a further hearing what the remedy should be and whether to vary the confiscation order made.