Nwangoro, R v

Under the pre-amendment Criminal Justice Act 1988, a prosecutor’s minimum-amount notice was a procedural requirement. It did not ordinarily remove the Crown Court’s fundamental jurisdiction to make a confiscation order. A written prosecution statement may satisfy the notice requirement if it makes clear that an order exceeding the minimum amount can be made.

A causal connection for pecuniary advantage need not be demanding. It may be established where offending enables rental income, mortgage payments, and the acquisition or retention of appreciating property. Procedural unfairness falling short of an abuse of process may nevertheless justify an appellate reduction of a discretionary confiscation order, including to remedy a breach of Article 6(1).

The appellant pleaded guilty at Harrow Crown Court to conspiracy to defraud by making false housing and council tax benefit claims over many years. The offending allowed him to occupy subsidised council accommodation while letting properties he owned. The Crown Court made a confiscation order of £240,000 under the Criminal Justice Act 1988, with compensation orders addressing the council’s direct loss.

On appeal, the appellant challenged the court’s jurisdiction because the prosecutor’s notice had been late, alleged unfairness and an Article 6(1) breach arising from the recorder’s intervention, disputed the causal connection between the offending and capital appreciation, and challenged the assessment of realisable property.

1. Appeal allowed in part. The court quashed the £240,000 confiscation order and substituted an order for £200,000. It was minded, subject to further argument, to reduce the default term from 35 months to two years and three months.

2. The prosecutor’s notice under section 72 was procedural, rather than a condition of the Crown Court’s fundamental jurisdiction. The court followed the jurisdictional distinction in R v Sekhon [2002] EWCA 2954. A notice had in any event been served before the order was made, and the prosecutor’s July 2004 statement was likely itself sufficient written notice. The recorder’s mistaken belief that he could initiate the inquiry did not invalidate the postponement or the eventual order.

3. There was no judicial bad faith, no abuse of process requiring the proceedings to be quashed, and no basis to infer that the guilty plea or compensation payment had been induced by an assurance against confiscation. However, the prosecution had allowed the appellant temporarily to think that only compensation would be sought. The recorder’s forceful intervention in seeking a confiscation inquiry was also unfortunate. Together, these matters created unfairness and a breach of Article 6(1) of the European Convention on Human Rights.

4. The recorder was entitled to find a sufficient causal connection between the offending and both rental income and property appreciation. The subsidised accommodation enabled the appellant to let a property, preserve its mortgage, use sale proceeds to acquire another property, and obtain further borrowing to acquire a third. Sections 71(5) and 102(5) imposed no demanding causal test.

5. The court did not decide whether mortgage payments should reduce the value of the pecuniary advantage represented by capital appreciation. That issue was arguable, but had been conceded below. Under section 71(1), the ultimate amount of an order remained discretionary.

6. The challenge to realisable property failed. The recorder had allowed for the wife’s existing half interest in the matrimonial home, and there was no evidence establishing further interests. Any further proprietary claim could be advanced in the High Court.

• Court of Appeal (Criminal Division): Allowed the appeal in part and substituted a confiscation order of £200,000 for the Crown Court’s £240,000 order: [2006] EWCA Crim 3061.
• Harrow Crown Court: Following a guilty plea to conspiracy to defraud, Mr Recorder Mitchell QC made a confiscation order of £240,000 under the Criminal Justice Act 1988.