Shabir, R. v

In substantial confiscation proceedings, the court must proceed on a clear factual basis and make findings sufficient to identify the benefit obtained. An appellate court should not determine whether the whole payment obtained by a dishonest claim, or only the proved dishonest excess, constitutes benefit under the Proceeds of Crime Act 2002 when the relevant agreement and underlying records are unclear.

Clear and analytical first-instance reasons are important, particularly where the order may be realised from substantial assets. The appropriate course is to obtain agreed factual material and supporting documents before deciding the statutory issue.

The appellant, a pharmacist, was convicted at Leeds Crown Court of false accounting and obtaining a money transfer by deception through inaccurate prescription-claim forms. He received concurrent nine-month sentences. On 9 January 2006, the Crown Court made a confiscation order for £212,464.17 under the Proceeds of Crime Act 2002.

The sentencing judge had treated the financial gain as £464, but held in confiscation proceedings that the benefit was the full value of payments made on forms containing dishonest entries. The appellant obtained leave to appeal the confiscation order and sought leave, out of time, to appeal his convictions. The central question was whether the statutory benefit could be the whole payment or only the dishonest excess, given uncertainty about the factual basis agreed at trial.

1. The renewed application for leave to appeal against conviction was refused. Counsel did not pursue the proposed ground after the Crown clarified the material that had caused the earlier misunderstanding.

2. The court did not determine the confiscation appeal at this hearing. The appeal raised an important question about whether benefit under the Proceeds of Crime Act 2002 was the whole sum paid on prescription forms containing dishonest entries, or only the amount by which the appellant had been overpaid.

3. That issue could not safely be decided because the court lacked a clear factual foundation. It was unknown whether the £464 figure represented only provable instances of dishonesty for trial purposes, or the result of a complete audit showing that the appellant was otherwise entitled to almost all of the payments.

4. Thomas LJ stressed that, in substantial confiscation proceedings, the first-instance judge should make clear findings and give analytical reasons. This enables an appellate court to identify the factual basis on which the statutory calculation must be made.

5. The court directed the parties to provide a statement of what had been agreed at trial, supporting documentation, and then revised skeleton arguments. The confiscation appeal was to be relisted after that material had been obtained. The application to extend the representation order to solicitors was refused, without prejudice to a later application if the factual inquiry proved more complex.

The court observed, without deciding the point, that there was considerable force in the submission that requiring the Crown to prove every dishonest transaction in a case of widespread false claiming could make confiscation legislation unworkable.

• Court of Appeal (Criminal Division) [2008] EWCA Crim 854: refused renewed leave to appeal against conviction. It deferred determination of the confiscation appeal and gave directions for further factual material.

• Leeds Crown Court: in July 2005, convicted the appellant of false accounting and obtaining a money transfer by deception and imposed concurrent nine-month sentences.

• Leeds Crown Court: on 9 January 2006, made a confiscation order for £212,464.17 under the Proceeds of Crime Act 2002.