Pigott v R

A judge does not display actual or apparent bias merely by expressing justified scepticism, identifying a provisional sentencing view founded on the evidence, or refusing a postponement where competent representation remains available. The remarks and decisions must be assessed cumulatively and in context.

A default term for non-payment of a confiscation order must further its distinct purpose of securing payment. Under section 139(4) of the Powers of Criminal Courts (Sentencing) Act 2000, the statutory maximum remains discretionary. The court must consider the amount ordered, the circumstances and the need to remove any advantage from deliberate non-compliance. It must not treat the maximum as automatic merely because the order falls within that band.

The appellant pleaded guilty at Canterbury Crown Court to cheating the public revenue and assisting another to retain the benefit of criminal conduct arising from an MTIC fraud. A confiscation order of £1,498,887.60 was made on 30 November 2007 under the Criminal Justice Act 1988. The judge allowed two months for payment and imposed ten years’ imprisonment in default.

On appeal, the appellant alleged actual or apparent bias by the judge. He also challenged findings concerning realisable property and £1 million in hidden assets. In addition, he challenged the time allowed for payment and the default term. The central issue was whether any of those matters justified setting aside or varying the confiscation order.

1. The appeal was allowed only as to the default term. The court quashed the ten-year term of imprisonment in default and substituted eight years. The challenges to the confiscation order, the judge’s impartiality, and the time allowed for payment were dismissed or not entertained.

2. The judge’s comments during sentencing and confiscation proceedings did not establish bias or the appearance of bias. Her scepticism about the appellant’s information was justified by the evidence and was expressed provisionally. Her indication that she rejected the written basis of plea alerted counsel to the factual basis on which she was minded to sentence, allowing submissions to be made. Her refusal to postpone the confiscation hearing was also justified because the proceedings had already been delayed and the appellant received competent representation.

3. There was no error of law or principle in the findings on realisable property. The judge was entitled to accept the prosecution valuation, to find that a property held in another name belonged to the appellant, and to infer hidden assets of £1 million from his role, the movement of fraud proceeds and his capacity to conceal assets. Those findings were supported by substantial reasons and evidence.

4. The court declined to vary the time to pay. Ordinarily, the time required to realise or transfer assets is highly material when fixing time for payment. It was unnecessary to determine whether a risk of absconding was also relevant, because any reasonable period for payment had expired and the appellant had made no payment.

5. Section 139(4) of the Powers of Criminal Courts (Sentencing) Act 2000 sets maximum default periods by reference to the confiscation amount. The court applied the principles in R v Szrajber ((1994) 15 Cr App R (S) 821), R v French ((1996) 16 Cr App R (S) 841) and R v Smith ([2009] EWCA Crim 344). A default term is intended to secure compliance and ensure that a defendant gains nothing by wilful non-payment. The maximum is discretionary and must reflect all the circumstances, including the amount within the statutory band. Although the order exceeded £1 million, it did so by an amount which did not justify the ten-year maximum. An eight-year term was appropriate.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 2292, the court allowed the appeal to the limited extent of substituting eight years’ imprisonment in default for ten years. It otherwise dismissed the appeal against the confiscation order.
• Court of Appeal (Criminal Division): The appellant’s earlier appeal against sentence was dismissed on 10 October 2006. The judgment records that the allegations of bias then advanced were rejected.
• Crown Court at Canterbury: HH Judge Williams made the confiscation order of £1,498,887.60 on 30 November 2007, allowing payment by 31 January 2008 and imposing ten years’ imprisonment in default.