Oyebola, R v

A defendant with a criminal lifestyle is assessed for benefit from general criminal conduct, which includes the particular criminal conduct of conviction. Rental income produced by property acquired through criminal mortgage fraud is criminal benefit in the recipient’s hands. In a criminal-lifestyle case, there is no apportionment of that rental income between tainted and untainted contributions to the property’s acquisition.

The statutory assumptions may be displaced only where the defendant rebuts them or shows that their application would be wrong or create a serious risk of injustice. Credits before the relevant day cannot be treated as assumed benefit. Confiscation calculations must also avoid double-counting the same proceeds.

The appellant was convicted at Wood Green Crown Court of mortgage-fraud and money-laundering offences. On 13 April 2012, the judge made a confiscation order under the Proceeds of Crime Act 2002, finding benefit of just over £1.5 million and an available amount of just under £667,000.

He sought permission to appeal against the confiscation order. The issues included the procedure at the confiscation hearing, the meaning of general criminal conduct where a criminal lifestyle was accepted, rental income from fraudulently mortgaged properties, the treatment of pre-commencement conduct, the valuation of particular properties, assumed bank credits, and alleged double-counting. The Crown accepted that the benefit calculation required adjustment following R v Waya [2012] UKSC 51.

1. Appeal allowed in part. The judge’s robust, predominantly paper-based procedure was fair. Written submissions were commonplace, the parties had repeatedly failed to comply with directions, and the appellant had not shown material disadvantage.
2. Where criminal lifestyle is established, general criminal conduct includes the particular conduct of conviction. The court followed Jawad v R [2013] EWCA Crim 644 on that construction of section 6(4) of the Proceeds of Crime Act 2002.
3. Rental income generated by a property acquired through criminal mortgage funding is a benefit from criminal conduct. R v Waya [2012] UKSC 51 did not address rental income and did not undermine the conclusion in R v Pattison [2007] EWCA Crim 1536. In a criminal-lifestyle case, no apportionment of rents was available by reference to the use of untainted money in acquiring the property.
4. The Crown could exclude pre-24 March 2003 convictions from particular criminal conduct while treating post-commencement rental income as benefit from general criminal conduct. The appellant had not rebutted the statutory assumptions. However, credits before the relevant day, 22 October 2002, could not be included as assumed benefit.
5. The judge was entitled to treat the appellant’s asserted equitable interest in 3 Ashbourne Avenue as acquired through criminal conduct and as a realisable asset. The court accepted the Crown’s concession that no benefit should be attributed to two other properties in light of R v Waya [2012] UKSC 51. It also held that £97,000 sale proceeds from 7 Hanover Lodge had been counted twice and must be deducted once.

The court invited the Crown to submit a draft revised confiscation order within seven days.

• Court of Appeal (Criminal Division): Allowed the appeal in part and directed revision of the confiscation order: [2013] EWCA Crim 1052.
• Court of Appeal (Criminal Division): Earlier refused the appellant’s renewed application for permission to appeal against conviction. That decision was not reopened: [2012] EWCA Crim 460.
• Wood Green Crown Court: On 13 April 2012 made the confiscation order under the Proceeds of Crime Act 2002 following the appellant’s convictions.