Bestel & Ors v R

A change in the law does not of itself justify extending time to appeal. The court must respect finality, but may extend time where refusal would cause substantial injustice. In confiscation cases, the continuing consequences of enforcement and the availability of relief under Proceeds of Crime Act 2002, section 23 are material.

Section 23 can adjust an inadequate available amount, including by allowing for secured charges and later falls in value. It cannot normally reopen an earlier benefit assessment or restore untainted assets already used to satisfy an excessive order. A defendant does not abscond merely by voluntarily missing a confiscation hearing. The court must fairly assess the available amount on the evidence before it, despite the defendant's burden of proof.

Three applicants sought substantial extensions of time to challenge confiscation orders made after convictions for mortgage fraud. Their benefit had been assessed under the approach later displaced by Waya [2012] UKSC 51.

Jean Pierre Bestel challenged a confiscation order made at Maidstone Crown Court after he was absent from the hearing. The Crown's material showed that properties acquired with mortgage loans were heavily charged, but the judge found that his available amount equalled his benefit. Naim Raza and Sajid Bashir had agreed their benefit figures at their respective confiscation hearings in Bradford Crown Court. Both relied principally on the later change in law and faced pending enforcement.

The common issue was when finality should yield to substantial injustice in a late confiscation appeal following a change in law.

1. Bestel's appeal was allowed. The court granted an extension of time and leave on grounds concerning the available amount. It remitted the confiscation proceedings for a rehearing before a different judge under section 11(3A) of the Criminal Appeal Act 1968.

2. Finality remains the governing principle in change-of-law applications. A confiscation order correctly made under the law then understood is not reopened merely because the law has since changed. The question is whether refusal would cause substantial injustice. The relevant date for finality is ordinarily the date of the confiscation order, not later enforcement, although enforcement consequences remain relevant to the justice of refusing an extension.

3. Section 23 of the Proceeds of Crime Act 2002 can reduce an available amount where assets have fallen in value. It requires account to be taken of a lender's charge over the property. It cannot, however, ordinarily correct an erroneous benefit assessment or recover untainted assets already paid under an excessive confiscation order.

4. Bestel had not absconded within section 27 merely because he deliberately failed to attend. Absconding requires, at least, an attempt to place oneself beyond the court's reach to escape judgment. The judge could proceed in his absence if the process remained fair, but the prosecution material itself showed a clear probability that Bestel's equity was substantially below the benefit figure. The burden under section 7(2) did not permit the judge to ignore that evidence. Further inquiry was required.

5. Once Bestel's appeal was properly before the court, the rehearing was not confined to available amount. Benefit was to be reassessed under the current law, including the proportionality principle in Waya [2012] UKSC 51.

6. Raza's and Bashir's applications were refused. Raza had not shown substantial injustice beyond the change in law, and section 23 adequately protected him against overvaluation of available assets. Bashir had agreed his benefit figure as part of a compromise and, without waiving privilege or explaining the basis of that agreement, could not show that it rested solely on the former law.

• Court of Appeal (Criminal Division): Bestel was granted an extension and leave to appeal; his confiscation proceedings were remitted for rehearing. The applications by Raza and Bashir for extensions of time were refused.
• Maidstone Crown Court: A confiscation order was made against Bestel on 13 July 2012. His application to rescind the order was refused in August 2012.
• Bradford Crown Court: A confiscation order was made against Raza on 12 July 2011 and against Bashir on 19 December 2011.