Ali v R

Rent or housing benefit received from an unauthorised use of land is not benefit from criminal conduct under the Proceeds of Crime Act 2002 unless the conduct then constituted an offence. For breach of a planning enforcement notice, that occurs only after the period for compliance has expired. The position may differ if a clear finding establishes an inchoate offence, such as an agreement or intention formed in advance not to comply with any notice.

A defendant’s illness and absence do not automatically prevent confiscation proceedings or the application of statutory assumptions. The controlling question is whether the proceedings are fair in all the circumstances. A stay for abuse of process is exceptional and confined to true oppression.

Ali v R concerned confiscation following the appellant’s conviction in the magistrates’ court for failing to comply with a planning enforcement notice. The Crown Court treated him as having a criminal lifestyle and made a confiscation order of £1,438,180.59. That sum included rents and housing benefit from four properties converted into flats without planning permission.

The appellant appealed against the confiscation order. He challenged the refusal to adjourn or stay the proceedings while he was unwell, the use of the statutory assumptions, and the inclusion of income received before compliance dates or from properties for which no enforcement notice had been served. The central issue was when rental income becomes benefit obtained from criminal conduct for the purposes of the Proceeds of Crime Act 2002.

1. Appeal allowed in part. The confiscation order was set aside and replaced by an order for £544,358, payable within six months, with five years’ imprisonment in default.
2. There is no rule preventing a confiscation order, or the application of the section 10 assumptions, merely because a defendant is involuntarily absent through illness. The question is whether it is fair to proceed in all the circumstances. Here, the judge was entitled to conclude that a fair hearing remained possible because the defence case had been set out in section 17 statements, the appellant was represented, and relevant evidence could have been obtained from other witnesses.
3. The jurisdiction to stay confiscation proceedings for abuse of process must be exercised sparingly and is confined to true oppression. The judge did not err in refusing a stay or a further adjournment.
4. Under section 76 of the Proceeds of Crime Act 2002, criminal conduct means conduct constituting an offence. Under section 179 of the Town and Country Planning Act 1990, unauthorised use becomes criminal only after the period for complying with an enforcement notice expires. Income received before that date, or from properties for which no notice had been served, could not therefore be confiscated as benefit from criminal conduct.
5. An inchoate conspiracy or attempt to defeat the planning regime could in principle amount to criminal conduct. It required a clear finding of an ex ante agreement or intention not to comply with any notice. No such finding, agreement, or attempt had been established on the evidence.
6. The benefit from continued non-compliance was not limited to the dates charged in the summons. On varying the order under section 11(3) of the Criminal Appeal Act 1968, the court could take account, under section 8(2) of POCA, of conduct up to the Crown Court’s confiscation decision. The reduced order did not, taking the case as a whole, deal with the appellant more severely on appeal.

• Court of Appeal (Criminal Division) — allowed the appeal in part and substituted a confiscation order of £544,358: [2014] EWCA Crim 1658.
• Crown Court at Harrow, sitting at Norwich — on 25 September 2012, HHJ Holt made a confiscation order for £1,438,180.59 following the appellant’s committal for sentence.
• Brent Magistrates’ Court — on 29 September 2010, convicted the appellant of failing to comply with a planning enforcement notice.