Heron, R v

An order which grants a receiver enforcement powers takes effect when made, even if its exercise is stayed pending another proceeding. The time for appealing runs from the date of the order, not from the later removal of the stay.

Under the Proceeds of Crime Act, a gift made at any time is tainted where the gifted property was obtained through, or directly or indirectly represented property obtained through, the defendant’s general criminal conduct. The statutory assumptions and their six-year period do not govern that separate tainted-gift inquiry.

A confiscation order had been made against David Jones. Mandy Heron, the third-party recipient of funds used to acquire two properties, sought an extension of time and permission to appeal a Crown Court order of 9 December 2011. That order varied the receivership order to give the receiver powers over 5 St Augustine Court, but prohibited their exercise until the conclusion of Heron’s judicial review appeal.

The Crown Court had previously found that the funds given for the properties were tainted gifts. The Civil Division later dismissed Heron’s judicial review appeal in Heron v SOCA [2013] EWCA Civ 1106. The central issues were whether the 2011 order was appealed in time and whether there was any arguable challenge to the tainted-gift findings.

1. The applications for an extension of time and for permission to appeal were refused as wholly without merit.

2. The order of 9 December 2011 expressly conferred the receiver’s powers over St Augustine Court with immediate effect. It only postponed their exercise pending the judicial review appeal. It did not postpone the order’s legal effect. Any appeal therefore had to be brought within 14 days of 9 December 2011. An application made in August 2013 was substantially out of time, and the lengthy history of unsuccessful attempts to prevent enforcement supplied no basis for an extension.

3. In any event, the proposed appeal lacked merit. The relevant determination was the December 2009 finding, made after Heron had participated, that the transfers were gifts and were tainted under section 77(3) of the Proceeds of Crime Act. The provision applies to a gift made at any time where the property was obtained as a result of, or represented property obtained as a result of, general criminal conduct.

4. The statutory assumptions concerning expenditure and the associated six-year period did not arise in that tainted-gift inquiry. The judge’s factual findings established that Old Bellgate Wharf had been purchased with criminally derived funds. Its sale proceeds therefore retained that character when used towards St Augustine Court. The further £88,000 was also found to have been a gift from the defendant’s criminally derived wealth.

5. There was no evidential basis to treat the £88,000 as a loan or to find that Heron had provided consideration for the gifts. The court declined to certify any point of law of general public importance.

• Court of Appeal (Criminal Division): The court refused Heron’s applications for an extension of time and permission to appeal: [2014] EWCA Crim 925.
• Court of Appeal (Civil Division): Heron’s judicial review appeal concerning enforcement was dismissed on 22 July 2013 in Heron v SOCA [2013] EWCA Civ 1106.
• Court of Appeal (Criminal Division): On 23 June 2010, the court upheld the appointment of the receiver and related enforcement decisions, and refused the defendant leave to appeal. A further renewed application concerning the December 2009 order was refused on 26 April 2012.
• Crown Court: His Honour Judge Baker QC made the confiscation order on 11 May 2007, found the property transfers to be tainted gifts on 17 December 2009, and made the relevant further receivership variation order on 9 December 2011.