Malhi, R. v

A court considering confiscation in a defendant’s absence must decide whether it is fair to proceed in all the circumstances. Fairness may be established where the defendant has been warned, has had an opportunity to provide evidence or representations, and the court can take account of available medical material. A very substantial delay in seeking leave to appeal against conviction requires cogent justification, especially where the delay prevents investigation of the proposed ground. Where a statutory increase in the maximum default term may have retrospective effect and the point has not been properly researched, the issue may be adjourned without preventing enforcement of the confiscation order.

In 2006, Hardip Singh Malhi pleaded guilty at Birmingham Crown Court to conspiracy to obtain property by deception. He received 12 months’ imprisonment. A benefit figure of £803,831.66 was agreed, but a nominal confiscation order of £1 was made because he then had no available assets.

After he purchased a property in 2010, the prosecution applied under section 22 of the Proceeds of Crime Act 2002 to redetermine the available amount. Following two non-attendances, the Crown Court proceeded in his absence in July 2015, found an available amount of £108,010, and imposed a five-year default term.

The applicant sought an extension of time to challenge his conviction and renewed his application for leave to appeal against the confiscation order. The issues were whether the proceedings could fairly continue in his absence and whether the increased default maximum under the Serious Crime Act 2015 applied to earlier offending.

1. The court refused the application for an extension of time and for leave to appeal against conviction. The delay of more than nine years had no cogent justification. The former solicitors’ firm no longer existed, so the proposed account that the guilty plea resulted from undue pressure could not be investigated. The available material also indicated a strong prosecution case.

2. The court refused leave to appeal against the redetermination of the available amount on the ground that it had been made in the applicant’s absence. Applying R v Salah Ali [2014] EWCA Crim 1658, the governing question was whether it was fair to proceed in all the circumstances. The applicant had failed to attend an earlier hearing, had been warned that the court could proceed without him, and could have supplied evidence or made representations. The Crown Court had the psychiatric material and could have accommodated any attendance difficulty.

3. The interests of the applicant’s wife and child did not make the hearing unfair. The wife had communicated with the court, and evidence or submissions about her asserted beneficial interest could have been placed before it. That asserted interest was not recorded in the Land Registry documentation.

4. The court did not determine whether the Serious Crime Act 2015 increase from three to five years in the maximum default term applied to offending before its commencement. That discrete issue was adjourned to the full court for research and argument with the Crown. Enforcement was not stayed; only the default-period question remained outstanding.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 512, refused the extension of time and refused leave to appeal against the confiscation redetermination, except that it adjourned the issue of the appropriate default term.
• Crown Court at Birmingham: On 14 June 2006, sentenced the applicant after his guilty plea and made a nominal confiscation order. On 3 July 2015, redetermined the available amount under section 22 of the Proceeds of Crime Act 2002 in his absence and imposed a five-year default term.