Hockey, R. v

A challenge to an agreed confiscation order requires compelling grounds. The applicant must provide evidence capable of showing that the order rested on a materially wrong legal or factual basis. The special analysis applicable where a mortgage advance remains beneficially the lender’s until completion cannot be assumed without proof of the transaction’s legal machinery. A case concerning the valuation of property transferred subject to an encumbrance does not determine whether a defendant obtained loan monies used to buy property.

Consent confiscation orders will be reopened only in the most exceptional circumstances, ordinarily where there is a well-founded basis for concluding that the process as a whole was unfair. An exceptionally late appeal also requires a good explanation; finality in litigation is a substantial consideration.

The applicant pleaded guilty in 2006 to offences of obtaining or attempting to obtain money transfers by deception and using false instruments. The offences concerned fraudulent mortgage applications. He received a suspended sentence.

The prosecution sought a confiscation order under section 6 of the Proceeds of Crime Act 2002. Although the Crown Court refused the application, the Court of Appeal allowed the prosecutor’s appeal and made an agreed order for £298,457: [2007] EWCA Crim 1577. The sum was paid.

Following an earlier procedural false start in 2017, the applicant sought permission under section 10 of the Criminal Appeal Act 1968 to appeal against the 2007 order, with an extension of more than ten years. He contended that the benefit should have reflected the equity in the properties rather than the mortgage advances.

1. The renewed application was dismissed. The applicant had not shown that the agreed confiscation order should be reopened, and no good reason justified the exceptionally long extension of time.

2. The authority concerning a conventional mortgage-funded purchase did not assist without proof that the same legal machinery had been used. On the assumed facts in R v Waya [2012] UKSC 51, the mortgage advance remained beneficially owned by the lender until it passed directly to the vendor on completion. The borrower therefore never obtained the money and acquired only an equity of redemption. That analysis would differ if the loan had been at the defendant’s free disposal.

   There was no evidence of the legal machinery used for the applicant’s two purchases. His former solicitors’ file had been destroyed and the material put forward was equivocal. The court could not assume that the transactions replicated those in R v Waya.

3. R v Pattison [2007] EWCA Crim 1536 was materially different. It concerned property transferred directly to the defendant while encumbered in favour of a third party, and the valuation question was whether that encumbrance should be deducted. It did not address whether a defendant had obtained loan funds used to acquire property.

4. The order had been made by consent in an agreed sum. Applying Morfitt [2017] EWCA Crim 669, Perkes [2017] EWCA Crim 10 and Kirman [2010] EWCA Crim 614, the court held that consent confiscation orders are reopened only in the most exceptional circumstances, with a well-founded case that the entire process was unfair. An allegation of erroneous advice does not ordinarily justify going behind such an order.

5. The application was not based on new law. Any arguable point could have been raised at, or soon after, the 2007 hearing. The thin explanation for delay, coupled with the importance of finality, meant that an extension exceeding ten years was not in the interests of justice.

• Court of Appeal (Criminal Division), 2018: dismissed the renewed application for permission to appeal against the agreed confiscation order and refused an extension of time.

• Court of Appeal (Criminal Division), 2017: an earlier procedural false start involved another constitution of the court: [2017] EWCA Crim 742. The judgment does not state its outcome.

• Court of Appeal (Criminal Division), 2007: allowed the prosecutor’s appeal from the refusal to make a confiscation order, and made an agreed order for £298,457: [2007] EWCA Crim 1577.

• Bristol Crown Court: sentenced the applicant after guilty pleas in 2006 and refused the prosecution’s confiscation application.