Waite v R.

An exceptionally late application for permission to appeal a confiscation order may be refused where the applicant gives no proper explanation for the delay and the proposed grounds lack merit. The potential use of Proceeds of Crime Act 2002 section 22 to revise the available amount does not itself make an extension of time just. A challenge based on joint confiscation liability cannot assist where the order was not made jointly against co-accused. Appellate intervention is also unwarranted where alleged errors in confiscation proceedings amount to unarguable challenges to case management decisions or factual findings.

The applicant sought to renew applications for an extension of time and permission to appeal in two confiscation matters.

The first arose from his 2008 conviction for conspiracy to defraud. A confiscation order, made by consent, assessed his benefit at £36,572 but fixed the available amount at £1. Following later convictions and the discovery of property equity, the prosecution sought to increase the available amount under section 22 of the Proceeds of Crime Act 2002. The applicant challenged the original order more than ten years late.

The second arose from his 2016 fraud convictions and the confiscation order made on 17 October 2018. He challenged the conduct of the proceedings, the treatment of his companies and trusts, the criminal-lifestyle assumptions, and the available amount. The central issues were whether time should be extended and whether either proposed appeal disclosed an arguable error.

Both renewed applications for permission to appeal were dismissed. The court also refused the necessary extensions of time and ordered the applicant to pay prosecution costs of £353.60.

1. In relation to the 2008 confiscation order, the delay of about ten years and five months was extreme. The applicant had provided no proper explanation or justification for it. The fact that section 22 of the Proceeds of Crime Act 2002 could permit a later increase in the available amount did not make an extension just; if it did, the point could arise in every lifestyle-based confiscation case.
2. The proposed grounds were in any event without merit. The order had not been made jointly against the applicant and his co-accused. The rule relied upon from R v Ahmad and another (Respondents) [2014] UKSC 36 was therefore inapplicable. The earlier Court of Appeal judgment concerning sentence had not determined that the applicant and his co-accused received only 10 per cent of the fraud proceeds.
3. In relation to the 2018 order, the court agreed with the single judge that the challenges were, in substance, unarguable attacks on case-management decisions and factual findings. There was no unfairness in the limited adjournment or in allowing an amended section 16 statement with time to respond. The judge had been entitled to make findings about the companies, the deeds of trust, criminal lifestyle, the statutory assumptions, and the available amount. The order was neither wrong in law nor disproportionate.

• Court of Appeal (Criminal Division): By [2020] EWCA Crim 768, the court dismissed both renewed applications for permission to appeal and refused extensions of time.
• Court of Appeal (Criminal Division): On 6 June 2019, the Full Court refused a renewed application for permission to appeal against the 2016 convictions.
• Crown Court at Swansea: On 21 July 2016, the applicant was convicted of seven fraud offences. On 17 October 2018, the court made a confiscation order under the Proceeds of Crime Act 2002.
• Crown Court at Leicester: In 2008, the applicant was convicted of conspiracy to defraud and a consent confiscation order was made. A later appeal reduced his custodial sentence but did not affect the confiscation order.