NADIA SAROYA v THE QUEEN

Whether an offence was committed over at least six months for the criminal-lifestyle condition in section 75(2)(c) of the Proceeds of Crime Act 2002 depends first on the construction of the offence-creating provision and then on the factual basis of the conviction.

An offence under section 111A(1)(b) of the Social Security Administration Act 1992 is capable of continuing. Where a false document is furnished to obtain a benefit paid in a series of instalments, it carries an implied continuing representation that the document is true while payments are made in reliance on it. The criminal-lifestyle assumptions therefore apply where that continuing conduct lasts at least six months.

The appellant pleaded guilty to dishonestly furnishing a false tenancy agreement to the London Borough of Croydon, contrary to section 111A(1)(b) of the Social Security Administration Act 1992. The agreement supported a housing-benefit claim for a property which she owned jointly with her husband.

At the Crown Court at Croydon, a confiscation order of £404,179.82 was made under section 6 of the Proceeds of Crime Act 2002. The judge treated the case as one involving a criminal lifestyle and applied the statutory assumptions.

On appeal, the appellant contended that her sole offence was complete when she furnished the document on one day. The issue was whether that offence had nevertheless been committed over a period of at least six months within section 75(2)(c) of the 2002 Act.

1. Appeal dismissed. The court granted leave to vary the notice of appeal and granted leave to appeal, but upheld the confiscation order.

2. Whether an offence can be committed over at least six months for section 75(2)(c) of the Proceeds of Crime Act 2002 is determined by construing the provision creating the offence. If the provision is capable of creating a continuing offence, the court must then examine the factual basis on which the case was presented and determined. That approach was consistent with Barnet LBC v Kamyab [2021] EWCA Crim 543.

3. Section 111A(1)(b) of the Social Security Administration Act 1992 was capable of creating a continuing offence. The provision operates in the context of benefit claims that may produce regular payments over many years. A false document furnished to support such a claim carries an implied representation of its truth, made with a view to obtaining the continuing payments.

4. There was no principled distinction, for this purpose, between making a false statement under section 111A(1)(a) and furnishing a false document under section 111A(1)(b). Both may be complete after a single payment claim, but both may continue where the representation is relied on to secure a series of payments. The reasoning concerning continuing false representations in R v Andrewes [2020] EWCA Crim 1055 and R v Carter [2006] EWCA Crim 416 was materially relevant by analogy.

5. On the undisputed factual basis, the false tenancy agreement supported payments from early 2012 until February 2017. The offence therefore continued for more than six months. It satisfied section 75(2)(c), so the Crown Court was required to make the section 10 assumptions unless an applicable statutory exception was established.

• Court of Appeal (Criminal Division): Leave to vary the notice of appeal and leave to appeal were granted, but the appeal against the confiscation order was dismissed: [2022] EWCA Crim 602.
• Crown Court at Croydon: A confiscation order of £404,179.82 was made on 14 May 2021 under section 6 of the Proceeds of Crime Act 2002.