R v Khuram Janjua

A final appellate determination that an agreed confiscation benefit figure cannot be reopened prevents that figure being challenged again during a later variation of the available amount under section 22 of the Proceeds of Crime Act 2002. A judge cannot err by failing to address an argument which was not advanced at the hearing. An agreed compromise on the benefit figure remains binding where the earlier appellate court has found no unfairness or wrong advice and has conclusively rejected a belated challenge.

Following convictions for conspiracy to supply Class A drugs, the applicant was made subject to a confiscation order in 2012. The agreed benefit figure was £120,000 and the available amount was £3,874.

After the value of a property in the applicant’s sole name had increased, the Crown applied under section 22 of the Proceeds of Crime Act 2002. Birmingham Crown Court increased the available amount to £66,517.76. The applicant renewed an application for leave to appeal after a single judge had refused permission.

Two grounds alleging double counting were no longer pursued. The remaining ground contended that the judge should have reconsidered whether the original benefit figure complied with R v Waya [2012] UKSC 51. The central issue was whether that contention was arguable in the variation appeal.

1. The renewed application for leave to appeal was refused. The two double-counting grounds had been abandoned and did not require determination.
2. There was no arguable complaint that the Crown Court judge failed to address the proposed Waya point. Despite the absence of a recording of the hearing, the available material showed that the applicant had not asked the judge to reopen the original benefit figure. A failure to determine an argument not put to the judge could not found an appeal.
3. The point was also unarguable on its merits. In the earlier Court of Appeal proceedings, the applicant’s attempt to challenge the 2012 benefit figure out of time had been finally and conclusively rejected: [2021] EWCA Crim 1797. That decision established that the figure was agreed as part of a compromise and could not be reopened.
4. The court rejected the contention that an observation made by the single judge in the earlier permission process preserved a right to raise further challenges to the benefit figure. The earlier appellate decision had found neither unfairness nor wrong advice. The original order was just in the circumstances, irrespective of the detail of the calculation contributing to the agreed figure.
5. Accordingly, the later section 22 variation proceedings did not provide a route to revisit the settled benefit figure. The renewed application was refused.

• Court of Appeal (Criminal Division) — the renewed application for leave to appeal against the 2023 variation order was refused: [2024] EWCA Crim 202.
• Birmingham Crown Court — on 5 April 2023, the court granted the Crown’s section 22 application under the Proceeds of Crime Act 2002 and increased the available amount from £3,874 to £66,517.76.
• Court of Appeal (Criminal Division) — on 18 November 2021, the court refused the applicant’s out-of-time application for leave to appeal against the original confiscation order: [2021] EWCA Crim 1797.
• Birmingham Crown Court — on 18 December 2012, a confiscation order fixed an agreed benefit figure of £120,000 and an available amount of £3,874.