Neutral Citation Number: [2016] EWCA Crim 512
Case No. 2015/03650/C5 & 2015/04745/C5
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Wednesday 23rd March  2016

B e f o r e
LORD  JUSTICE  GROSS

MR  JUSTICE  MALES

and

HIS  HONOUR  JUDGE  KRAMER  QC
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A
 
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HARDIP  SINGH  MALHI
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Miss R Fairbairn appeared on behalf of the Applicant
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J U D G M E N T (Approved
LORD JUSTICE GROSS:  I shall ask Mr Justice Males to give the judgment of the court.

MR JUSTICE MALES:
1.  On 28th April 2006 in the Crown Court at Birmingham before His Honour Judge Creed the applicant, Hardip Singh Malih, who is now aged 30, changed his plea to guilty to conspiracy to obtain property by deception.  On 14th June 2006 he was sentenced to twelve months' imprisonment.  On that date His Honour Judge Creed also dealt with the issue of confiscation.  A benefit figure of £803,831.66 was agreed, but as the applicant had no available assets, a nominal confiscation order was made in the sum of £1.

2.  That position changed as a result of the purchase of a property by the applicant in 2010.  The property was at an address in Uttoxeter in Staffordshire.  The purchase price recorded at the Land Registry was £232,000, with a charge in favour of HSBC Limited.  That led to an application by the prosecution for the redetermination of the available amount under section 22 of the Proceeds of Crime Act 2002.  

3.  The application was listed on 18th May 2015, but the applicant did not attend.  It was said that he had been suffering from ill-health and that he was unfit to attend.  The hearing was adjourned, but on the basis that the applicant would be written to and advised that he must attend on the next occasion with his medical expert, and that if he failed to attend the court could proceed in his absence.  

4.  The hearing was next listed on 3rd July 2015.  The applicant did not attend and was not represented.  On that occasion His Honour Judge Creed determined that there was no reason why the applicant could not have presented evidence to the court and was satisfied that it was appropriate to proceed in his absence.  He did so having heard evidence from Dr Jeremy Kenny Herbert, a member of the Royal College of Psychiatrists, who was called on behalf of the prosecution.  It is clear from the transcript of the hearing that he also had before him medical evidence in the form of a psychiatric report prepared on behalf of the applicant.  The position was that the applicant was suffering from a depressive illness with some difference between the psychiatrists as to its severity (whether mild or moderate).  The judge observed that it would have been possible on his findings for the applicant to attend and that, if necessary, the hearing could have been dealt with so as to accommodate the applicant, for example by allowing for breaks in the hearing.  In any event, he said, there was no reason why suitable material could not have been filed with the court.  He referred to correspondence which had been entered into by the applicant's wife in connection with the proceedings.

5.  The applicant now seeks an extension of time in which to apply for leave to appeal against his conviction back in 2006, and renews his application for leave to appeal against the confiscation order made in July 2015 following refusal by the single judge.  

6.  The applicant has been represented today by Miss Fairbairn who has been only recently instructed following the refusal by the court of an application to vacate this hearing.  We are grateful for her assistance.

7.   We deal first with the application for an extension of time in which to apply for leave to appeal against conviction.  It is unnecessary to say much about the facts of the case.  In short, it was a conspiracy to obtain property by deception, which consisted of the fraudulent use of stolen chequebooks in order to obtain property from suppliers.

8.  The proposed ground of appeal against conviction is that the applicant's guilty plea was entered as a result of undue pressure being brought to bear upon him.

9.  In refusing the application for an extension of time and for leave to appeal against the conviction, the single judge observed:

"No adequate reason has been advanced for the massive delay [of over nine years]."

He pointed out that when investigations were sought to be made of the solicitors who acted for the applicant when he pleaded guilty, it transpired that the firm no longer exists.  It is not possible, therefore, even with the benefit of a waiver of privilege, to investigate the applicant's proposed account.  As the single judge observed, in cases of substantial delay there must be cogent reasons to justify granting leave after such time, and no valid reasons have been advanced.  We agree.  Likewise, we agree with his further comment:

"On the face of it this was a powerful prosecution case against the applicant, not least because of the highly incriminating material found hidden underneath his bed."

(That was a reference to parts of stolen chequebooks which had been used in the commission of the fraud, and to other documents relating to companies who were victims of the fraud.)

10.  Accordingly, the application for an extension of time in which to apply for leave to appeal against conviction is refused.

11.  We turn to the renewed application for leave to appeal against the confiscation order.  Miss Fairbairn made two points as to why leave should be given.  The first was that the re-determination of the available amount ought not to have been made in the applicant's absence.  The second related to the period of imprisonment in default of compliance with the confiscation order.

12.  As to the first point, whether it was appropriate to proceed in the absence of the applicant, she submitted that, although it was open to the judge to proceed in such circumstances in general, on the facts of this case it was not just to do so; that, in any event, the interests of the applicant's wife needed to be considered at the stage when the confiscation order was made, the property in question being the matrimonial home; and that the applicant and his wife also have a young son.  

13.  It is clear that, when considering proceeding with confiscation in the absence of a defendant, the court has a discretion, as was pointed out in R v Salah Ali [2014] EWCA Crim 1658, where, in giving the judgment of the court, Beatson LJ said this:

"41.  In this case, as in all cases, the question for the judge was whether, in all the circumstances, it was fair to proceed in the absence of the appellant. …"

14.  We have no doubt that in the circumstances of this case it was fair to proceed in the absence of the applicant.  He had already been absent from the previous hearing, which had had to be adjourned.  He had been warned about the need to be present, the need to provide evidence, and about the possibility of the court proceeding in his absence if he did not do so.  The court had before it the psychiatric evidence submitted on his behalf and was able to take that into account.  The depression from which it was said that he was suffering was unlikely to be resolved until the question of confiscation was dealt with.  There was no reason why representations could not have been made on the applicant's behalf in what was a straightforward case.

15.  So far as the interests of the applicant's wife are concerned, she had been in communication with the court.  It was entirely possible for any representations or evidence to have been put forward by the applicant on her behalf.  Her claimed beneficial interest was not reflected in the Land Registry documentation.  So on that first question of whether it was appropriate to proceed in the applicant's absence, we refuse the application.

16.  The second point concerns the period of imprisonment to be served in default in the event of non-compliance with the confiscation order.  The judge ordered a period of five years' imprisonment, which was the maximum applicable for an order in the range of £100,000 to £250,000.  However, that five year maximum was the result of an increase introduced by the Serious Crime Act 2015, which came into force on 1st June 2015.  Accordingly, it was in force at the date of the confiscation re-determination hearing in July, but the previous maximum period for that range was one of three years.

17.  Miss Fairbairn makes two submissions.  The first is that the increase from three to five years did not apply to offences committed before the increase came into force.  The second is that, since the amount of the confiscation order made in this case was £108,010 (that figure being arrived at after deducting from the purchase price of the property the mortgage amount in favour of HSBC), which figure was towards the bottom of the applicable range, it was not appropriate for the judge to order the maximum default period.

18.  The first of those submissions raises a question of law: whether the new maximum default period applies to offences committed before the coming into force of the increase.  Miss Fairbairn tells us that there is no indication one way or another in the Act about that question.  However, it is fair to say that, in view of her recent instruction, it may be that there has not been time for the point to be fully researched.

19.  We think, in those circumstances, that the appropriate course is to adjourn the application insofar as it relates to the default period – but only on that point – so that the matter can be properly researched and argued with the assistance also of the prosecution.  It may be that the point will be academic because there is a property there which no doubt can be sold, but it is not possible to foresee all the circumstances in which the question of a default period may become relevant.  That is therefore the course which we propose to take.

20.  The order, therefore, will be that the application for an extension of time in which to apply for leave to appeal against conviction is refused.  The application for leave to appeal against the confiscation order is refused in all respects, save in relation to the appropriate default period.

LORD JUSTICE GROSS:  So that point is adjourned to the full court.

MISS FAIRBAIRN:  Yes, thank you.

LORD JUSTICE GROSS:  The order should indicate, please, that the Crown should attend and it should provide for the exchange of short skeleton arguments: yours to be first, within 21 days; and the Crown's to follow three weeks thereafter.  Would you be so kind, Miss Fairbairn, to liaise with the associate to make sure that the order is properly set out?

MISS FAIRBAIRN:   Absolutely.  May I mention one point?  There is currently listed on 12th May, before the Birmingham Magistrates' Court, enforcement proceedings –

LORD JUSTICE GROSS:  We are not staying anything.

MISS FAIRBAIRN:  So be it.  Thank you.

LORD JUSTICE GROSS:  Miss Fairbairn, there will be comprehensive written skeleton arguments between you and the Crown.  I would have said the next hearing should be listed for an hour, an hour and a half?

MISS FAIRBAIRN:  I would not disagree.

LORD JUSTICE GROSS:  It is difficult to know –

MISS FAIRBAIRN:  It is.

LORD JUSTICE GROSS:  - because you may have hit on an interesting point. There again, the point may be utterly hopeless.

MISS FAIRBAIRN:  It may be, but I suppose at least upon exchange of skeleton arguments –

LORD JUSTICE GROSS:  It should be clear.

MISS FAIRBAIRN:  - we may have a clearer idea.

LORD JUSTICE GROSS:  Yes.

MISS FAIRBAIRN:  And clearly we can liaise.

LORD JUSTICE GROSS:  Let us put it down for an hour to an hour and a half.  Would you liaise with the court once you have exchanged skeleton arguments as to the estimated length?

MISS FAIRBAIRN:  My Lord, I will.

LORD JUSTICE GROSS:  Thank you.

MISS FAIRBAIRN:   My Lord, given that there is a hearing on 12th May, this issue will not have been decided by then –

LORD JUSTICE GROSS:  No.

MR JUSTICE MALES:  The result of our decision today is that enforcement will go ahead.  All that remains outstanding is the default period.

MISS FAIRBAIRN:  So be it.

LORD JUSTICE GROSS:  Yes, we had thought about that.  Thank you very much for your assistance.

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