Neutral Citation Number: [2011] EWCA Crim 572
No: 200905756 B1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 4TH February 2011

B e f o r e:

LORD JUSTICE AIKENS 

MR JUSTICE IRWIN 
 
THE COMMON SERJEANT HIS HONOUR JUDGE BRIAN BARKER QC (SITTING AS A JUDGE OF THE CACD) 
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R E G I N A 

v 

JOHN EVWIERHOWA
 
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MR G FISHWICK appeared on behalf of the Applicant 

MR T GODFREY appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE AIKENS:  This is an appeal with the leave of the full court from a ruling by Her Honour Judge Faber made on 20 September 2009 in the course of confiscation proceedings.  Those proceedings resulted in an order on 2 October 2009 that the appellant be made the subject of a confiscation order in the sum of £6220, which was to be paid within four months, or in default of payment he was to be ordered to serve four months' imprisonment.  The order was made under the provisions of the Criminal Justice Act 1988, which we will call "the 1988 Act".  
2.	The question on this appeal is whether the judge was right to rule, as she did on 28 September 2009, that the 1988 Act was the correct legislation under which to consider whether any confiscation order should be made, as opposed to The Proceeds of Crime Act 2002, which we will call "the 2002 Act".
Background 
3.	In order to explain how this issue came about it is necessary to set out the background to the confiscation proceedings.  The appellant was the principal of Callerfield Legal Advisory Services Limited, which was a company which was registered and authorised to provide immigration advice and services.  The appellant was himself a registered immigration adviser.  He used this position to countersign applications for British passports to be submitted to the Identity and Passport Service.  The Crown's case was that stolen identities were used on which to base the applications for passports.  In all it was said that the appellant had countersigned 39 such applications.  The relevant applications and counter‑signatures were said to have been made between 29 October 2003 and 10 March 2006.  The appellant was remunerated £25 in respect of each application.  
4.	The Crown alleged that the appellant had countersigned each of these applications knowing that the identity of the applicant was false.  
The Indictment 
5.	In due course the Indictment was preferred.  It contained 10 counts that were relevant to the appellant.  However, for the purposes of the appeal only counts 1 and 10 need be set out.  Count 1 said under "statement of case": 
"CONSPIRACY TO MAKE FALSE INSTRUMENTS, contrary to section 1(1) of the Criminal Law Act 1977."
6.	The "particulars of offence" were as follows:
"JOHN EVWIERHOMA, KERYANA SHAW and GRACE O'CONNOR between the 1st day of January 2003 and the 16th day of May 2007 conspired together and with persons unknown to make false instruments, namely passport applications, with the intention that they or another should use the said passport applications to induce the Identity and Passport Service to accept them as genuine and, by reason of so accepting them, to do some act to its own or any other person's prejudice." 
7.	The statement of case in count 10 was:
"CONSPIRACY TO MAKE FALSE INSTRUMENTS, contrary to section 1(1) of the Criminal Law Act 1977."
8.	The particulars of offence in that count were: 
"JOHN EVWIERHOMA and GRACE O'CONNOR on or before the 15th day of May 2007 conspired together and with persons unknown to make false instruments, namely utility bills, banking documents and other personal documents with the intention that they or another should use the same to induce persons unknown to accept them as genuine and by reason of so accepting them to do or not to do some act to their own or any other person's prejudice."
9.	It is important to note that in count 1 the conspiracy to which it was alleged the appellant was a party was said to have run from 1 January 2003 until 16 May 2007.  
10.	Counts 3 to 6 of the indictment made allegations that the appellant had made an untrue statement for the purposes of obtaining a passport.  Each of those counts referred particular instances of the appellant countersigning passport applications.  The dates of the offences stated in the particulars of offence on those counts range from 29 October 2003 to 6 September 2005.  
11.	Count 7 charged the appellant with assisting unlawful immigration into a member state of the EU by countersigning a fraudulent application for a UK passport for a person, knowing or having reasonable cause to believe that the person was not an EU citizen.  That offence was said to have taken place between 1 January and 31 September 2005.
Guilty plea and basis of plea 
12.	On 20 April 2008 the appellant pleaded guilty to counts 1 and 10 on the indictment.  He did so on a written basis of plea.  That was, we understand, not accepted by the Crown.  On the other hand, the Crown did not contest it or demand that there be a Newton hearing.  The introductory paragraph and paragraph 1 of that document states:
"the defendant; John Evwierhoma (JE), pleads guilty to Counts 1 and 10 of the indictment on the following basis.
1. That the remaining counts (2‑7; 9 and 14) be left on the file." 
Paragraphs 2 and 3 of the document state as follows: 
"Count 1  
2. JE accepts that he agreed with Shaw aka Williams (KS) to assist others in the fraudulent procurement of passports. He denies so doing wit O'Connor.  The Crown is not proceeding against her on this count in the light of her plea to count 10.
3.  In furtherance of the agreement, JE countersigned the following eighteen fraudulent passport applications."
13.	The list of the 18 fraudulent passport applications is then set out in the written basis of plea, giving names and dates when the fraudulent passport applications were countersigned by the appellant.  The first of those dates is 29 October 2003.  The latest in time is 10 March 2006.  The other dates are at various times in 2004 and 2005.  
14.	That written basis of plea was amended on 29 May 2008, but none of the amendments are relevant for the present purposes.  On that date, before Her Honour Judge Faber at the Inner London Crown Court, the appellant pleaded guilty to counts 1 and 10 on that amended written basis of plea.  On 24 July 2008 the appellant was sentenced by Judge Faber to 33 months' imprisonment on count 1 and to 6 months' imprisonment on count 10.  The judge ordered that time spent in custody on remand should count against sentence.  
The Confiscation Proceedings 
15.	On the same day, the prosecution applied for the confiscation proceedings to be commenced.  They applied at the time under the 2002 Act.  However, on 24 July 2008 the prosecution changed its approach and sought to proceed under the 1988 Act, as amended.  No issue was taken by the defence at that stage to the change of tack by the prosecution.  The judge made orders for a timetable of the procedure to lead to a hearing.
16.	The defence then challenged the Crown's case that the confiscation proceedings should be pursued under the 1988 Act.  It appears to be common ground that if the confiscation proceedings have to take place under the 2002 Act then the figure for the "benefit" that the appellant had obtained from his criminal conduct, for the purposes of sections 6 and 7 of the 2002 Act, would be no more than the remuneration that the appellant actually gained from countersigning the applications.  It is agreed that this was £450.  However, it was the Crown's case that if the calculation of "benefit" was to be determined under the 1988 Act, then pursuant to section 72(AA) of that Act, the court should and could calculate the "benefit" on the basis of the assumption set out in section 72(AA)(4).  On that basis, the "benefit" obtained on the Crown's case would be many thousands of pounds.
17.	Although both of the statutes provide for circumstances in which the calculation of the "benefit" of a defendant can be based upon the fact that the defendant had a "criminal lifestyle", there is one vital difference between the two Acts.  The effect of S.75(1)(2) and (4) (set out below) is that the defendant cannot have a criminal lifestyle under the 2002 Act unless he obtains "relevant benefit" of not less than £5000.  It is agreed in the present case, that because the appellant obtained only £450 of "relevant benefit", the "criminal lifestyle" provisions and assumptions under the 2002 Act could not apply.  Having heard the explanation given to us by Mr Fishwick on behalf of the appellant, we are satisfied that that is the crucial difference.
18.	On 28 September 2009 Her Honour Judge Faber heard argument on whether the 1988 Act or the 2002 Act should apply.  She concluded that the 1988 Act applied.  The judge stated that because the appellant had pleaded guilty to the offence of conspiracy in count 1 and as the particulars of offence under that count stated that the conspiracy ran from 1 January 2003, therefore the appellant had, by his plea, accepted and acknowledged that that offence ran from that date.  Accordingly, given the statutory provisions concerning the commencement of the 2002 Act, viz. that it applied to offences after 24 March 2003 only, the 1988 Act must apply.  
19.	The substantive confiscation hearing took place on 1 and 2 October 2009.  The judge heard evidence on the issue of "benefit" received, and "realisable sum".  In the end the parties agreed the appellant's benefit figure for his relevant criminal conduct as being £278,537.20, and the parties also agreed that for the purposes of the confiscation order the "realisable sum" was £6220.  The judge gave a judgment stating she was satisfied that those were proper figures and she made a confiscation order accordingly. 
The Confiscation Legislation 
20.	The 2002 Act was intended to replace the confiscation provisions in both the 1988 Act and the Drug Trafficking Act 1994, but the earlier Acts apply to confiscation proceedings concerned with criminal conduct that occurred before the 2002 Act came into force.  The question of whether the 1988 Act or the 2002 Act applies will depend upon three things: first, the statutory provisions of the 2002 Act; secondly the statutory provisions (including those set out in the secondary legislation) concerning the commencement of the 2002 Act and any transitional provisions and, thirdly, on an analysis of the chronology of the relevant offences in the light of those statutory provisions.
21.	The argument of Mr Fishwick on the behalf of the appellant is that the dates of the commission of the relevant offences will determine which Act applies.  Mr Fishwick accepts that count 1 refers to the conspiracy running from 1 January 2003.  However, he relies upon the written basis of plea that was submitted by the appellant, which makes it plain that the appellant accepted that the first act he did in pursuance of the conspiracy was his signature on a passport application dated 29 October 2003.  
22.	Mr Fishwick submits that the date of the start of the conspiracy as set out on the indictment should not have been used to determine which confiscation regime applied because that was an arbitrary date which was only chosen to encompass all possible criminality, and it had little relevance to the evidence.  He submits that the more appropriate date for the purposes of deciding when the offence took place was that of October 2003.  
23.	The relevant statutory commencement and transitional provisions relating to the 2002 Act are set out in the Proceeds of Crime (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003: IS 2003/333.  That provides at paragraph 2:2:
"Commencement of Provisions 
(1)  The provisions of the Act listed in column 1 of the schedule to this order shall come into force on 24 March 2003 subject to the transitional provisions and savings contained in this order.
(2)  But where a particular purpose is specified in relation to any provision in column 2 of that schedule, the provision concerned shall come into force only for that purpose.  
Paragraph 1(3) of the same Statutory Instrument provides:
"Where an offence is found to have been committed over a period of two or more days, or at sometime during a period of two or more days, it shall be taken for the purposes of this order to have been committed on the earliest of those days."
24.	Sections 6, 7 and 75 of the Proceeds of Crime Act 2002 provide as follows: 
6.  Making of order 
(1)The Crown Court must proceed under this section if the following two conditions are satisfied. 
(2)The first condition is that a defendant falls within any of the following paragraphs — 
(a)he is convicted of an offence or offences in proceedings before the Crown Court; 
(b)he is committed to the Crown Court for sentence in respect of an offence or offences under section 3, 4 or 6 of the Sentencing Act; 
(c)he is committed to the Crown Court in respect of an offence or offences under section 70 below (committal with a view to a confiscation order being considered). 
(3)The second condition is that— 
(a)the prosecutor or the Director asks the court to proceed under this section, or 
(b)the court believes it is appropriate for it to do so. 
(4)The court must proceed as follows— 
(a)it must decide whether the defendant has a criminal lifestyle; 
(b)if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct; 
(c)if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct. 
(5)If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must— 
(a)decide the recoverable amount, and 
(b)make an order (a confiscation order) requiring him to pay that amount. 
(6)But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct.
(7)The court must decide any question arising under subsection (4) or (5) on a balance of probabilities. 
(8)The first condition is not satisfied if the defendant absconds (but section 27 may apply). 
(9)References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).
7.  Recoverable amount 
(1)The recoverable amount for the purposes of section 6 is an amount equal to the defendant’s benefit from the conduct concerned. 
(2)But if the defendant shows that the available amount is less than that benefit the recoverable amount is— 
(a)the available amount, or 
(b)a nominal amount, if the available amount is nil. 
(3)But if section 6(6) applies the recoverable amount is such amount as— 
(a)the court believes is just, but 
(b)does not exceed the amount found under subsection (1) or (2) (as the case may be). 
(4)In calculating the defendant’s benefit from the conduct concerned for the purposes of subsection (1), any property in respect of which— 
(a)a recovery order is in force under section 266, or 
(b)a forfeiture order is in force under section 298(2), 
Must be ignored.
(5)If the court decides the available amount, it must include in the confiscation order a statement of its findings as to the matters relevant for deciding that amount.
75.  Criminal lifestyle 
(1)A defendant has a criminal lifestyle if (and only if) the following condition is satisfied. 
(2)The condition is that the offence (or any of the offences) concerned satisfies any of these tests— 
(a)it is specified in Schedule 2;
 (b)it constitutes conduct forming part of a course of criminal activity; 
(c)it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence. 
(3)Conduct forms part of a course of criminal activity if the defendant has benefited from the conduct and— 
(a)in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or 
(b)in the period of six years ending with the day when those proceedings were started (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited. 
(4)But an offence does not satisfy the test in subsection (2)(b) or (c) unless the defendant obtains relevant benefit of not less than £5000. 
(5)Relevant benefit for the purposes of subsection (2)(b) is— 
(a)benefit from conduct which constitutes the offence; 
(b)benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the defendant has been convicted; 
(c)benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for an offence mentioned in paragraph (a) or (b). 
(6)Relevant benefit for the purposes of subsection (2)(c) is— 
(a)benefit from conduct which constitutes the offence; 
(b)benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for the offence mentioned in paragraph (a). 
(7)The Secretary of State may by order amend Schedule 2.
(8)The Secretary of State may by order vary the amount for the time being specified in subsection (4).
25.	Under the scheme of the 2002 Act, the court has to make a confiscation order under section 2 of the Proceeds of Crime Act if the conditions set out in sections 6(2) and (3) are satisfied.  Section 6(2)(a) refers to the defendant being convicted of "an offence or offences" in proceedings before the Crown Court."  If the conditions in section 6(2) and (3) are satisfied, the court then has to decide whether a defendant had a criminal lifestyle: see section 6(4)(a).  If it does so, the court must decide whether the defendant has benefited from his "general criminal conduct"; or, if he does not have a criminal lifestyle, then the court must then decide whether the defendant has benefited from his "particular criminal conduct": section 6(4) paragraphs (b) and (c).  It then proceeds to decide the recoverable amount: see section 6(5).  
26.	Section 75 sets out the conditions for deciding whether a defendant has a criminal lifestyle.  In this case, it was accepted that section 75(2)(a) did not apply, because none of the offences to which the appellant pleaded guilty appear in Schedule two of that Act.  Therefore only sections 75(2) paragraphs (b) and (c) could apply.  However, sub‑section 2 of section 75 refers to "the offence (or any of the offences) concerned..." 
27.	It is therefore apparent that both section 6 and section 75 refer to "offence" and "offences".  It is common ground that the 2002 Act can only apply to offences that took place on or after 24 March 2003 in accordance with the provisions of paragraph 2 of the Commencement Statutory Instrument which we have already set out.  Therefore, given the provision of paragraph 1(3) of that Statutory Instrument, the question must be whether, for the purposes of the 2002 Act, the appellant has been convicted of "an offence" which began before 24 March 2002.
28.	We are quite sure that he has been, and so the 2002 Act does not apply in this case.  Count 1 of the indictment charges the appellant with being party to a conspiracy from 1 August 2002.  As Mr Godfrey for the Crown pointed out in his written argument for this appeal, in the case of a conspiracy, the crime is in the making of the agreement to carry out a course of unlawful conduct, coupled with the necessary intent to carry that into effect, but the moment that there is an agreement with that intent, the crime is complete.  As Archbold (2010) paragraph 33‑5 puts it: "the very plot is the criminal act itself" and nothing need be done in pursuance of the agreement.  Therefore subsequent repentance, lack of opportunity and failure are all immaterial.  
29.	The appellant by his plea of guilty to count 1 has accepted that he committed the offence of being a party to the conspiracy as of 1 January 2003.  That is the relevant "offence" for the purposes of the statutory provisions in the 2002 Act and the commencement provisions of the Statutory Instrument.  The basis of plea did not suggest a different date for the start of the conspiracy, or stipulate that there should be an amended count on the indictment that had been preferred and signed.  The appellant's basis of plea admits guilt of the offence on the indictment as stated, even if the first admitted act in pursuance of the criminal agreement took place only on 29 October 2003.  That act is only conduct evidencing guilt of being party to a criminal conspiracy which had its genesis on an earlier date.
30.	The Crown points to the fact that there was some evidence that the appellant had countersigned a false passport on 23 January 2003, although that does not form part of the written basis of plea.  That evidence would only reinforce the point that the Crown's case to which the appellant did plead guilty was one of a criminal agreement that had commenced on or about 1 January 2003 and that acts were carried out pursuant to that criminal agreement thereafter.  
31.	Having reached this conclusion, it must follow that the "offence" set out in count 1, to which the appellant has pleaded guilty, was one which was committed over a period of two or more days and so, for the purposes of the commencement order, it is to be taken as having been committed on the earliest of those days viz. 1 January 2003.  Therefore the relevant "offence" in this case, that in count 1, was committed before the relevant commencement date of the 2002 Act.  Accordingly, the 1988 Act must apply for the purposes of determining benefit and realisable sum in making a confiscation order.  
32.	The conclusion of Her Honour Judge Faber was correct.  This appeal is dismissed.  
33.	Thank you both very much.
34.	MR FISHWICK:  The confiscation order has been satisfied in the full sum already.
35.	LORD JUSTICE AIKENS:  Thank you very much indeed for letting us know.  I will state that in the course of the judgment.