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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Munir, R. v [2008] EWCA Crim 1892 (18 July 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1892.html Cite as: [2008] EWCA Crim 1892

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		18th July 2008

1. HIS HONOUR JUDGE RADFORD: On 21st December 2006 in the Crown Court at Manchester, before His Honour Judge Gee QC, the applicant was convicted of one count of cheating the Revenue and of five counts of converting property to retain the proceeds of criminal conduct or to avoid prosecution. He was sentenced to a total of 7 years' imprisonment. Later, following an enquiry also before Judge Gee, a confiscation order was made, under section 71 of the Criminal Justice Act 1988, in the sum of £5,600,483, with orders made for payment and imprisonment in default for not so doing.
2. The applicant now renews before us his application for leave to appeal against the amount of the confiscation order made against him or, put shortly, the issue this application concerns is whether the amount of the order was £1.94 million is in excess of what it should have been, it being argued, on the applicant's behalf, in writing and now before us, by Mr Lawson Rogers QC, that this sum represented the total of cash withdrawals made from the bank account used as a vehicle of the tax fraud perpetrated by the applicant which, contrary to the judge's ruling in the confiscation enquiry, is not now invested in hidden assets but as the evidence at trial advanced by the prosecution, it is said made very clear, was laundered through named and identified companies and through those vehicles into properties which have been identified as realisable assets, available for confiscation in the remainder of the amounts which led to the total order made by the judge.
3. The short point that is taken is that in reaching the conclusions that he did, the learned judge, in assessing the amount of the realisable assets, fell into error in not having given weight or proper weight to the evidence at the trial, which was, as far as the Crown were concerned, that the sum of £1,914,000, withdrawn in cash, principally in October 2001, from Talkland, the vehicle for the fraud, was, as they submitted to the jury, the Crown, and as the judge reminded the jury in summing-up, then passed to certain identified companies and thereafter through to traced investments.
4. The learned judge, it is submitted, fell into error in failing to take into account that evidence from the trial and by concentrating wholly on the absence of evidence from the applicant in the confiscation enquiry, and the fact that the applicant's forensic accountant, Mr Fairhurst, had based his conclusion on instructions from the applicant, instructions which had not been supported by evidence of the applicant himself before the learned judge.
5. We have considered the submissions that have been made to us and have been taken to passages in the final speech to the jury by learned leading counsel for the Crown and the learned judge's summing-up to the jury, recounting the evidence and the arguments that were presented on both sides.
6. The learned single judge, in refusing leave to appeal, it is also submitted fell into error by not appreciating that the issue that the grounds of appeal raised was not as to the amount found as benefit, about which there is no dispute, but as to whether, as we have stated, the amount of £1,514,000 represents hidden assets for the purposes of the confiscation order or, as the applicant maintains, were monies that were not hidden but clearly traceable on the Crown's own case at trial. It seems to us, having seen the observations of the learned single judge, that that certainly may have been the way in which he approached dealing with the application for leave.
7. Having heard, as we have, the submissions of Mr Lawson- Rogers and having been taken through the documentation, we have come to the conclusion that there are arguable grounds to present for further more detailed examination as to whether the learned judge failed to give weight or due weight to the evidence at trial when he came to consider this particular issue.
8. As the respondent's helpful skeleton makes clear, there are some issues that may arise as to particular sums that were found to have been invested in the companies concerned, which also should, we think, form the subject matter of more detailed consideration.
9. In short, we do conclude that there are arguable grounds, for the reasons advanced, for allowing leave to appeal against this confiscation order, so that the issue can be further investigated on another occasion and by another constitution of the Full Court.
10. LORD JUSTICE GAGE: What directions can we usefully give? I do not know how much detail you are going to go into in respect of the sums that can be traced through back to the companies.
11. MISS HATFIELD: I am afraid it seems to me that the full court is likely to have to look at a great deal of evidence from the original trial. I think much will be reduced to schedules -- my learned friend was present at trial and I, of course, was not. But it seems to me it is going to take certainly at least a day of the court's time. I would have thought a full day.
12. MR LAWSON-ROGERS: There are a number of schedules in tables in Mr Fairhurst's report, to which I have not taken you and which I think summarise the position so far as the traceable payments are concerned, and I am not sure my learned friend's pessimistic view is the right one. I would have thought, by reference to those, we can almost certainly agree which were the relevant movements as shown by the documentation, and the court would then simply be able to look at a relevant table or chart to see what was agreed between us. So I would have thought the best thing we can do is try to agree the form of which the evidence can go before the court and hopefully it can be agreed, I think it probably can.
13. LORD JUSTICE GAGE: Do you think it can be agreed?
14. MISS HATFIELD: I would be surprised if it could not.
15. LORD JUSTICE GAGE: Can we direct that an agreed schedule in relation to payments passing to and from various accounts, so far as relevant to this particular sum of money, is placed before the court. Any other documents that you want to refer to must be put into an agreed bundle. We better have skeleton arguments 14 days before the hearing of the appeal, 21 days, and the respondents 14 days before the hearing. If we were to say a hearing of 3 hours, would that...?
16. MR LAWSON-ROGERS: I am sure that would be adequate. If it turns out, when we have attempted to agree, there is a problem, we would obviously inform the court. I am sure 3 hours at the moment should be sufficient.
17. MISS HATFIELD: I am content with that.
18. LORD JUSTICE GAGE: If you think that there may be matters which need to be subject of a further directions hearing, will you let the court know and then it can be arranged.
19. The Registrar has asked about a representation order. You have not asked for one.
20. MR LAWSON-ROGERS: I am being instructed privately.
21. LORD JUSTICE GAGE: Thank you.