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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 >> Hindley, R. v [2011] EWCA Crim 2100 (28 July 2011) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/2100.html Cite as: [2011] EWCA Crim 2100

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		28 July 2011

1. LORD JUSTICE RIX: This is the appeal of Mr Michael Hindley, who, on 2 July 2008 in the Crown Court at Aylesbury, before His Honour Judge the Lord Parmoor, pleaded guilty to possessing a controlled drug of class C, namely cannabis, with intent to supply. He was sentenced to 21 months' imprisonment with a direction that 57 days spent on remand should count towards sentence. Later, on 18 December 2008 before the same judge, a confiscation order under the Proceeds of Crime Act 2002 was imposed for £209,995.06, or, in default, 32 months' imprisonment.
2. Leave to appeal and an extension of time were granted by the Full Court on 10 March 2011, [2011] EWCA Crim 680, but Richards LJ, who gave the judgment of this court on that occasion, left it to the court hearing the appeal to decide whether we would admit the further evidence upon which the appellant relies in order to show, albeit belatedly, that the monies in an account at ING bank in the sum of the confiscation order made were not in fact part of the benefits of general criminal conduct, but were the product of an inheritance from his mother, redirected through the appellant's father, following upon a deed of variation made on 25 March 2002.
3. This had always been the appellant's case, but he failed to advance it with the underlying material at the time of the confiscation proceedings in question. He received two adjournments to assist him for this purpose, but on the third occasion he did not attend court and counsel instructed to appear on his behalf on that occasion, although asking for a further adjournment, failed to obtain one from the judge.
4. The details of the appellant's difficulties in assembling the necessary evidence and bank statements, including evidence concerning his mother's will and probate and the deed of variation, are all contained in the documents and evidence before us and have satisfied us, as indeed they have satisfied the Crown, who do not dispute this appeal any longer, that the position has been as the appellant has always stated it was. That evidence explains the passing of time and the difficulties that the appellant has been under in obtaining the evidence in question. Those difficulties were undoubtedly partly of his own making. If the evidence as to where the money in question came from were in any way dubious, it may well be that this further evidence could not successfully be put before us under the terms of section 23 of the Criminal Appeal Act 1968.
5. As it is, the evidence, which comprises a full statement from the appellant, also a statement from his father and all the documents in question, including probate of the mother's will, her will and all the banking documents concerned, clearly evidence the fact that, with the exception of the first £500 deposited in the account in question by the appellant pursuant to his own cheque of 5 June 2004 which operated to open the account, all the rest of the monies in the account derive from payments by his father pursuant to the deed of variation by which the mother's bequest to the appellant and to his brother were redirected to the father and through the father to his sons.
6. Thus, over a period between November 2005 and February 2007 the father made various payments, all of which can be identified both in the father's accounts and in the appellant's ING bank account, totalling £188,000. That, together with the original £500 deposited by the appellant himself in the relevant account, have been left entirely undisturbed to build up with accumulating interest over the years to the figure of £209,995.06 which was the sum in which the judge made his confiscation order.
7. The judge found that the benefit from general criminal conduct was to be assessed at the larger sum of £232,588.32, found that the available amount was £209,995.06, namely the amount held in the ING account, and on that basis made his confiscation order in that amount.
8. In the light of the new evidence presented to the court, it is plain that, with the exception of the original deposit of £500 and interest accumulating on that small sum, all the rest of the money in the ING account was not the appellant's benefit from general criminal conduct, and that the appellant has met the burden of reversing the assumptions which otherwise had to be made against him pursuant to POCA.
9. The result is that we quash the confiscation order made by the judge and substitute in its place a new confiscation order in the amount of £23,153.26.
10. That sum is arrived at, first of all, by deducting the full amount in the ING account from the benefit figure found by the judge to get back to the figure of £22,593.26. That is the figure in which the prosecution, who have been excused from attending today, would be content for a substitute confiscation order to be made.
11. We, however, have discussed the matter of the initial £500 cheque paid into the ING account by the appellant and interest thereon with Mr Brodie, who appears on behalf of the appellant today, and he accepts that it is appropriate to acknowledge that that £500 and a calculated sum of £60 on it over the years, a total of £560, is money in respect of which the POCA assumptions have still not been met, because, of course, the mother's inheritance monies do not cover that sum.
12. Therefore, the ultimate substituted sum of our new confiscation order, which is the benefit figure as well as the available asset figure, totals £23,153.26 and that is the sum in which we make the order today. We give by agreement 28 days for payment of that sum. We state that in default of payment a sentence of 12 months is imposed.
13. MR BRODIE: My Lord, may I raise two matters. First, that this was a privately funded appeal. May there be a defendant's coast order?
14. LORD JUSTICE RIX: Yes.
15. MR BRODIE: Obliged. Secondly, in the course of the previous appeal your Lordship mentioned that you were not sure quite how many paid in satisfaction confiscation orders were dealt with. There is in fact a statutory provision in section 55 of POCA which sets out how a justices' chief executive is to apply which has been deposited in satisfaction of a confiscation order. It goes to insolvency practitioners and then receivers and then in payment of the confiscation order. I thought it might be of assistance.
16. LORD JUSTICE RIX: Thank you very much indeed. But nothing has been paid?
17. MR BRODIE: No, there is a restraint order in this case. It remains on the ING account. There will be agreement between prosecution and defence for the payment of the confiscation order in this case and the release of the remainder to the appellant.
18. LORD JUSTICE RIX: Yes. I suppose still more interest has accumulated, although these days, being these days, not very much.