Hockey v R v, Court of Appeal - Criminal Division, June 14, 2017, [2017] EWCA Crim 742

Resolution Date:June 14, 2017
Issuing Organization:Criminal Division
Actores:Hockey v R v
 
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Case No: 200700022 C5

Neutral Citation Number: [2017] EWCA Crim 742

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT BRISTOL

His Honour Judge Lambert

S2006/0204

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 14 June 2017

Before :

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION

(SIR BRIAN LEVESON)

MR JUSTICE HADDON-CAVE

and

HIS HONOUR JUDGE INMAN Q.C.

sitting as a Judge of the Court of Appeal (Criminal Division)

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Between :

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Application considered on the papers

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JudgmentSir Brian Leveson P :

  1. On 17 November 2006, in the Crown Court at Bristol, His Honour Judge Lambert sentenced Terence John Hockey to concurrent terms of 9 months' imprisonment for six offences to which he had previously pleaded guilty in the Magistrates Court. For those which arose after the implementation of the Criminal Justice Act 2003, he also ordered that he undertake 240 hours' unpaid work.

  2. The underlying offences arose out of three mortgage applications which were each based on false representations as to income. As a result, very substantial sums were loaned, secured on the properties. However, moving from sentence to confiscation proceedings which were conducted pursuant to s. 6 of the Proceeds of Crime Act 2002 (``the 2002 Act''), Judge Lambert declined to make an order, not least because the mortgagors were prepared to rely on the security which the properties provided and collect the interest payments. On the basis that to proceed would do nothing for the victims of the crime, he adjourned the application on the basis that he reserved the matter to himself and would not restore it.

  3. By s. 31(2) of the 2002 Act, the prosecutor is entitled to appeal to the Court of Appeal (Criminal Division) against a decision in confiscation proceedings and such an appeal was mounted. On 12 June 2007, it came before the court (Pill LJ, Dobbs and Lloyd Jones JJ); the question which arose was as to the justification for refusing to make the order, having regard to the terms of the legislation. Moreover, it was common ground between the parties that the sum of £298,457 constituted the benefit which he had obtained within the meaning of the 2002 Act and that he had realisable assets substantially in excess of that sum. Having dismissed the reasons advanced by the judge for adjourning the application (and, in effect, refusing to make a confiscation order), the court did so in the sum of £298,457 and imposed a term of three years' imprisonment imposed in default of payment within 6 months: see [2007] EWCA Crim 1577, [2008] 1 Cr App R (S) 50. By selling his home, Mr Hockey paid the compensation. The properties were later repossessed and sold when the mortgage repayments were not made.

  4. Nearly ten years have since elapsed and an application has now been made to re-open the decision of the Court of Appeal under the implicit jurisdiction identified in R v Yasain [2015] EWCA Crim 1277, [2016] QB 146. The application has been referred to the full court by the Registrar for determination on the papers.

  5. In support of the application, Philip Bown (who did not appear in the original proceedings) argues that a proper consideration of s. 76(4), 84(1)(b) and 79(2)-(3) of the 2002 Act identifies that the true benefit obtained by Mr Hockey was not the mortgage monies but the properties such that the benefit would have been the difference between the purchase price and the then current market value of the properties after deduction of the mortgage. He asserts that this was not new law as is clear from R v Pattinson [2007] EWCA Crim 1536, [2008] 1 Cr App R (S) 51: in fact, as he recognises, that case was decided on 13 June 2007, that is to say, the day after the appeal. In any event, he goes on to say that this method of calculation has been approved in R v Waya [2012] UKSC 51 (see [114].

  6. Mr Bown suggests that the only route for appeal would be provided by s. 33 of the 2002 Act to the Supreme Court which, he says, was ``clearly, not available in this case''. It in those circumstances that he considers that Yasain ``provides the answer'', citing the implicit jurisdiction to re-open an appeal where there has been a defect in the procedure leading to real injustice.

    The Jurisdiction to re-open...

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