Fiona Jackson appears in R v Gurpreet Singh Padda

The Court of Appeal this morning handed down judgment in R v Gurpreet Singh Padda [2013] EWCA Crim 2330, where the Court had been asked to consider an appeal against a revised confiscation order made against the Appellant under s.22 of POCA 2002.  Fiona Jackson appeared for the Respondent, the Crown Prosecution Service.

The decision serves as a reminder to defendants upon whom a confiscation order has been imposed and the available amount found to be less than their benefit from their criminal offending, that the Court may revisit that confiscation order and increase it at any stage even to remove from them assets acquired legitimately after their criminal offending.

Section 22 permits the Crown Court to consider an application from the prosecution where a confiscation order has been made and the Court originally found that the available amount was less than the recoverable amount.  In the Appellant's case, his original benefit from his drug trafficking was found to be £156,226.74 with the available amount found to be £9,520; he served his prison sentence and satisfied that confiscation order in time.  In the s.22 application some 6½ years later, the Court acceded to the prosecution’s application to vary and increase the confiscation order to include legitimately after-acquired assets.

The CA considered the implications of s.22 post-Waya and whether such an application would be disproportionate so as to infringe a defendant’s A1P1 rights under the ECHR.  Dismissing the appeal, the Court found that s.22(4)(a) of POCA 2002 preserves an obligation on a court and a discretion to make an order which is just, taking into account all relevant circumstances which may include the amount outstanding, the additional amount which might now be available, the length of time since the original confiscation order and the impact on a defendant of any further payment but also taking into account the legislative policy in favour of maximising the recovery of the proceeds of crime, even from legitimately acquired assets.   

The Court held that:

“That discretion must of course be exercised in a way intended to “give effect to Parliament’s intention as expressed in the language of the statute.  The statutory language must be given a fair and purposive construction in order to give effect to its legislative policy”: see Waya paragraph 8.  It is perfectly clear that the policy underlying POCA and its predecessors places a high priority on the recovery of the proceeds of crime.  It is central to the scheme of the legislation that, at the time when a principal confiscation order is made:

“Even if the proceeds have been spent, a confiscation order up to the value of the proceeds will follow against legitimately acquired assets to the extent that they are available for realisation.”

See Waya paragraph 27.

In our view, the matter is clearly stated, albeit in relation to the 1994 Act in paragraph 29 of Peacock:

“As for the main argument, based on fairness and rehabilitation, naturally I recognise that Parliament could have chosen a different policy with regard to after-acquired assets.  But it seems to me perfectly understandable that in fact Parliament decided (as indisputably it did when later enacting POCA) to leave it open to the courts as a matter of discretion [emphasis added] to mulct a defendant of his criminal gains on an ongoing basis irrespective of precisely how and when he came by any increased wealth.”

In our judgment, the obligation of a court under section 22(4)(a), bearing well in mind the policy underlining POCA, is in the exercise of its discretion to make a “just” order.  It is in the very highest degree unlikely that any order which is “just” will be found to be disproportionate, so as to infringe A1 P1 of the European Convention of Human Rights.”

The judgment can be found here.

Penny Small and Fiona Jackson Deliver Lectures in New York on Mutual Legal Assistance

On Thursday 3rd October in New York, Penny Small and Fiona Jackson spoke as part of the faculty in a programme entitled "Working Together: Litigating in England and Wales" organised jointly by the New York County Lawyers' Association and the Bar Council.  This one-day course covered international civil litigation and arbitration, cross-border investigations and enforcement actions to enable American lawyers to understand the litigation process in England and Wales and how best to utilise the skills of barristers, including through direct access.

Penny's lecture focused on "Obtaining overseas evidence and recovering assets in criminal cases", outlining in particular the various statutory schemes and giving tips to encourage best practice, whilst Fiona's presentation on "UK enforcement actions; cooperation & comparisons" highlighted effective examples of US/UK mutual legal assistance to enable recovery of significant assets for the USA and victims, as well as covering issues currently litigating in UK courts in this important area of law.

Click to read more of Penny and Fiona's work.  To instruct Penny and Fiona, or if you would like them to deliver similar lectures to you and your colleagues, please contact our Practice Director Martin Adams:

Fiona Jackson Champions 'Bar Nursery Scheme' to Prevent 'Brain Drain'

The Bar Council plans to roll out childcare services to barristers in London before the end of the year in a bid to halt the brain drain among young lawyers with parenting responsibilities.

Bar Nursery Committee chair Fiona Jackson wrote to barristers on Friday (5 October) to update them on the Bar Council’s talks with Smithfield House Children’s Nursery, close to the Old Bailey, and to poll them on their childcare needs.

Through Smithfield House, the Bar Council is hoping to offer its members full-time, part-time and emergency day childcare packages for children aged eight weeks to five years between 7am and 7pm. A full day of nursery care looks set to cost around £68, while a half day will cost £42.

Jackson said that she hoped to be able to provide barristers with a childcare package before the end of the year and, in her email, said that the council was also looking to roll out childcare services for its members nationwide. Jackson added that she had also been contacted by law firms who were interested in buying into the childcare package. Firms would purchase a permanent slot at the nursery to be used in childcare emergencies.

Barristers will pay for their own childcare services, but Jackson added in her email: “In time we may also be able to work with the Bar Council, Inns of Court and others to offer subsidised places for those with greater financial need.” However, Jackson also noted when speaking with The Lawyer that the self-employed nature of barristers meant many were resistant to the idea of subsidising others’ childcare.

The issue of childcare for barristers was first taken up in 2008 by the Bar Nursery Association, which was created by female barristers at 39 Essex Street (1 February 2008), but was dropped after it failed to find any Inns of Court that could double as a suitable site for a nursery.

Baroness Deech, chair of the Bar Standards Board, told Counsel magazine in 2011: “I’m really very annoyed that there’s still no bar nursery. I can’t believe the Inns cannot find the space. I think we could raise the money if we could find accommodation.”

Jackson, a fraud specialist at 33 Chancery Lane who used to chair the Association of Women Barristers, said that she became an advocate for the issue after growing concerned at the number of men and women leaving the bar because they could no longer juggle the job with being a parent.

“It’s a way to help with one aspect of [barristers’] lives and make sure they can continue on their way to becoming the judges and QCs of the future,”

A bar exit survey in 2011, which was prepared for the council by Electoral Reform Research, found that 15 per cent overall and 28 per cent of women said that having children had a negative effect on their careers.

“Indications from the in-depth interviews suggest that being self-employed at the bar is difficult to combine with having children without full-time, expensive childcare arrangements,” stated the report.

Other members of the Bar Nursery Committee are former St Philips Chambers chief executive Chris Owen, 7 Bedford Row’s Derek Sweeting QC, Amanda Jane-Field, and St John’s Building’s Clodagh Maguire.