15 September 2010

FOURTH SECTION
Application no. 6219/08
by Didier Pierre PAULET
against the United Kingdom
lodged on 4 February 2008

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Didier Pierre Paulet, is an Ivoirian national who was born in 1973.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The criminal proceedings against the applicant
The applicant arrived in the United Kingdom on 26 January 2001 and thereafter lived illegally at an address in Bedford.
Whilst living in the United Kingdom the applicant successfully applied for three jobs on the basis of a false French passport. Between April 2003 and November 2004 the applicant was employed by a recruitment agency. Between August 2004 and January 2006 he was employed in a cash and carry business and between January 2006 and February 2007 he was employed as a forklift truck driver.
The applicant had used the false passport to support his assertion that he was entitled to work in the United Kingdom. All of his employers subsequently stated that they would not have employed the applicant had they known of his true immigration status. Between April 2003 and February 2007 the applicant earned a total gross salary of 73,293.17 pounds sterling (GBP) from his employment. At the end of this period the applicant had total savings of GBP 21,649.60.
In January 2007 the applicant applied to the Driving and Vehicle Licensing Agency for a provisional driving licence. The application was accompanied by the same false French passport that the applicant had used to obtain employment in the United Kingdom. When the falsity of the passport was discovered, the police were informed.
On 4 June 2007 the applicant pleaded guilty in the Crown Court at Luton to three counts of obtaining property by deception (counts 1, 2 and three on the indictment). He also pleaded guilty to one count of having a false identity document with intent (count four), one count of driving whilst disqualified (count five) and one count of driving without insurance (count six). On 29 June 2007 the applicant was sentenced to concurrent terms of 15 months' imprisonment for the first four counts together with a consecutive sentence of two months' imprisonment for the offence of driving whilst disqualified. No separate sentence was imposed for driving without insurance. The trial judge also recommended the applicant for deportation.
In addition to the custodial sentence and the recommendation for deportation, the prosecution sought a confiscation order under section 6 of the Proceeds of Crime Act 2002 in respect of the applicant's earnings (see relevant domestic law and practice below). The trial judge accepted that the applicant had paid all the tax and national insurance due on his earnings and that the money he had made from his employment had been truly earned. After deducting tax and national insurance payments, it was calculated that the benefit the applicant received from his earnings was GBP 50,000. It was agreed that of the GBP 50,000 the applicant still had assets of GBP 21,949.60. On this basis, on 29 June 2007, the trial judge imposed a confiscation order in the sum of GBP 21,949.60 upon the applicant, with a consecutive sentence of 12 months' imprisonment to be served in default of payment. Thus the confiscation order had the effect of depriving the applicant of all of the savings that he had accumulated during the four years of employment.
The applicant appealed against the imposition of a confiscation order to the Court of Appeal. He argued that his earnings were not a relevant benefit from criminal conduct within the meaning of the Proceeds of Crime Act 2002. He further argued that the prosecutor's decision to seek a confiscation order in his case constituted an abuse of process.
The Court of Appeal initially adjourned the appeal to allow the Director of Public Prosecutions to promulgate guidance on the circumstances in which seeking a confiscation order would constitute an abuse of process. On 28 July 2009, after that guidance had been promulgated (see relevant domestic law and practice below), the Court of Appeal held that the decision to seek a confiscation order against the applicant did not constitute an abuse of process. The court therefore dismissed the applicant's appeal against the order. In reaching this conclusion, the Court of Appeal said that the guidance represented a fair analysis of the effect of previous Court of Appeal and House of Lords decisions on the confiscation order regime. The court stated:
“Abuses of the confiscation process may occur and, when they do, the appropriate remedy will normally be a stay of proceedings. However an abuse of process cannot be founded on the basis that the consequences of the proper application of the legislative structure may produce an 'oppressive' result with which the judge may be unhappy.”
In respect of the applicant's submission that his earnings were not a relevant benefit from criminal conduct the Court of Appeal found that applicant's case could not be distinguished from its previous ruling in R v Carter and others [2006] EWCA Crim 416 (see relevant domestic law and practice below). The Court of Appeal concluded:
“The reality is that throughout the period of his employment [the applicant] was relying on a continuing dishonest representation to three different employers. He deceived them into thinking that he was entitled to obtain employment with them. That was a crucial element of his criminality. His earnings, of course, reflected the fact that he had done the necessary work, as we shall assume, to the satisfaction of his various employers. But the opportunity for him to do so, that is the pecuniary advantage, was unlawfully obtained. If the employee worked to his employer's satisfaction, and he paid his tax and National Insurance contributions on his earnings, and his deception either lacked any significant wider public interest, or, perhaps because of the passage of time, but for whatever reason, had ceased to have any meaningful effect on his employers' decision to continue his employment, the resolution of the issue might well be different. As it is there was here a wider public interest. The appellant was deliberately circumventing the prohibition against him seeking remunerative employment in this country in any capacity. No basis for interfering with the order made in the Crown Court has been shown. In our judgment the appropriate link between the appellant's earnings and his criminal offences, in the context of the wider public interest, was plainly established. The appeal therefore fails.”
On 27 October 2009 the Court of Appeal refused to certify a point of law of general public importance which ought to be considered by the Supreme Court.
Enforcement proceedings have since been instigated against the applicant.
2. The asylum and deportation proceedings
On 28 June 2007 the applicant applied for asylum in the United Kingdom, alleging that he was at risk in Ivory Coast owing to his Dioula ethnicity and that his father had been killed in a land dispute between the Dioula and Bete community. His application was refused by the Secretary of State for the Home Department on 4 October 2007 who found that there was no objective evidence that the Dioula were targeted solely on account of their ethnicity; the delay in claiming asylum (and only then after he had been apprehended by the police) adversely affected the credibility of the rest of his claim. A deportation order made by the Secretary of State was served on the applicant on 19 November 2007. On 24 April 2008 the applicant brought judicial review proceedings challenging the refusal of asylum and the decision to make a deportation order. This application was refused by the High Court on 16 May 2008 as the application had been lodged out of time and, in any event, the applicant had failed to avail himself of his statutory appeal rights by applying to the then Asylum and Immigration Tribunal. His renewed application for judicial review was rejected by the High Court on 27 June 2008. However, it appears that, on 3 April 2008, the applicant submitted a notice of appeal to the Asylum and Immigration Tribunal: this was rejected by the Tribunal on 29 April 2008 as out of time.
B.  Relevant domestic law and practice
1. The Proceeds of Crime Act 2002
Confiscation proceedings are now governed by the Proceeds of Crime Act 2002. Section 6(4) sets out the approach to be followed by the court:
“(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.”
Section 6(5) provides that where the court decides that the defendant has benefited from the conduct referred to, it must decide the “recoverable amount” and make a confiscation order requiring him to pay that amount.
Under section 7, the “recoverable amount” is defined as an amount equal to the defendant's benefit from the conduct concerned unless the defendant shows that the available amount is less than that benefit. In that case the recoverable amount becomes the available amount.
Section 76(3)–(7) define inter alia “particular criminal conduct” (as used in section 6(4)(c) above) and “benefit” as follows:
“(3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs—
(a) conduct which constitutes the offence or offences concerned;
(b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned;
(c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.
(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.
(5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.
(6) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other.
(7) If a person benefits from conduct his benefit is the value of the property obtained.”
2. The Criminal Justice Act 1998 and R v. Carter
The above provisions of the Proceeds of Crime Act replaced similar provisions contained in section 71 of the Criminal Justice Act 1988. It gave the Crown Court (and where appropriate magistrates' courts) the power to make confiscation orders. Section 71(2) provided:
“The Crown Court may make such an order against an offender where—
(a) he is found guilty of any offence to which this Part of this Act applies; and
(b) it is satisfied—
(i) that he has benefited from that offence or from that offence taken together with some other offence of which he is convicted in the same proceedings, or which the court takes into consideration in determining his sentence, and which is not a drug trafficking offence...”
Section 71(4) and (5) provided:
“(4) For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained.
(5) Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence, he is to be treated for the purposes of this Part of this Act as if he had 	obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of the pecuniary advantage.”
In Carter 
Confiscation orders were made under section 71 of the Criminal Justice Act in respect of the wages the defendants had earned in the course of the business. The defendants argued that their wages did not constitute benefit for the purposes of the Criminal Justice Act 1988. In response the Court of Appeal stated:

Once made it continues to have effect throughout the employment which has been taken up. At any stage had the representation been corrected, it is plain the employment would have ceased.”
On the facts in Carter, that test was met. The court also stated that, whilst the confiscation order regime was “draconian”, it was satisfied that it was proportionate for the purposes of Article 1 of Protocol No. 1.
3. Guidance for Prosecutors on the Discretion to Instigate Confiscation Proceedings
The above Guidance was issued by the Crown Prosecution Service on 28 May 2009. The Guidance sets out four circumstances when it may be inappropriate for prosecutors to decide to instigate confiscation proceedings. The first was where the Crown has reneged on an earlier agreement not to proceed with confiscation. The second was where the defendant had voluntarily paid full compensation to the victim or victims, or was ready, willing and able immediately to repay all of the victims to the full amount of their losses, and had not otherwise profited from his crime. The third was where a court might be compelled to find that property obtained in the most part legitimately by the defendant, and to which the defendant would have been entitled but for his criminal conduct, must be treated as “benefit”. The example was given of a case where the defendant was in fact entitled to the property which he had instead chosen to obtain by deception.
The Guidance considered that a fourth situation would be where a defendant had obtained paid employment by a false representation to his employer. The Guidance stated:
“The defendant's wages may be his benefit (R v Carter [2006] EWCA Crim 416), but some cases will arise where the link between the criminality and the receipt of payment from dishonestly obtained employment is too remote, for example, where had the representation been corrected, the employment would have continued, or where after many years of otherwise lawful employment, a relatively minor previous conviction is discovered.”
COMPLAINT
The applicant complains that the confiscation order was a disproportionate interference with his right to peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1. He submits that the sentence of fifteen months' imprisonment was sufficient punishment and that he should not be deprived of money that he worked for.
QUESTION TO THE PARTIES

Was the confiscation order a disproportionate interference with the applicant's peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1?