Neutral Citation Number: [2008] EWCA Crim 2953
Case No: 2008/03333 D3
Attorney General Ref: 2-2008
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Reference by the Attorney General and appeal from the Crown Court at Winchester 
HHJ Hooton 
T20037191
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/12/2008
Before:

LORD JUSTICE HOOPER
MR JUSTICE DAVIES 
and
DAME HEATHER STEEL DBE 
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Attorney General’s Reference No. 2 of 2008 (Andrew James Winter)

Between:

	Andrew James Winters 	Appellant	
	- and -		
	Regina	Respondent	

(Transcript of the Handed Down Judgment of
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S Munro and T Forte for the Appellant 
S Whitehouse and S Donnelly for the Respondent 

Hearing date: 18 November 2008
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Judgment

LORD JUSTICE HOOPER: 
1.	On 12 December 2007 HHJ Hooton made a finding, pursuant to the Drug Trafficking Act 1994, that Andrew Winters had benefitted from his criminal conduct in the sum of £317,000. Andrew Winters, with the leave of this Court, appeals against that finding. 
2.	The judge ruled that he had no realisable assets and made a nominal confiscation order in the sum of £1. The Attorney General, with the leave of another division of this Court, refers the finding of no realisable assets to this Court as “unduly lenient”.  
3.	According to the final reference, the total of the benefit should in fact be £312,560.93 according to the judge’s findings, rather than £317,000. 
4.	Both the reference and the appeal concern two properties, 2 Stavordale Road, Carlshalton, Surrey and 64 Westmead, Sutton, Surrey. Andrew Winters, the appellant (as we shall call him), is the sole legal owner of 2 Stavordale Road and with his ex-wife shares equally the legal ownership of 64 Westmead. It is the appellant’s case that the whole beneficial interest in 2 Stavordale Road belongs to his 87 year old father, William Winters, who has lived there for over 50 years. For most of that time he lived there with his wife, the appellant’s mother, who died in 2005 (we assume that the appellant’s father obtained his wife’s half share on her death).  The appellant was brought up in the house.  It is also the appellant’s case that the whole beneficial interest in 64 Westmead belongs to his ex-wife, who had been divorced from him over 20 years. The judge agreed with the appellant, although his reasoning for so doing was very limited. He said only that he accepted “what [the appellant] said in evidence about the transfer to him from his parents and the reality of the situation insofar as the property originally owned between him and his wife.”  
5.	The issue on the reference is whether the judge was wrong to decide that no part of the beneficial interest in the two houses was held by the appellant. The issue on the appeal relates to the finding by the judge that certain mortgage payments made in respect of 2 Stavordale Road were met out of the appellant’s proceeds of drug trafficking and thus formed part of his benefit from that drug trafficking. 
6.	The appellant was convicted of two serious conspiracies to contravene section 170 of the Customs and Excise Management Act and received a total sentence of 15 years’ imprisonment. It is not necessary to set out the facts of the convictions other than to say that they involved plans to import substantial quantities of cocaine into the UK from Colombia. Covert tapes of various telephone conversations formed part of the evidence. No cocaine was actually imported into the UK although a planned import of 1.72 kilos was intercepted and seized in Ecuador. The judge found that neither of the houses formed part of the benefit of any drug trafficking. 
7.	Ms Whitehouse, who appears for the Attorney General on the reference, and instructed by the Crown Prosecution Service on the appeal, has drawn to our attention and to the attention of counsel for the appellant an error in the calculation of the benefit in so far as the mortgage payments on 64 Westmead Road are concerned. The error was made by the Financial Investigator and was unnoticed by all concerned in the Crown Court confiscation proceedings. The investigator wrongly calculated the payments on the mortgage as being £70,496.20 during the period between 1 January 2000 and 22 June 2006. In fact they were just over £8000. Ms Whitehouse also rightly concedes that there was no evidence that the appellant had made or funded the mortgage payments on 64 Westmead during the relevant period. Thus the appeal must succeed at least to reduce the benefit by £70,496.20. We express our concern that these errors went unnoticed by those concerned in the Crown Court proceedings and would not have been revealed but for the Attorney General’s reference. We express our thanks to Ms Whitehouse for spotting the error.
8.	The appeal now concerns only the payments on the mortgage on 2 Stavordale Road in the same period. The sum of the payments on the mortgage identified by the judge as having been met out of the proceeds of drug trafficking in respect of this property for a period between 2000 and 2004 was £18,193.52 (a sum which included insurance premiums). This finding was unreasoned and inconsistent (at least in the absence of any explanation) with the finding that the appellant had no beneficial interest in 2 Stavordale Road and was inconsistent with the written evidence of the appellant and his father and the oral evidence of the appellant. 
9.	It is common ground that the necessary payments were actually made by the appellant’s father in cash on a monthly basis. It is common ground that if the appellant funded them then the assumptions applied and the judge was entitled to find that they were met out of the proceeds of drug trafficking. 
10.	The amount on the mortgage was some £42,000 and monthly payments varied throughout most of the period from about £260 to about £330, dropping after December 2002 to an average figure of about £180. 
11.	It is the prosecution’s contention that the appellant funded those payments by, in part, transferring funds into his father’s account.  Having heard argument on both the appeal and the reference, we granted a short adjournment to enable more information to be provided to us about those transfers. We were then told that cash payments were made into the father’s account during the period 19 October 2000 to 2 July 2002 in a total sum of £1,704, the sums ranging from £40 to £450.  During that period the appellant was in prison in Switzerland on drugs related charges and could not have deposited the cash himself. In the period 16 September 2002 to 18 June 2003 five cash payments were received into the account, totalling £1,215. Three of those payments could not have been made by the appellant who was in Colombia at the time of the payments. It does not appear that the judge had this detailed information, at least in this form, during the confiscation proceedings. There were no other payments into the father’s account which could be directly attributed to the appellant.  On the 18 June 2003 £110 in cash was paid into the father’s account and no more cash was paid in during the next two years. The appellant was arrested in August 2003. The account was always in credit sometimes to as much as £5,000.
12.	The total of cash payments into the account was £2,919, a figure far short of the total of £18,193.52.  
13.	The appellant’s father made a statement saying that he had paid the mortgage payments in cash and that his son had never given him the money to pay the mortgage. The father’s evidence was read given his age and state of health. He wrote that he could not remember who had made the cash payments into his account but that he could say definitely that his son had not paid any cash into the account. The appellant’s written statement was to a similar effect. 
14.	The appellant agreed in evidence that his mother had not worked outside the house and he said that he did not know whether or not she had any savings. Counsel for the prosecution did not put to the appellant in cross-examination during the confiscation proceedings that he had funded the mortgage payments. Counsel did suggest that the appellant’s father was living off a meagre income in 2003. The appellant replied:
“What, he was living off the income that you’ve seen, along with my mum, along with her pension, along with whatever she was getting for her disability, whatever that was, whenever that came about. My dad was getting a carer’s allowance as well. He was getting help from the council regarding various things about the property and disability.”
15.	That answer was not challenged nor were any further details asked of the appellant. 
16.	The evidence of “meagre income” to which counsel was referring came from the last tax return apparently made by the appellant’s father for the tax year 1998/1999. That showed a state pension of £3,961 and another pension of £2,082.  Both pensions are paid into his Abbey National account, a copy of which the prosecution had for the period October 2000 to June 2005. 
17.	It was then put to the appellant that his father was not in a position to pay £5,000 which was a deposit on another house in Apers Avenue (to which we return below). The appellant said that he was. He said that the money came out of his father’s savings account and that the covert tapes supported that (see pages 38-39 of the transcript, which are in the wrong order in the bundle). 
18.	His father also said that he had paid it out of a savings account with Abbey National (of which we have not seen any record). The judge seems to have accepted this because he subsequently ruled that the £5,000 was not a benefit. In other words he ruled that it had not come from the appellant (if it had come from the appellant, the assumptions would have applied). If it had not come from the appellant, it must, so it seems on the evidence, have come from the father. It follows that the judge cannot have rejected the father’s statement in this respect (although the judge in fact expressed no view at all on the weight to be given to the father’s statement.
19.	The burden of proving benefit is on the prosecution and the standard is the civil one: see section 2(8) of the Drug Trafficking Act 1994. (We were told in argument that the criminal standard applied and we were referred to Dickens [1990] 2 QB 102.  However the law was changed in the 1994 Act).  However, as explained in Dickens, the burden (then to the criminal standard) is “considerably lightened” by the assumptions that a judge is required to make.  Section 4(2) provides that:
“Subject to sub-sections (4) and (5) below, the Crown Court, for the purpose-
(a)	of determining whether the defendant has benefitted from drug trafficking, and
(b)	if he has, of assessing the value of his proceeds of drug trafficking,
make the required assumptions.” 
20.	By virtue of sub-section (3):
“The required assumptions are:
(a)	that any property appearing to the court-
(i)	to have been held by the defendant at any time since his conviction, or
(ii)	to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him,
was received by him … as a payment … in connection with drug trafficking carried on by him ; 
(b)	that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him; 
(c)	…
21.	Ms Whitehouse drew our attention to Dickens in which it was said that the phrase “appearing to the court” meant “prima facie evidence”.   In Dickens at page 107, the court said:
“The words “appearing to the court” [in the similarly worded section 2 of the Drug Trafficking Offences Act 1986] in our judgment mean that if there is prima facie evidence that any property has been held by the defendant since his conviction or was transferred to him since the beginning of the relevant period, the judge may make the assumption that it was a payment or reward in connection with his drug trafficking.
Likewise with expenditure, once there is prima facie evidence of expenditure by the defendant since the beginning of the relevant period, the judge can assume that it was met out of payments received by him from drug trafficking.”
22.	We  have difficulty with this second paragraph, which was, in any event, an obiter dictum. Sub-section (3) (b) makes no reference to “appearing to the court” and, in our view, the legislature has drawn a distinction between “property” and “expenditure”. In the case of expenditure the prosecution must prove, now to the civil standard, that he expenditure was incurred by the defendant.  
23.	In our view on the evidence the prosecution has not discharged the burden on it. The evidence given did not establish that the appellant paid these sums in discharge of the mortgage. Our conclusion on this aspect of the case is further supported by the conclusion which we reach later in this judgment, namely that the parents retained the beneficial interest in the house upon the transfer of the legal title to the appellant. 
24.	The appeal against sentence is successful to the extent that the benefit is reduced by a further £18,193.52.      
25.	We now turn to the reference. 
26.	We start with 64 Westmead. The appellant married his wife Carmen in 1973.  In 1980 they purchased the house for £22,000 in joint names with a deposit of £2000.  It was valued at the time of the confiscation hearing at £290,000. There is an outstanding interest only mortgage in the sum of about £31,000. The appellant moved out of the house in 1984 and never returned, leaving his wife and then 4 year old daughter who both continue to live there. Carmen, so it appears, suffers from a psychiatric illness.
27.	Apart from a few payments on the mortgage in 1982-1983, the appellant has not paid towards the mortgage. In 1992, as part of the divorce settlement, the appellant was ordered to pay Carmen £87,500 to enable her to purchase a house for herself and her child and to pay interest on any unpaid balance. The appellant has, on the evidence before us, not paid that sum or any part of it.  He was also ordered to pay £5,000 per annum to Carmen for their joint lives until remarriage (she has not remarried) or the payment of the £87,500. He has not done that. Nor, according to his statement, has he paid to Carmen £3,000 a year for the benefit of their daughter (a payment due to be made until she was 17 or ceased full time education). Carmen has registered a charge against 2 Stavordale Road. Both the appellant and Carmen say that the appellant has agreed – it is not said when- to surrender his interest in the house to meet the debts owed to his wife. However he has not done that. The appellant in evidence said that he had tried to, but the existence of the outstanding mortgage prevented him from assigning his half to her.  
28.	We have no doubt that the judge should have found, whatever the state of the contractual indebtedness of the appellant under the 1982 order, that the appellant owns both a legal and beneficial half share in 64 Westmead. A planned intention to surrender is not the same as an actual surrender.  
29.	However it may well be that Carmen would have the right now to seek a property adjustment order from the family court, a right preserved for her in clause 6 of the settlement order, and, in any event, has the right to seek to establish her beneficial interest in the whole property if a receiver is minded to realise the value of the house (see In Re Norris [2001] UKHL 34; [2001] 1 WLR 1388) Given the position in which Carmen now finds herself, we would hope that the prosecuting authority will do all that it can to ensure that any interests of hers are protected (see Customs and Excise Commissioners v. A and another [2002] EWCA Civ 1039; [2003] FAM 55). 
30.	We turn to 2 Stavordale Road, reminding ourselves that the burden of proof is on the appellant to show to the civil standard that the amount that might be realised at the time the confiscation order is made is less than the assessed benefit (see section 5 of the Act).  
31.	Given that he is the sole legal owner of the house and given the initial presumption that he is therefore the sole beneficial owner, he must be able to show on the balance of probabilities that he has no beneficial interest in the house. If he fails to do so the value of the house forms part of his realisable assets. 
32.	Historically courts have applied a further presumption. In the words of Halsbury’s Laws of England, volume 16 (re-issue), para. 853:
“A resulting trust may arise solely by operation of law, as where, upon a purchase of land, one person provides the purchase money and the conveyance is taken in the name of another; there is then a presumption of a resulting trust in favour of the person providing the money, unless from the relation between the two, or from other circumstances, it appears that a gift was intended.”
33.	However, equity may presume a gift where the property is transferred to a child.
34.	In Stack v. Dowden [2007] UKHL 17; [2007] 2 AC 432 there is discussion, albeit in the context of cohabiting unmarried couples, of resulting and constructive trusts.  Baroness Hale described the modern approach in these words: 
60. ... The search is to ascertain the parties' shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it.
35.	Baroness Hale went on to say that: “the search is still for the result which reflects what the parties must, in the light of their conduct, be taken to have intended” (para. 61). Lord Neuberger said in a speech in which he disagreed with the reasons of the majority:
“114. ... Where there is evidence of the parties' respective contributions to the purchase price (and no other relevant evidence) and one of the parties has contributed X%, the fact that the purchase is in the sole name of the other does not prevent the former owning X% of the beneficial interest on a resulting trust basis. Indeed, it is because of the resulting trust presumption that such ownership arises. It seems to me that consistency suggests that the party who contributed X% of the purchase price should be entitled to X% (no more and no less) of the beneficial interest in the same way if he is a co-purchaser. The resulting trust presumption arises because it is assumed that neither party intended a gift of any part of his own contribution to the other party.”
36.	On the facts of this case it does not seem to us to matter whether or not the appellant can pray in aid a resulting trust presumption. Counsel agreed during the course of the hearing of the appeal that the issue which we have to resolve may be stated in the following way: “Has the appellant shown on the balance of probabilities that his parents did not intend to make a gift of the beneficial interest when transferring the legal interest?”  
37.	By the time of the confiscation hearing the value of the house was £245,000. 
38.	The appellant’s father and mother moved into the house in 1958. It was then a council house. In 1980 they bought the house under the right to buy legislation for £10,000, doing so with a mortgage from the Abbey National. There are no records available to us about that mortgage. The evidence was that in 1987 the appellant was in debt owing some £17,000 to HM Customs and Excise in respect of VAT and legal fees and having incurred substantial legal fees to solicitors assisting him with custody proceedings concerning his daughter. He asked his parents to mortgage their house so as to enable him to pay off his debts. His parents could not do that because they were near retirement and so, at the suggestion of the Woolwich Building Society according to the appellant’s father, the legal ownership of the house was transferred by the parents to the appellant in 1987. 
39.	The document transferring the title (page 11 of the bundle) states that “in consideration of £55,000 the receipt whereof is acknowledged,” William Frederick Winters and Dorothy Amelia Winters of 2 Stavordale Road, Mitcham, the transferor, as “beneficial owners hereby transfer” the land to Andrew Winters of 52 Meopham Road, Mitcham (a house which the appellant was renting). Ms Whitehouse fairly and correctly concedes that the sum of £55,000 was not paid over (this was confirmed by the appellant in evidence).  The appellant had no funds to make such a payment. It seems likely, as the appellant said in evidence, that the stated figure of £55,000 simply reflected the value of the house. The Woolwich provided a mortgage to the appellant in the sum of £42,000. Given the absence of any documentation from the Abbey and the absence of any reference to Abbey on the title after the transfer, it can safely be assumed that any outstanding mortgage in favour of the Abbey was paid off at this time.  
40.	Notwithstanding the help from his parents, the appellant was made bankrupt in March 1988. He was discharged from bankruptcy in 1992. The trustee in bankruptcy registered a caution against 2 Stavordale Road, which we understand subsists to this day. 
41.	The appellant’s father in his first statement said of the 1987 transaction:
“It was understood that we would continue to pay the mortgage and my wife and I would continue to live in the house which would remain our property.”
42.	A little later he wrote in his statement:
“We continued paying the mortgage and we had an expectation that when the business got on its feet Andrew would repay money (sic). However the business went bust and we were never repaid.” 
43.	The money to which the father was referring must have been the mortgage payments. The parents would have “continued” to pay the mortgage because they had previously been paying the mortgage, albeit in a significantly smaller amount and to the Abbey.
44.	In his second statement the father said:
“By [1987] our son Andrew, had got into financial difficulties and needed to raise cash. We wanted to help him and we decided to re-mortgage the property. We approached the Woolwich for this purpose. However, my wife and I were considered too old to take on the re-mortgage. By then I had retired from my occupation as a toolmaker. The company suggested that if the title in the property was transferred to our son, Andrew, then they could offer the mortgage. We agree to this because we wanted to help our son but all of us regarded the transfer of ownership as a device to allow the re-mortgage. My wife and I remained the owners of the house. No payment from Andrew or ourselves was required for the re-mortgage. All of the money received from it went to Andrew to allow him to pay his debts. I believe he received about £20,000 for this purpose.”
45.	He then goes on to repeat what he had said earlier about paying off the mortgage and receiving no help from his son. 
46.	The appellant said in his witness statement (written in prison) that he had received “approximately £20,000 to the best of my recollection and used it to pay VAT and legal fees”.   
47.	The sum received was in fact £42,000, as the appellant accepted in evidence, out of which, we can assume, any outstanding Abbey mortgage must have been paid. 
48.	In evidence the appellant said that the transaction was never done as a purchase of the property from his parents. “The idea was that it was always their property. It was just literally, the money was what I was after for the obvious reason.” It was, he said, “absolutely clear” that the intention was that the house remained his parents’ house, before, during and after the re-mortgage.
49.	Cross-examination on this issue was very brief, if not far too brief (see page 37 of the transcript).  
50.	Mr Munro relies heavily on the judge’s acceptance of the appellant’s evidence about the transfer of the property to him. That evidence related to his intention and that of his parents that they were not making a gift to him of the house. That, in our view, was a finding open to the judge. Indeed, it would have been surprising if the parents had intended to give the appellant the house, valued at some £55,000, being a house in which they had lived since 1958 and which they intended to, and did continue to, live in after the transfer. They do not appear to have had any assets to buy themselves another property. As the father said, the transfer was a device to help their son to raise money.
51.	As far as the mortgage payments are concerned Ms Whitehouse relies on the “meagre income” point, which, in our view, was answered by the appellant.
52.	Ms Whitehouse points to a number of facts which suggest that the appellant treated the property as if the beneficial interest was vested in him and not in his parents and she submits that supports her argument that the sole beneficial interest is in the appellant. To put it another way, these facts undermine his evidence about the transfer. In her skeleton argument of 5 October 2008 she wrote:
The following facts support the presumption [that with the appellant‘s legal ownership went the beneficial ownership]:
(i)	       The offender declared himself to be the owner when he borrowed £42,000 from the Woolwich Building Society in June 1987. On the basis of this assertion the building society extended loan facilities to him and took a charge over the property to secure his borrowings. If he was not the legal and beneficial owner then the loan was obtained fraudulently.
(ii)	If the offender had defaulted on his mortgage repayments the Building Society would have been entitled to seek repossession of 2 Stavordale Road to recover the funds. There would have been no question of beneficial ownership being vested in Mr. and Mrs. William Winters.
(iii)	At the end of 2002 the offender applied for a mortgage to buy a property at 6 Apers Avenue. The offender’s evidence at the confiscation hearing was that this property was for his ailing parents. The fact that the offender required a mortgage to buy this property suggests that 2 Stavordale Road was not to be sold to fund the purchase but, rather, retained for the offender’s use as the owner while his parents moved into 6 Apers Avenue. In the mortgage application form the offender confirmed that he would not be selling 2 Stavordale Road (see Document bundle p. 84). It appears that contracts were exchanged in relation to this property but the transaction was never completed.
(iv)	The offender also sought a re-mortgage of £135,000 at the end of 2002 (Document bundle p. 49). The application was granted by Halifax Bank of Scotland PLC. The offender requested that the surplus funds of £67,000 arising from the re-mortgage be paid into his own current account (Document bundle p. 65). These funds do not appear to have been paid to the offender’s father.
(v)	Extracts from intercepted telephone conversations between the offender and a co-offender, Paul Murphy, in April 2003 include references by the offender to “his” mortgage with the Woolwich. The offender spoke of re-mortgaging Stavordale Road for an additional £60,000 in order to raise funds for a deposit on another property. The inference to be drawn is that this was Apers Avenue.
(vi)	In another intercepted conversation in April 2003 the offender spoke of his mortgage being “bang up to date” and said that he had recently re-negotiated his mortgage to reduce the payments still further. The implication is that the offender viewed 2 Stavordale Road as his property to use as he thought fit.
(vii)	Cautions were registered on 2 Stavordale Road by Maria Winters and by the trustee in bankruptcy. No protest was made at the time that the property was owned by Mr. and Mrs. William Winters rather than the offender.
(viii)	William Winters and his wife made a declaration to The Land Registry that 2 Stavordale Road was transferred to the offender for consideration of £55,000. It appears that that was a lie and that there was no consideration. The house was transferred as a gift. (Document bundle p. 11). 
(ix)	The offender stayed at 2 Stavordale Road whenever he was in the United Kingdom and was at that address when he was arrested. He declared on his mortgage application forms that it had been his home for 25 years. (Document bundle pp. 38, 79).
(x)	The Judge found that the offender was making the mortgage repayments on the property between 1st January 2000 and 1st April 2004.”
53.	 As to (i), it appears that the Woolwich had suggested the scheme. In any event, the father could not argue (and has not argued), given his knowledge of the purpose of the transaction, that the Woolwich did not have a valid legal mortgage. 
54.	As to (ii), if the Woolwich had foreclosed on the house, the parents would have lost the house but, if no gift of the beneficial interest was intended, they would have been entitled as against the appellant to any money left over after the discharge of the mortgage.
55.	The facts in (iii), (iv) (v) and (vi) show that he was treating the property as his own by 2002, long after the transfer. That could undermine the appellant’s evidence as to what happened in 1987, but his father’s evidence on what happened at that time is compelling. As we have said it would be surprising indeed if the parents had intended to give him the house, valued at some £55,000, being a house in which they had lived since 1958 and which they intended to, and did continue to, live in after the transfer and in respect of which they had paid the mortgage. There was no evidence to show that the parents realised that the appellant was on occasion purporting to treat the property as his own.
56.	As to (vii), as Ms Whitehouse accepted in argument, the fact that the appellant’s parents did not object to the caution does not really help. They may not have known anything about it and, even if they did, they might well have been reluctant to take any legal steps to do anything about it.
57.	As to (viii) the reference to the £55,000 must have been incorrect.  It does not in our view help in deciding whether the parents made a gift of the entire beneficial interest in the property. 
58.	As to (ix), there were long periods when he did not reside there and he was not residing there at the time of the transfer,
59.	As to (x), we have already reached a different conclusion from that of the judge on this issue.
60.	Accordingly, we have reached the conclusion that the judge was entitled to find on the evidence that 2 Stavordale did not form part of the realisable assets of the appellant. 
61.	In conclusion, subject to what we say in the next paragraph, the benefit will now, we believe, be: £214,817.21 (£312,560.93-£70,496.20-£18,193.52) and the realisable assets will be £147,500 (1/2 of the value of 64 Westmead). We ask counsel to address us in writing as to the time for payment and the period of default (which hopefully can be agreed) and to draft the order.  
62.	We also invite counsel to consider whether the order of the court should not come into effect until such time as the appellant has entered into an irrevocable and unconditional deed, the effect of which is to confirm that his father owns the whole beneficial interest in 2 Stavordale, subject to the mortgage.