2016/02184/B2 & 2016/02307/B2

Neutral Citation Number: [2018] EWCA Crim 1500
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday  9th  May  2018

B e f o r e:
LORD  JUSTICE  TREACY

MR  JUSTICE  EDIS

and

HER  HONOUR  JUDGE  MUNRO  QC
 (Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A
 
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RONNIE  MELIUS

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Non-Counsel Application 

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J U D G M E N T
Wednesday  9th May  2018

LORD JUSTICE TREACY:  I shall ask Mr Justice Edis to give the judgment of the court.

MR JUSTICE EDIS:
1.  The applicant, Ronnie Meliuis, seeks leave to appeal out of time against a confiscation order which was made by consent.  The interested party, Elaine Byfield, seeks an extension of time in which to seek leave to appeal against the same confiscation order.  Her right of appeal is conferred by section 31(5)(b), (6) and (7) of the Proceeds of Crime Act 2002.  She claims an interest in the matrimonial home, which was the only realisable asset identified in the confiscation proceedings and which will have to be sold if the order is to be paid.  She was an interested party in the Crown Court, having been joined into the confiscation proceedings pursuant to section 10A of the 2002 Act.

2.  The applicant was sentenced to 24 years' imprisonment on 7th December 2012, having been convicted of a series of serious offences of importation of a variety of different controlled drugs, including Class A controlled drugs.  

3.  On 13th January 2016, in proceedings under section 6 of the Proceeds of Crime Act 2002 he was made subject to a confiscation order by agreement in the sum of £95,467, payable within three months, with two years' imprisonment in default of payment.

4.  The written grounds of appeal, which the applicant has placed before the court, contend that there was no postponement of the confiscation determination during the permitted period and that the determination itself was made after the expiration of two years following the conviction.  He further contends that his counsel knew that the confiscation order was out of time, but still allowed the hearing to go ahead and the order to be made.  He had complained to the Bar Standards Board about counsel.  He also made other complaints about his legal representation.       Essentially, he alleged that he was lied to by his counsel.  All of that is designed to explain how it came to be that he consented to the order which, he says, should now be set aside.

5.  In short, leaving the question of consent to one side, the substance of the applicant's proposed appeal is that the order was procedurally defective.  He contends that he ought to be allowed to appeal, notwithstanding his consent, because of his complaints about his legal representation. 

6.  The Crown have served documents which contest the procedural grounds on which the application is brought.  They say that there were valid postponements, pursuant to section 14 of the Proceeds of Crime Act 2002, within time and that the second of those postponements lasted until 16th May 2016 – some months after the confiscation order was made.  In any event, say the Crown, in view of section 14(11), as it now appears in the 2002 Act and the decision of the House of Lords in R v Soneji [2005] UKHL 49, none of the procedural points relied upon by the applicant could conceivably result in the quashing of the confiscation order.  R. v Guraj (Lodvik) [2016] UKSC 65 renders the position clear under the modern law.

Discussion and Decision
7.  It sufficiently deals with the matter, in our judgment, to record three things:

(1)  The single judge gave lengthy and detailed reasons which explain in clear language why this application is totally without merit.  It is unnecessary to set them out here because the applicant and his wife have both seen them.  His wife secured the adjournment of this application when it was first listed because she had only recently received the Court of Appeal Summary, but in the event did not appear before us.

(2)  The applicant and his wife both consented to the making of the order.  The law in relation to the relevance of consent to an appeal against a confiscation order is firmly established in the decision of this court in R v Hirani [2008] EWCA Crim 1463 and other authorities recently analysed and explained in R v Morfitt [2017] EWCA Crim 669.  In this case there was no mistake of law by the court which went to its jurisdiction and the whole proceedings were not arguably rendered unfair by any misapprehension under which the applicant may have laboured when he consented.  He signed a note which confirmed his consent and confirmed also that he had been advised that a finding of hidden assets was likely if the proceedings were contested.  The prosecution was willing to limit the order to a 50 per cent share in the matrimonial home and the bargain, therefore, relieved the applicant of the likelihood of having to serve a substantial default term if he did not, in fact, have any assets with which to meet a much larger order.

(3)  The tortured thought process of the applicant is well illustrated by his seeking to rely on the judge's apparent reluctance to make the confiscation order he was invited to make by all parties.  He suggests that this means that the judge knew that no confiscation order should have been made.  That suggestion is not true.  The transcript shows that the judge was reluctant to make a confiscation order on the basis which had been agreed because he thought it was far too generous to the applicant and he was concerned that such generosity might invalidate or undermine the basis on which he had passed sentence.

8.  In our judgment, this application is totally without merit for the reasons given by the single judge and, accordingly, we refuse both applications for extensions of time and, even if we had permitted the application to be argued despite the passage of time, it would have been refused on the merits.

9.  This is the second occasion when the applicant has advanced before this court entirely hopeless grounds of appeal arising out of this case.  On 2nd March 2017, in a decision with the neutral citation number [2017] EWCA Crim 225, this court refused his renewed application for leave to appeal against his conviction and made a loss of time order of 60 days.  We consider that a loss of time order is appropriate in this case also, but we consider that the period of time which the applicant should serve as a result of that loss of time order should take into account the principle of totality.  Justice will be done if we order that 30 days of the time spent pending the hearing of this application should not count against his sentence.  That 30 day period shall run consecutively to the 60 day period imposed by this court in March 2017, making a total loss of time in all of 90 days.