Overpayment and Entitlement tribunal in near future for client who has recently been convicted under the provisions discussed here. I was determined to have the tribunal heard first but the SSWP were equally determined to have it postponed. Unfortunately, the SSWP got its way. That was in spite of the SSWP in its request for postponements at least on one occasion openly referring to the tribunal as “the lower court” and the Crown court as the higher one.
After the conviction, the SSWP in a supplementary submission asked the tribunal whether there was any longer a need for the tribunal to go ahead. A direction followed asking whether we wished to continue given the result of the criminal trial. The Department were relying not just on that old reported decision re the reversal of the burden following conviction but some old civil law case which they are maintaining is authority for the proposition that the conviction is proof of the facts upon which it is based (sorry, I don’t have the file at present).
My view is that the House’s judgment in Kerr that the burden of proof should rarely be an issue in social security law trumps any reverse burden argument. And the facts found in the criminal trial do not bind the tribunal.
Sadly, I suspect we’ll see this type of arrogance from the Department more often post Wearing.
However, I’m not as pessimistic about the implications of Wearing as others. I agree about the Human Rights point but that’s not going to help us at present.
The criminal court clearly had jurisdiction in Wearing despite the fact that the elements of the section 111A(1A) offence included questions of social security law such as “entitlement” reserved exclusively for the SSWP under section 8(1)(c) SSA 98. A relevant enactment under the latter includes an enactment under the Administration Act.
But the fact is decisions on entitlement to benefit, as opposed to contributions, are not conclusive for the criminal proceedings so the criminal court doesn’t have to adjourn to await the outcome of tribunals. It should, of course, do so on the basis that a successful tribunal would almost certainly represent a reasonable doubt. I see the criminal court as simply attempting to preserve its role, worried perhaps that if it starts delegating decisions on entitlement to tribunals, other specialist panels may demand equal treatment.
The Crown Court appears to have found Wearing’s entitlement was affected not just because she was living together but because she had excess capital from re-mortgaging. And, with respect, Wearing can be distinguished from Passmore on the basis that the court in the latter had convicted on the basis that the defendant’s entitlement “could” have been affected which was clearly inconsistent with the standard of proof, ie beyond reasonable doubt. Whereas in Wearing the court found that her benefit was affected, no ifs.
However, when it comes to confiscation, I don’t think Wearing is authority for automatic recovery under the POCA. Section 6 POCA imposes a duty to proceed but that duty is informed by subsections (4), (5) and (7) as follows:
“(4)The court must proceed as follows—
(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.
(5)If the court decides under subsection (4)…(c) that the defendant has benefited from the conduct referred to it must—
(a) decide the recoverable amount, and
(b) make an order (a confiscation order) requiring him to pay that amount.
(7)The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.”
It seems open for a defendant to argue that a successful tribunal decision occurring subsequent to the conviction for the substantive offence is new evidence for the confiscation judge to consider when deciding under section 4(c) whether the defendant has in fact benefited. Wearing’s counsel appears to have argued just that at para 26. However, unfortunately, the Court of Appeal effectively found that the Confiscation judge was within his rights to make the order, agreeing with him that “nothing prevented his making the order, nor persuaded him to exercise any discretion not to make it”. (para 28).
But just because that judge made a bad decision to recover doesn’t mean other confiscation judges will do the same in future. There’s some hope there surely. Wearing isn’t in my view laying down a general rule that confiscation will always be ordered following a successful conviction for the Administration Act offence. The latter conviction is simply a pre-condition for POCA applying (see section 6(2)(a)).
And whilst it is implicit from a conviction under section 111A(1A) that the defendant must have “benefited”, ie her entitlement would have been adversely affected had she disclosed the change of circs, the confiscating judge is not bound to find that she did in fact benefit, ie he is not estopped from disagreeing with the jury in the original trial on that issue. In other words, my understanding is that there is no issue estoppel in criminal law proceedings, except in a limited number of cases of which the present is not one. The judge is bound by the conviction as proof of the conviction but not as proof of the facts underlying that conviction.
What’s less forgivable for me than a criminal judge respecting a criminal court over a non-criminal court is a tribunal judge adjourning social security proceedings when he must know fine well that a criminal court will completely lack the specialist knowledge to deal with the issues properly. And risk the defendant acquiring a criminal record. And let’s not forget the SSWP desperately trying to by-pass the tribunal.
To the direction asking whether we wish to withdraw, my answer: Erm, no.