Tribunal after criminal conviction

sovietleader - 08 October 2010 03:07 PM

The appeals were heard on Monday, and both were allowed - our client was not a member of the same household as her husband and so not disentitled and not overpaid for that reason.

The POCA hearing appears not to have gone well.  Having adjuorned the POCA hearing for the tribunal to take place, the judge seems minded to ignore the outcome of the tribunal and order confiscation of about £66,000 (which is for the period May 1997 to November 2008, i.e. a greater period and amount than claimed under Section 71).

I think I I have seen a posting before about a similar situation, but cannot find it.

Is anyone aware of any similar cases, as regards the POCA proceedings?

Thanks

Brian

Brian, are there not grounds to get the conviction quashed?  I appreciate it depends on precisely which provision(s) you client was charged with but it seems to be an option that must be considered.

As for POCA cases, the only thing I can suggest is a trawl / search through “Bailii” - http://www.bailii.org .  Unfortunately, the handful I have seen do not make happy reading, but you might be able to drag something out of the mire.

that is b ridiculous.

i’ve read an awful lot of the POCA cases on Bailii, and they don’t make happy reading at all; there was one case however, where the revenue in fact had no evidence, and in this case i’m amazed it could go ahead in the circs.

that should clearly be appealed and one imagines her criminal lawyers are advising her appropriately on that, and quashing conviction.

when will they learn that tribunal should come first….

The offence of Money-laundering under POCA 2002 is not possible with lawful assets - Regina v Geary, The Times Law Report Friday 3 Sept 2010.

Obviously, your client may have been charged with a difference POCA offence and her existing criminal conviction may be difficult to dismiss, however, the principle of the above judgment might still help, the tribunal having now confirmed that the benefit received was lawful.

Hi Brian,

You and your client have my every sympathy. This is typical of criminal solicitors understanding and behaviour in welfare benefit fraud cases, in my experience. I think we have all seen Neil Bateman’s posts where, with his much more in-depth experience, he believes that the same is true. Hopefully, Neil’s new courses for criminal solicitors next year will be well subscribed, as I am sure that they will make a difference to committed criminal solicitors.

You may have grounds to appeal the conviction but I suspect that you will need to find a more pro-active criminal firm in welfare benefit fraud cases. In addition to your own tribunal submission explaining why the Crown Court’s decision was wrong, you might refer them to the Court of Appeal decision in R v Dursun Zorlu [2009] Crim 589, as potentially providing grounds for a criminal appeal. NB The case isn’t on Bailii and I am still trying to locate a full transcript. If you give me your e-mail address, I’ll forward it if I am successful.

Good Luck

Regards

Chris

Thanks to Tom and Chris for your posts.  My e-mail is .(JavaScript must be enabled to view this email address) and fax is 0151 666 4443 (please make sure it is clearly marked for Brian in Welfare Rights as it is a shared “multi functional device” with our Safeguarding Unit).

Apparently they increased the figure to £68,000 on the day, and the judge has ordered the client to pay this within 6 months or face up to 24 months in prison.He was, apparently, extremely annoyed about the arguments put forward about the tribunal decision and even appears to have denied that he adjourned the earlier POCA hearing specifically to enable the tribunal to take place (despite the client’s barrister referring him to his notes). He has dismissed the tribunals decision as a decision of an inferior judge in an inferior court.

Hopefully her solicitors and barrister will be in touch to let us know what action they can (and will) take

Brian

Dear Brian,

I probably didn’t make it clear in my earlier post. The caselaw on POCA decisions is awful (in an unreasonable, unrealistic and unfairly penalising sort of way). It is for this reason that I concentrated on challenging the actual conviction, as the POCA decision does rely on that. There is no time limit on referral to the Criminal Cases Review Board on a criminal conviction appeal, I am told. Any POCA judgement should be put on hold pending the outcome of any conviction appeal.

In relation to the DWP use of POCA, it is grossly unrealistic about the facts of most welfare benefit fraud cases. I was told that POCA replaced earlier legislation intended to ensure that serious career criminals e.g. drug dealers, armed robbers etc. didn’t benefit from their criminal behaviour. I don’t see what relevance this has to welfare benefit fraud cases - talk about using a sledgehammer to crack a nut. Actually, I do know why it is used - if you give a civil servant powers to do something about serious cases, he will abuse those powers in minor cases at some later stage, because they can. (An example is the Police, using anti-terrorism laws to police political demonstrations).

One thing I have been advised though, is that POCA cannot be used if there are civil proceedings underway. I would think that any benefit recovery pursuance for an overpayment does constitute civil proceedings, as they can be enforced in the County Court, as a last resort. This may provide grounds to challenge the POCA judgement itself. You may wish to speak to your client’s criminal solicitors, as they may not have considered whether this is a viable argument.

I hope that this is of help.

Reagards

Chris

Chris

Thanks for your further post and your help and advice.  It all depends really on what the criminal case solicitors can and will do.

Regards

Brian

chrislpl - 11 October 2010 09:21 AM

Hi Brian,

you might refer them to the Court of Appeal decision in R v Dursun Zorlu [2009] Crim 589, as potentially providing grounds for a criminal appeal.

Chris

there you go…

Dear Claire,

How kind. Many Thanks

Chris

Confiscation proceedings are now being used in ways that were never proposed.  Originally, confiscation was designed to tackle organised criminals who managed to hide away the fruits of their serious offences.  Now, police and other law enforcement agencies see confiscation as a way of raising money. 

I have heard of confiscation being used against a landlord for not registering his property as a HMO, a pub landlord for not having fire alarms (the order was for the amount of the pub’s gross takings for the period without the fire alarms) and a fisherman for using undersized mesh nets (the order was for the entire value of the fish caught for the period of using the nets, even though most fish which would have been caught anyway by the correct size mesh).

The law is draconian and is deliberately designed to be so - one of David Blunkett’s gifts to civil liberties.

For many offences (including benefit fraud), the practical result is that people who are homeowners will be forced to sell their family home to pay the confiscation order.  This can of course mean that innocent family members are made homeless.

Non payment eventually means that the offender is imprisoned.  However, the debt remains, interest is added and they can be imprisoned endlessly until it is paid.  Many working in the criminal justice field feel that the whole process is a serious challenge to our constitutional safeguards and civil liberties and is being abused. 

I’m told that (defence) barristers don’t get paid much for work on these cases, so one has to wonder about the quality of representation.  But of course, prosecution barristers are paid.

The prosecution do have discretion not to use confiscation proceedings and this is in the Code for Crown Prosecutors.  A very unreasonable case might be challengeable by way of judicial review, but if the grounds are made out and confiscation is requested, the court must make the order. 

If deductions are being made from benefits to pay off an OP, a confiscation order can still be made as these deductions do not count as civil proceedings - see DWP v Richards 2005] EWCA Crim 491 (3 March 2005) (stored somewhere on Rightsnet).  You also cannot subtract notional benefits like unclaimed tax credits (which you can do for sentencing - R v Parmer).

As regards this particular case, it sounds like yet another example of the criminal courts failing to understand that they don’t have jurisdiction or expertise in social security law and of the inter-relationship between social security law and benefit fraud offences.  I have to say that I have come increasingly of the view that some DWP legal staff are choosing to push cases through the criminal courts before Tribunal hearings happen because they get convictions (usually on a guilty plea) in 98% of cases compared to losing appeals on overpayments about 50% of the time.  They also appear to fail to even ask decision makers to carry out revisions when the defence point out errors.

It can be possible to commit a benefit fraud offence even when there is no overpayment - for example, by making dishonest false representations or supplying forged documents.  However, from what you say about this case I’m struggling to understand how the conviction (dishonest misrepresentation?) could stand given the Tribunal decision (I assume) that her husband was not a member of her household.  Surely the conviction should be appealed?  Has the client contacted the Criminal Cases Review Commission? /www.ccrc.gov.uk

If you contact me privately I can suggest alternative local solicitors if the client is unhappy with their defence team, but there are risks associated with this.

Thanks Neil and sorry for the belated reply.  There is a big EVR and severance exercise in this LA so we have been getting quite a few queries from staff as well as our usual stuff. I am currently waiting for the solicitors to get back to me, as I will send over copies of the case law that has been provided by everyone. The solicitor and barrister dealing with the POCA seem to be doing more than was the case at the criminal trial so I will see what our client makes of what she is told next time she sees them before I suggest possibly looking elsewhere