Posted: 11 / 05 / 2022
I was intrigued by the judgment of the Court of Appeal in the recent confiscation case of Nadia Saroya Saroya v R  EWCA Crim 602 (03 May 2022). As always with judgments one does not get the full history of what did (or did not) happen at the Crown Court stage and there is a risk that readers, such as myself, may assume points were not argued there (or relevant evidence was not presented) when in fact the arguments were pursued (and the evidence was presented) but the defendant may have been unsuccessful for reasons not elaborated upon in the appeal court judgment.
The criminal offence
Ms Saroya had been convicted of housing benefit fraud under s111A(1)(b) of the Social Security Administration Act 1992. Paraphrasing slightly, the charge was that she on 16 April 2012 at Croydon, London dishonestly produced or furnished a document or information to a local authority, namely the London Borough of Croydon which was false in a material particular, namely a document purporting to be a rental agreement, with a view to obtaining a benefit, payment or advantage, namely housing benefit.
In a nutshell, Ms Saroya claimed she was renting a property (which she and her husband in fact owned) and produced a false tenancy agreement showing that she was renting her home for £850 per month, in support of her claim for housing benefit. Somewhat bizarrely Ms Saroya was herself an employee of Croydon Borough Council.
Ms Saroya claimed and was paid housing benefit of £47,640.23 from 27 December 2011 to 5 February 2017.
She was sentenced to 18 weeks imprisonment, suspended for 2 years.
Confiscation proceedings in the Crown Court followed. Ms Saroya’s counsel in those confiscation proceedings (who was not her counsel at the appeal) conceded that Ms Saroya had a ‘criminal lifestyle’ for confiscation purposes.
As the judgment records, “On this basis, the judge was obliged to make the four assumptions against the appellant, set out in section 10 of the Proceeds of Crime Act 2002. He held that there was no evidence that it would be incorrect to apply the assumptions nor that there would be a serious risk of injustice if the assumptions were made. The ‘relevant day’ for assumptions under section 10(2) (the first assumption) and section 10(4) (the third assumption) was 25 February 2013.
The particular benefit was £51,862.57, being the £47,640.23 of dishonestly obtained housing benefit adjusted for changes in the value of money. The sum of £352,317.25 was added to that figure as a result of the section 10 assumptions being applied and included monies transferred into the applicant’s bank accounts, the increase in the value of her property at 60 Mount Park Avenue [her home] and the deposit paid for the purchase of a property at 48 Lancelot Crescent in February 2017.
The total benefit figure was £404,179.82. The judge held that he was not satisfied that the available amount was less than the benefit figure and directed that £41,440.23 of the confiscation order sum would be payable as compensation to the London Borough of Croydon”.
This is a stark illustration of the impact of the ‘criminal lifestyle’ assumptions in confiscation. Ms Saroya had falsely obtained housing benefit of £47,640.23 and had no other convictions, but was required to pay a confiscation order of £404,179.82.
We cannot know from the appeal court judgment whether the various elements of assumed benefit were challenged unsuccessfully in the Crown Court or not challenged there at all.
Interestingly the appeal court judgment notes, “The original grounds of appeal (relating to inclusion of the value of a property unconnected with the offending and disproportionality) were before the single judge and were drafted by trial counsel. The single judge refused leave and those grounds are not now pursued”.
What was pursued in the Court of Appeal was the issue of whether the criminal offence occurred on the single day referred to in the charge (on which the defendant had “produced or furnished” the false tenancy agreement) or was an offence which had continued over a period of years.
The point being that, in order for the defendant to have a ‘criminal lifestyle’ from this offence, it had to be “an offence committed over a period of at least six months” – s75(2)(c) Proceeds of Crime Act 2002.
The Court of Appeal’s view was that, “Where an offence is capable of being a continuing offence then the court will look at how it was presented by the prosecution, and how the defence and the court treated it to determine whether it was, in the instant case, an offence which was committed over a period of at least 6 months”.
The Court noted that the offence was committed “with a view to obtaining benefit” and considered that the statutory offence under s111A(1)(b) was capable of being a continuing offence. Further it considered that in Ms Saroya’s case she had made a continuing false representation that the document was true and that her case had been presented on the basis that her offending continued over several years.
Ms Saroya’s appeal was therefore dismissed and the confiscation order stands.
One is bound to say that the prosecution could have made life easier for themselves by charging the defendant with a number of false representations, under s111A(1)(a) of the Social Security Administration Act 1992 or s2 Fraud Act 2006, in connection with the annual renewal of the housing benefit claim.
But, standing back, it does not seem unreasonable that the Court of Appeal concluded that this defendant’s criminal conduct persisted over a period and was not limited to a single act on a single day.
Clearly it is important to present at the Crown Court stage all the relevant evidence which can assist the defendant to rebut the statutory assumptions. A forensic accountant, such as myself, may provide valuable assistance in that connection.
More generally, the topic of ‘criminal lifestyle’ in confiscation is dealt with extensively in articles and webinars on this website and in my book ‘A Practical Guide to Confiscation and Restraint’ published by Law Brief Publishing.
Our contact details are here.
(Note: This article applies to confiscation proceedings under the provisions of Part 2 of the Proceeds of Crime Act 2002 in England and Wales. There are a number of additional issues which could be relevant to a defendant’s confiscation proceedings in particular cases which it is not possible to deal with in a relatively short article such as this. Appropriate professional advice should be sought in each individual case.)