Court of Appeal allows fresh psychiatric evidence but rejects appeal over £283k confiscation order

The Criminal Division of the Court of Appeal has allowed the admission of fresh evidence from forensic consultant psychiatrists but subsequently dismissed an appeal over a £283,000 confiscation order obtained by a local authority.

The appeal in Ihenacho v London Borough of Croydon [2021] EWCA Crim 798 raised the issues of:

• whether that fresh evidence should be admitted; and if so,
• whether the fresh evidence showed that the appellant was not fit to plead when the confiscation order was made pursuant to the provisions of the Proceeds of Crime Act 2002 in the Crown Court at Croydon on 5 September 2014.

The appellant was deemed to have benefitted in the sum of £590,316.08. Her realisable assets were found to be £283,214.90 and a confiscation order was made in that amount of which £108,441.48 was to be paid as compensation.

The confiscation order was made in proceedings following the appellant's convictions for dishonestly making a false statement in claims for income support, council tax benefit and housing benefit, and for dishonestly furnishing a false document, namely a false tenancy agreement, in support of the claims.

On 16 November 2012 the appellant was sentenced on each count to 12 months' imprisonment, concurrent and served her sentence at HMP Bronzefield.

Lord Justice Dingemans, who heard the appeal with Mr Justice Holgate and His Honour Judge Dickinson QC (Recorder of Nottingham), said the appellant now suffered from a persistent delusional disorder that an impostor had stolen her identity and it was the impostor that committed the criminal acts in her name. A persistent delusional disorder is a mental disorder within the meaning of the Mental Health Act 1983, the judge noted.

It was submitted on behalf of the appellant that the expert psychiatric evidence should be admitted pursuant to section 23(1) of the Criminal Appeals Act 1968. It was submitted that this showed that the appellant was unfit to plead at the time of the confiscation hearing in September 2014, after her mental state had started to deteriorate following her imprisonment in November 2012.

In those circumstances it was submitted that the confiscation order which was made should be set aside on the basis that it was wrong to continue confiscation proceedings in such circumstances and it was also wrong to apply the section 10 POCA 2002 assumptions.

It was also submitted on behalf of the appellant that in those circumstances, the confiscation proceedings should either be remitted to the Crown Court or the Court of Appeal should exercise its powers on appeal pursuant to section 32 of POCA and undertake the confiscation proceedings for itself without applying the assumptions set out in section 10 of POCA.

It was not submitted on behalf of the appellant that if the appellant was fit to plead at the time of the confiscation proceedings, there was any other basis for setting aside the confiscation order.

On behalf of the London Borough of Croydon, the respondent, who paid over the fraudulently claimed benefits to the appellant and who brought the prosecution against her, it was submitted that the court should not admit the fresh evidence in the form of the psychiatric reports because there was no miscarriage of justice in this case.

It was submitted on Croydon’s behalf that, if it was to be admitted, the expert evidence showed that the appellant was fit to plead at the time of the confiscation proceedings, that it was only after those proceedings had concluded that the appellant became unfit to plead, and that the appeal ought to be dismissed.

It was further submitted that even if the appellant was not fit to plead, it was appropriate both to continue with the confiscation proceedings because of the numerous previous adjournments to accommodate the appellant, and to rely on section 10 of POCA. This was because it was common ground that the appellant had been fit to plead at her trial, and that the confiscation proceedings simply followed that conviction.

The Court of Appeal decided to admit the psychiatric evidence pursuant to s.23(1) of the 1968 Act.

Lord Justice Dingemans said: “The evidence might afford a ground for allowing the appeal, see section 23(2)(b). This was because if the appellant was not fit to plead at the time of the confiscation hearing this is relevant to the fairness of the proceedings, even though it is possible in certain circumstances for a defendant to be unfit to plead during confiscation hearings and for the confiscation hearings to continue and statutory assumptions to apply.

“The psychiatric evidence would have been admissible in the confiscation proceedings to show that the appellant was not fit to plead, see section 23(2)(c). This was because it was relevant to show whether the appellant was fit to plead. There was a reasonable explanation for the failure to adduce the evidence in those proceedings, see section 23(2)(d). This was that the reports were not then available.”

Lord Justice Dingemans said it seemed to the Court of Appeal that the important points in favour of the appellant being unfit to plead in September 2014 were the facts that:

• it was common ground that the appellant did have a persistent delusional disorder in September 2014;
• there was contact with the Mental Health Services team in February 2014; and
• the appellant's solicitors raised the issue of obtaining medical evidence about the appellant towards the end of 2013.

However, the Court of Appeal considered that these points were outweighed by the matters pointing towards the fact that the appellant was fit to plead in September 2014. These were:

1. There was a period from February 2014 to March 2015 when there was no contact with the Mental Health Services.
2. The appellant was represented by solicitors who in July 2014 did not suggest that the appellant was not fit to plead, even though they had earlier raised the issue of obtaining medical evidence about the appellant.
3. The appellant had, albeit earlier in the chronology, been able to complete a statement for the confiscation proceedings and had been able to appear in the Court of Appeal to make submissions in support of her appeal in May 2013. This suggested that the appellant was able to deal with matters which related to her delusional belief in a way which suggested that she could give instructions for a period of time.
4. These were confiscation proceedings and there was nothing to suggest that as of 5 September 2014 that the appellant would not have been able to identify what assets she had, where she had obtained them from, and what were her sources of income. “It is clear that the confiscation proceedings would have taken place against the background of convictions which the appellant contended were a miscarriage of justice (originally on the basis of a false defence, which had by this time manifested to become a persistent delusional disorder, namely that someone else had carried out the relevant acts) but it is not apparent why that contention and delusion would prevent the appellant giving instructions about, and making a proper defence to, the confiscation proceedings.”

The Court of Appeal therefore found that it had not been shown on behalf of the appellant, on the balance of probabilities that the appellant was not fit to plead in September 2014 at the time of her confiscation hearing.

Lord Justice Dingemans said this meant that it was not necessary to determine issues relating to the application of assumptions under section 10 of POCA or the points about the appellant's alleged criminality in relation to obtaining mortgages by false representations that the appellant had an income when the appellant's tax returns and statement in this case was that she had no income.

The Court of Appeal was told by counsel for Croydon that, given the time that had expired since the order was made, it would be open to the respondent to make an application for an uplift in the calculation of the available amount under section 22 of POCA.

Lord Justice Dingemans said: “We do not express any view on that save to say that it is apparent that any new application will raise issues about the fair representation of the appellant given her unfitness to plead, which is likely to lead to further delay and expense.”