The London Borough of Barnet has secured a confiscation order worth nearly £500,000 in the Court of Appeal after a Crown Court judge had initially only ordered the defendant to pay £270.
In April this year Barnet won its appeal against the order of His Honour Judge Cole in the Crown Court at Harrow on 16 December 2019.
The background to the case was Barnet had issued a summons in 2014 against the defendant, Mr Kamyab, which alleged an offence of failure to comply with an enforcement notice.
That notice had called on the defendant to cease use of land in Llanvanor Road as nine units of residential accommodation. At some point the property had been converted from a five-bedroom single dwelling into separate flats.
The defendant maintained that the conversion took place before he purchased the property but this was not accepted by the council.
Mr Kamyab was convicted of the offence on 2 February 2015. His appeal over conviction was dismissed in August 2016. The defendant was fined £10,000.
In a statement of information Barnet initially contended that the defendant's benefit from the offence was £244,406. This was subsequently revised up to £455,414.
Counsel for Mr Kamyab contended that, following the decision of the Court of Appeal in R v Panayi  EWCA Crim 413, the defendant’s benefit was likewise limited to a single day of rent received.
HHJ Cole decided that the Panayi point should be dealt with as a preliminary issue. He held that there was no true distinction between the two cases and that he was bound by the Court of Appeal ruling in Panayi.
In London Borough of Barnet v Kamyab  EWCA Crim 543 the Court of Appeal allowed Barnet’s appeal, saying HHJ Cole was “led into error by his conclusion that he was bound by Panayi to hold that he was limited to making a confiscation order for the benefit obtained on one day. He should have continued the proceedings, made a finding as to the benefit, applying s.8 of POCA, and made a finding as to the available amount, before making a confiscation order based on a benefit figure far higher than appears in the order which he wrongly made.”
The Court of Appeal decided to hold a hearing itself of the merits of the confiscation application, something that, as counsel for Mr Kamyab submitted, was “perhaps a unique event”.
In The London Borough of Barnet v Kamyab  EWCA Crim 1170 Lord Justice Edis said: “The effect of our decision is that this court will determine issues of fact effectively at first instance, and the usual right of appeal against sentence will not be available to Mr. Kamyab. The right of appeal he has is the very circumscribed right of appeal to the Supreme Court which requires the certification of a point of law of general public importance. Such an application in relation to this part of the decision would face certain difficulties…..
“It appears to us that we should have regard to that in the way in which we deal with the case at this stage. We are constituted as a court of three judges and we have taken particular care to work collaboratively so as to ensure that Mr. Kamyab has the benefit of the same type of tribunal which would consider any such appeal. This is the judgment of the court to which we have all contributed. We have directed ourselves, in particular, that any issues of law which are genuinely arguable should be resolved for our purposes in favour of Mr. Kamyab. This means that our decisions on such points are not authoritative decisions of this court.”
Lord Justice Edis added: “For this reason, and because it accurately reflects the true nature of what we are doing, this decision will be framed in the same way we would expect a Crown Court judge to express reasons for making an order following a complex and contentious confiscation hearing. We are not seeking to give guidance for other cases, or establishing any form of precedent. The purpose of this judgment is to explain to the parties and the public why we have come to the conclusions we have reached, and nothing more.”
The Court of Appeal went on to reject Mr Kamyab’s evidence that the available amount was nil, and found that he had failed to prove that it was less than the benefit figure.
It made a confiscation order in the sum of £499,363, and allowed three months for this to be paid. The term of imprisonment in default will be three-and-a-half years.
See also: Confiscation and enforcement notices: the roll-back from Panayi by Richard Furlong.