Richard David Arthur v The Attorney General

JurisdictionJersey
CourtCourt of Appeal
JudgeCollas JA
Judgment Date29 January 2020
Neutral Citation[2020] JCA 16
Date29 January 2020

[2020] JCA 16

COURT OF APPEAL

Before:

James W. McNeill, Q.C., President

John Martin, Q.C., and

Sir Richard Collas, Bailiff of Guernsey.

Richard David Arthur
and
The Attorney General

and

Pamela June Arthur and Maureen Patricia Brunker
The Attorney General
and
Richard David Arthur

and

Pamela June Arthur and Maureen Patricia Brunker

Advocate N. Mière for Richard David Arthur.

Crown Advocate D. J. Hopwood for the Attorney General

Advocate P. G. Nicholls for Pamela June Arthur and Maureen Patricia Brunker.

And

Crown Advocate D. J. Hopwood for the Attorney General

Advocate N. Mière for Richard David Arthur

Advocate P. G. Nicholls for Pamela June Arthur and Maureen Patricia Brunker.

Authorities

AG v Arthur [2018] JRC 129.

Arthur v AG [2018] JCA 217.

Proceeds of Crime (Jersey) Law, 1999

AG v Arthur [2019] JRC 175

R v Waya [2012] UKSC 36.

R v Jawad [2013] 1 W.L.R. 3861

AG v Arthur [2019] JRC 113

R v Soneji [2005] UKHL 49

AG v De Silva [2008] JRC 033

Flynn v Reid [2012] (2) JLR 226

R v Nelson [2010] QB 678

R v Guraj [2017] 1 WLR 22

Application by the Attorney General to appeal a confiscation order and an application by Mr Arthur to appeal against sentence.

Collas JA
Introduction
1

This is the judgment of the Court.

2

On 12 September 2019 the Royal Court (Samedi Division) (Commissioner J.A. Clyde-Smith OBE and Jurats Blampied, Ramsden, Ronge, Dulake and Averty) made a compensation order and a confiscation order against Richard David Arthur (“Mr Arthur”) who, on 2 July, 2018, had been sentenced by the Superior Number of the Royal Court to seven years' imprisonment for three counts of fraud, three counts of fraudulent conversion and four counts of falsification of accounts ( AG v Arthur [2018] JRC 129). That sentence was upheld by this Court on 28 November 2018 ( Arthur v AG [2018] JCA 217).

3

We are concerned with appeals by both the Attorney General and Mr Arthur against the orders made on 12 September. Mr Arthur is also appealing an earlier decision of the Royal Court (Samedi Division) dated 18 June 2019 (Commissioner JA Clyde-Smith OBE and Jurats Crill and Hughes) granting a postponement of the Attorney General's application for a confiscation order notwithstanding that more than six months had elapsed since the date of Mr Arthur's sentence.

4

Leave to appeal was granted to both parties (in so far as it was required) by Martin JA, sitting as a single judge of this Court, in a judgment dated 18 November 2019. He also directed that Mr Arthur's mother and mother-in-law, Pamela June Arthur and Maureen Patricia Brunker (“Mrs Arthur Senior”, “Mrs Brunker” and together “the Intervenors”) be treated as parties to both appeals. They had both obtained civil judgments against Mr Arthur for recovery of monies loaned to him.

5

At the hearing of the appeals, Crown Advocate Hopwood appeared for the Attorney General, Advocate Mière for Mr Arthur and Advocate Nicholls for the Intervenors.

6

In this judgment, after reviewing the factual background, we deal first with the Attorney General's appeal.

Factual Background
7

There were three victims of the offences committed by Mr Arthur namely Faircliff Property Company Limited (“Faircliff”), Library Place Investments Limited (“Library Place”) and a private individual (“Victim 3”). On the face of the indictment, the amounts of which they were defrauded were £1,869,401, £69,000 and £90,000 respectively. After adjusting those losses for inflation by reference to the Jersey Retail Prices Index, as required by paragraph (5) of Article 2 of the Proceeds of Crime (Jersey) Law, 1999 (“the Proceeds of Crime Law”), the Royal Court declared that Mr Arthur had benefited from his crimes in the sum of £2,967,370.79.

8

Faircliff had reached a confidential mediated settlement with Mr Arthur in full and final settlement of past and future claims arising out of the fraud and any other claims against him. The only information about the agreement was led by the Attorney General who told the Court that Faircliff was not prepared to reveal the terms of the settlement in order not to jeopardise it. The evidence was that the conveyancing statement for the sale of Mr Arthur's matrimonial home recorded that Faircliff received £1,296,109.35 out of the proceeds, which was less than Faircliff's loss on the face of the indictment. The Attorney General invited the Royal Court to make a compensation award in favour of Faircliff of its own motion but the Court declined to do so on the ground that Faircliff's loss had been fully restored as we explain below.

9

The Attorney General did not seek any compensation for Library Place because its loss had been fully repaid by a co-defendant of Mr Arthur.

10

The only compensation ordered by the Royal Court was in favour of Victim 3. The amount by which he had been defrauded was £90,000. £20,000 had been repaid shortly thereafter leaving a loss of £70,000 which, after adjusting for inflation, was assessed by the Court in the sum of £88,904 and it ordered compensation in that amount.

11

In addition to that compensation order, the Royal Court made a confiscation order in respect of the benefit received by Mr Arthur from the fraud committed against Library Place. The sum defrauded was shared with Mr Arthur's co-defendant. After adjustment for inflation, Mr Arthur's half share was assessed as £43,816.98 and a confiscation order was made in that amount.

The Attorney General's appeal
12

The Attorney General has appealed the judgment of 12 September 2019 ( AG v Arthur [2019] JRC 175) (“the 12 September 2019 Judgment”) on the ground that “The Royal Court erred by misapplying the principle of proportionality in Article 1 Protocol 1 to the European Convention on Human Rights (as applied in Jersey by the Human Rights (Jersey) law 2000) (“Article 1 Protocol 1”)”. The question of law raised by the Attorney General in respect of which Martin JA granted leave to appeal is “Whether Article 1 Protocol 1 operates to reduce a confiscation order to nil where the Defendant has settled civil proceedings brought against him by his victim for a sum of money that is less than the benefit he obtained from his crimes”.

13

Mr Arthur contends that the Attorney General is taking a new point on appeal that was not raised in the Royal Court. When he granted leave to appeal, Martin JA held that the arguments the Attorney General wishes to make are well within the ambit of his submissions in the court below. We all agree for the reason that the main focus of the submission relates to the application of Article 1 Protocol 1 (“A1P1”) in this case. A1P1 was raised by Advocate Mière in support of his contention that the imposition of either a compensation order or a confiscation order in respect of the loss suffered by Faircliff would be disproportionate in circumstances where the company had already been compensated for its loss as a result of the confidential mediated settlement.

14

The Attorney General's Notice of Appeal did not specify what relief he was seeking but at the oral hearing, Advocate Hopwood stated that he sought a variation to the confiscation order to an amount equal to the value of the available assets of Mr Arthur. A consequence of such a variation would be that Mr Arthur would have no surplus assets against which the Intervenors could enforce their civil judgments whereas at present they stand to recover the bulk of the monies they are owed. Advocate Nicholls' submissions on their behalf supported those made by Advocate Mière on behalf of Mr Arthur.

15

In response to the Attorney General's appeal, Advocate Mière emphasised the extent of the discretion conferred by the Proceeds of Crime Law on the Royal Court which is wider than the comparable jurisdiction vested in English courts as a result of which care must be taken when looking to English decisions for guidance. He also stressed the need to take care when looking to decisions decided in England before R v Waya [2012] UKSC 36 and before issues as to A1P1 and proportionality were applicable in cases where there had been repayment or part-payment made to the victim of the crime. He acknowledged that an agreement reached in a prior civil settlement will not automatically reduce a confiscation order to nil but the issue of proportionality must be decided on the particular facts of the case. He submitted that a full and final mediated settlement as in the present case is different from either a part-payment to the victim or a judgment obtained by the victim which has not yet been satisfied. He said the Attorney General's position on proportionality has shifted from the position he adopted at first instance, for example the Attorney General now contends that a sum paid by a defendant to the victim should not be required to be confiscated and paid once again to the Crown. The issue of proportionality should be determined by the Court at the confiscation hearing and any reductions made under A1P1 and/or the Court's discretion conferred by article 4(3) of the Proceeds of Crime Law should be applied both to the “penalty” and to the benefit figure calculated by the Court. Finally, he contends that the issue of proportionality was properly considered by the Royal Court in the exercise of its unfettered discretion and this Court should not interfere with its conclusion.

16

We begin by quoting from Articles 3 and 4 of the Jersey Proceeds of Crime Law and sections 6 and 7 of the English Proceeds of Crime Act in order to illustrate the differences between the two pieces of legislation.

17

“The Proceeds of Crime Law

3 Confiscation orders

  • (1) Where a defendant appears before the Court to be sentenced in respect of one or more offences specified in Schedule 1, and the defendant has not previously been sentenced or otherwise dealt with in respect of his or her conviction for the offence or (as the case may be) any of the...

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