Proceeds of Crime and Money Laundering
His Honour Judge Michael Hopmeier, Andrew Mitchell QC
Tuesday 3 May 2011
Confiscation Problem
1.
John Smith has been convicted (after a trial) of fraud in relation to funds which had been
collected for charity. £30,000.00 had been collected by Mr. Smith on behalf of the Charity for relief
efforts in Kirkistan, but £15,000.00 of the sums collected were diverted to Mr.Smith’s personal bank
account. At trial he claimed that he needed the money to pay off pressing loans amounting to
£14,995.00 from unscrupulous lenders who were threatening him and his family. He always
intended to ensure that £15,000.00 of his own money, as soon as he was able to earn it, would be
remitted to the charitable funds within a short time. Unfortunately (after paying off the lenders) he
fell seriously ill and was unable to repay the money. It transpired that the Defendant had a £5.00
note left after he had repaid the lenders the balance of the £15,000.00 which had been diverted to
his account.
Before trial John decided to use the £5.00 note to buy a ticket on the Euro-lottery. He won
£50,000.00. He drew that out in cash soon after receiving the winnings into his account. The
Prosecution were unaware of these winnings until after some months and failed to obtain a restraint
order.
John Smith is aged 64, has an exemplary character apart from this offence. The Judge accepted that
he was under threats which fell short of duress to pay the lenders some money and was seriously
and terminally ill at the time of sentence. In the circumstances the Judge was persuaded by Defence
Counsel to impose a conditional discharge. The Judge postponed confiscation proceedings stating “I
am determined to ensure that every penny of the £15,000 you effectively stole is repaid to the
charity...”
At the confiscation hearing the Prosecution contend that John Smith must have at least £30,000.00
remaining from his winnings, allowing for ordinary living expenses. John Smith says that he has been
spending a lot of money (in cash) on faith and spiritual healers (having given up on the NHS) as well
taking out all his family for expensive meals, paid for in cash, (he wants them to enjoy as much as
possible whilst he is alive) so that he only has in any event £5,000.00 left. He has no receipts for his
expenditure.
(i) The Prosecution say that the benefit figure is £50,000.00 and an order should be made in the
sum of £30,000.00. They contend that John Smith’s alleged expenditure is a fabrication.
The Defence say that the benefit figure is £15,000.00 and the order should be limited to
£5,000.00.
© Michael Hopmeier 2011
(ii) When it comes to giving evidence, John, who is a Knight of the brethren of St Hilda, a deeply
traditional and religious sect and who regard it as inappropriate and indeed
blasphemous to take an oath on the bible, wishes to affirm: The following exchange
takes place in the witness box before any oath or affirmation is takenJudge:- I see you decline to take an oath on the bible- Do you not believe in the bible?
JS:- certainly it is a holy book containing the words of the Almighty,
Judge :- well don’t you think it would be better if you took an oath on it?
JS:- I am afraid, my Lord, the brethren of St Hilda consider it would be quite wrong to
swear on the most holy of all books. I am myself a knight and an elder of the brethren
and I must of course set an example. On this point we agree with our brothers in
Sidmouth.
Judge :- Yes indeed, I am of course aware of the Sidmouth Brethren; but given your
stated respect for the holy book and the fact that I of course understand that you would
not wish to tell untruths in the presence of the Almighty don’t you think your evidence
would be more persuasive if you took the oath just this once........
JS:- If I affirm to tell the truth I will tell the truth;
Judge:- I am very surprised Mr. Smith, but there we are of course I shall listen ,most
carefully to what you have to say even though you decline to give evidence on oath on
the bible....
Defence Counsel invites the Judge to recuse himself for actual or apparent bias.
The Judge rejects the submission stating that it is a ridiculous and indeed an offensive
submission and that some of his best friends are brethren of St Hildas.
After hearing all the evidence the Judge rejects Mr.Smith’s evidence on the expenditure
issue and finds it to be a tissue of lies and he further comments that he is not surprised
that he , Mr. Smith, declined to take an oath on the bible.
He finds the benefit figure to be £50,000.00 and the recoverable amount to be
£30,000.00 to be paid within 7 days with 2 years imprisonment in default. Out of the
£30,000.00, £15,000.00 is to be paid by way of compensation to the Charity.
7 days after the hearing and Order, Defence Counsel returns to the Court and invites
the Judge to set aside the Order.
Defence Counsel : “I do apologise Your Honour but I failed to note that the Court has
no jurisdiction to make a confiscation order after it has imposed a Conditional Discharge.
You must now discharge it since it was made without jurisdiction and must be “void ab
initio”. May I refer you to the JSB Confiscation Guide page.................. “
Judge ......”to the what?.......”
Discuss
MH 2011
© Michael Hopmeier 2011