Success for St Philips Barristers in £1m confiscation proceedings test case

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In a Court of Appeal case (London Borough of Islington v Bajaj [2020] EWCA Crim 1111), St Philips Richard Atkins QC leading colleague Ben Close, have defeated the London Borough of Islington’s “test-case” confiscation proceedings for almost £1 million.

In a prosecution pursuant to the Houses of Multiple Occupation Regulations, the council had sought to establish that the pecuniary advantage to a landlord of not providing appropriate accommodation for 20 tenants was the cost of providing permanent accommodation.

The council estimated it would have cost over £345,000 to build, or over £917,000 to purchase.

At the very recent proceedings in the Crown Court, Richard and Ben successfully argued that the appropriate measure of pecuniary advantage was the rent received, not the costs of purchasing or building the property.

Because of the way the charges were drafted, Richard and Ben were able to argue, successfully, that any amount of confiscation should be restricted to one day’s rent, and the Crown Court Judge made an order for confiscation in the sum of £200.00.

The prosecution appealed the order to the Court of Appeal where Richard and Ben again successfully argued that the pecuniary advantage was limited to the rent received and leave for the prosecution’s appeal was refused.

The Court of Appeal indicated that the cost of repairs to bring the premises up to an appropriate standard might have amounted to a pecuniary advantage but as the figures were not agreed and the case could not be remitted to the Crown Court on a prosecutor’s appeal no order was made.

The Court of Appeal held the approach pursued by the Local Authority was “far too broad, indeed speculative, an approach to have sufficient connection with the conduct alleged.”

In giving judgment Lord Justice Nigel Davis stated:

“We are not aware if any other Local Authorities have been contemplating pursuing confiscation proceedings, in this particular context, in the way in which they were pursued in this case. Mr Menzies (prosecuting Counsel) said that he thought that one such case had been in a Crown Court on a previous occasion. At all events, this case seems to have been viewed as a sort of test case. We therefore certify this judgment as one which may be cited: so that other Local Authorities are aware of the prospective limitations on pursuing confiscation proceedings, in this particular context, in the way which occurred here.

This case also operates as a reminder of the necessity for drafting the relevant charges appropriately and as a salutary warning as to the potential consequences if they are not.”