R v Jacqueline Marie Stewart

The applicant sought an extension of time of 61 days in which to renew her application for leave to appeal against a receivership order pursuant to section 65 of the Proceeds of Crime Act 2002 following refusal by the Single Judge. She also sought leave to rely on evidence pursuant to Article 7 of the Proceeds of Crime Act 2002 (Appeals Under Part 2 Order 2003). These are fresh evidence provisions closely analogous to section 23 of the Criminal Appeal Act 1968, although it is not at all clear to us whether the evidence is in fact new. The applicant says that the evidence was provided to the court below.

At her request earlier this week we granted the applicant the opportunity to attend via video link to make brief oral submissions on her application. At 21.02 last night she sent an email to the Court saying that she was struggling to cope with being able to convey herself. She referred to mental health issues and said that she had realised she was not strong enough to go through with her application in person. She concluded by saying:

It is right to say that by the time that communication was received we had already spent considerable time reading all the material which the applicant had placed before the Court and we had formed a preliminary view on the merits subject to hearing any additional submissions from the applicant. We note that the applicant has repeatedly complained of being deprived of an opportunity to make representations. We have paid close attention to that complaint, and considered whether anything in the material before us suggests that she has not had fair opportunity to put her case such as might give rise to valid grounds of appeal. Although her communications suggests that she may now wish to withdraw her application for leave to appeal, having considered it in detail and lest it may be later be suggested that her inability to attend in person today has deprived her of an opportunity to pursue a meritorious appeal, we think it appropriate to give judgment upon the application.

The receivership order which the applicant sought to appeal was made by HHJ Bury at Kingston upon Hull Crown Court on 7 February 2024. The circumstances leading to the making of that order are as follows. The applicant was formerly in a relationship with a man named Arthur Wilder. She had several business interests with Mr Wilder. In evidence she gave in the Crown Court, she said that Mr Wilder controlled all the businesses and did what he wanted often without her knowledge. On 19 June 2018 Mr Wilder was convicted of three offences related to mortgage transactions, namely attempting to obtain a money transfer by deception, fraud and converting criminal property. Mr Wilder sought leave to appeal his conviction. His application was refused by the Single Judge and by the Full Court. The circumstances of the offending are set out more fully in the judgment of the Full Court (R v Wilder [2022] EWCA Crim 842) and do not need to be repeated here.

Following Mr Wilder's conviction the Crown sought a confiscation order pursuant to section 6 of the Proceeds of Crime Act 2002. In the course of the confiscation proceedings a number of third parties claimed an interest in the assets held by Mr Wilder. These parties were a couple named Mr and Mrs Stretton, Sarah Lingard and the applicant. The claim of Mr and Mrs Stretton, which concerned a property and/or land known as Ash Lane, was complex and was resolved before the confiscation proceedings were heard by way of High Court proceedings which resulted in the Strettons effectively buying out Mr Wilder's interest in the land.

Mr Recorder Kelbrick heard the application on 5 and 6 June 2024. Mr Wilder did not attend the hearing but was represented. The Strettons were no longer interested parties in light of the outcome of the High Court action. Sarah Lingard had sadly died by the time of the confiscation hearing. Mr Ian Yarwood claimed that Sarah Lingard’s interest had been assigned to him. On that basis he sought to address the court. However, the Recorder concluded that he had no standing. The applicant attended the hearing via a videolink. She was permitted to address the court and her claim was considered.

The applicant contended that she had an interest in cash received either as a loan or the proceeds of a sale, in a diamond ring and in what was described as a cherished number plate. By the time of the hearing the number plate had been sold and the proceeds dissipated. The Crown did not seek to take the matter further and it therefore fell out of consideration. The court was therefore concerned with the applicant's claim in relation to the diamond ring and in respect of moneys from the proceeds of sale of Ash Lane, and a deposit paid for another property known as "The Arcade". The applicant gave evidence and was cross-examined. She also made submissions on her claim.

The applicant's evidence in relation to the ring was to the effect that it was bought for $28,000 from a Citibank account into which the mortgage moneys that had been fraudulently obtained had been paid. While she said that she had contributed moneys from premium bonds in which she had invested her share of an inheritance, she accepted that such moneys had never passed through the Citibank account from which the purchase was made. In giving judgment the Recorder said:

Following the ruling dismissing all third party claims the Recorder made a confiscation order against Mr Wilder on 7 June 2024 at a hearing at which Mr Wilder was present and represented. He assessed the benefit obtained as a sum in excess of £1.4 million and the available amount as £497,108.11, making a confiscation order in that lesser amount. The sum received was to be paid to the Bank of Scotland as compensation.

On 3 July 2023, the applicant applied to appeal pursuant to section 31 of the Proceeds of Crime Act against the court's determination under section 10A of her interest in the above assets. Her application was not properly served. On 27 July 2023, the Criminal Appeal Office was informed by the prosecution that it intended to appoint an enforcement receiver pursuant to section 50 of the Act. Given this, the Registrar confirmed that the third party’s right to appeal under section 31 was extinguished pursuant to section 31(8). The applicant was informed of this on 11 August 2023.

The application to appoint an enforcement receiver came before HHJ Bury on 7 February 2024. The applicant did not attend but made representations in writing. The judge determined that the points she had raised were essentially the same as those already raised during Mr Wilder’s appeal proceedings and/or during the original confiscation proceedings. He appointed a receiver pursuant to section 50. It is that order which the applicant seeks to appeal.

The Single Judge refused her application for leave on 2 January 2025 and the applicant was notified of that refusal on 8 January. She did not return the form seeking to renew the application until 24 March 2025. The applicant explains that her brother passed away on 7 January and that this overshadowed all other aspects of daily living. We are prepared to accept that this could amount to a good reason for extending time, and would probably have granted the necessary extension. We have therefore considered the application for leave on its merits.

By her Notice of Appeal the applicant confines her application for leave to that part of the receivership that related to the diamond ring. Her grounds of appeal were lengthy and in places were frankly difficult to follow. Despite apparently limiting her appeal to that part of the order that concerned the diamond ring, her grounds went beyond that and sought to argue the ruling made by Recorder Kelbrick was generally wrong. She sought to reopen her arguments in relation to Ash Lane. It appeared that the applicant accordingly sought to challenge the decision of the Recorder in June 2023, albeit that was not the appeal that was before the court and in relation to which we were invited to give leave.

The determination by the Recorder was made pursuant to section 10A of the Proceeds of Crime Act. An appeal against a ruling under section 10A may be made pursuant to section 31 by a person who the Court of Appeal thinks is or may be a person holding an interest in the property, if certain conditions apply. The conditions are that the person was not given a reasonable opportunity to make representations when the determination was made or that it appears to the Court of Appeal to be arguable that giving effect to the determination would result in a serious risk of injustice to that person.

Pursuant to section 31(8) no such appeal lies where an application is made by the prosecutor for the appointment of a receiver. It was upon that basis that the applicant was advised that her appeal under section 31, against the determination by the Recorder, had lapsed.

Where an application to appoint a receiver is made under section 50, pursuant to section 51(8) the court must not confer powers to manage, realise or deal with property unless it gives persons holding interests in the property a reasonable opportunity to make representations to it. The applicant argued that she did not have a reasonable opportunity to make representations in the receivership proceedings because she was medically unfit to attend the hearing. She submitted medical evidence to support that claim.

Pursuant to section 51(8)(b) representations that a person is entitled to make by virtue of subsection (8) do not include representations that are inconsistent with a determination made under section 10A unless (a) the person was not given a reasonable opportunity to make representations when the determination was made and has not appealed against the determination, or (b) it appears to the court that there would be a serious risk of injustice to the person if the court was bound by the determination. It follows that even if the applicant had attended the hearing before HHJ Bury, she would not have been entitled to repeat those submissions that she had already been afforded the opportunity to make to Recorder Kelbrick unless it appeared that there would be a substantial risk injustice to her if she was bound by his determination. The reality is that the applicant did make full representations to the Recorder. Whatever she may now say about him having had limited opportunity to consider the papers in advance, it is apparent from his ruling that he listened to her evidence and to her submissions and weighed them in the balance. Indeed he appears to have accepted her evidence and to have received her submissions with some sympathy. There is no arguable basis for contending that the Recorder made any error of law. Even had the appeal against his determination not lapsed, we are satisfied that leave to appeal would not have been granted.

It follows that when the matter came before HHJ Bury in February 2024 there was a legally sound determination under section 10A. The applicant had been given a reasonable opportunity to make representations before that determination was made. There was no basis for the court to consider that there would be a serious risk of injustice if the court proceeded on the basis that it was bound by the Recorder's determination under section 10A.

In addition to considering the grounds of appeal in supporting documents we have also considered the fresh evidence she seeks to put before the Court in the form of statements from Ian Yarwood, dated 23 February 2024 and 23 April 2024. We note that these are essentially statements of opinion relating to Mr Wilder's conviction. Having conducted that exercise, we find ourselves in agreement with the Single Judge that the applicant's appeal is not reasonably arguable. Like the Single Judge, we are satisfied that HHJ Bury was entitled in the circumstances of this case to find that the applicant was given a reasonable opportunity to make representations when the section 10A determination was made and that the representations which the applicant then sought to make were essentially repetition of what had been said before and represented no more than disagreement with the decision of the Recorder.

As we have already said, we are satisfied the Recorder was entitled to come to the conclusion that he did on the evidence before him, including that of the applicant which he accepted. The medical evidence before the court was limited but, in any event, there would have been no purpose in adjourning the enforcement proceedings to allow the applicant to attend since the representations she sought to make and had advanced in writing would have fallen foul of section 51(8) (b). Contrary to the arguments advanced by the applicant the Recorder was not misled by the prosecution when making his determination. We see no merit in the arguments advanced by the applicant to that effect. We agree with the conclusions of the Single Judge that the Recorder's decision in relation to the diamond ring, which was the sole subject of this appeal as set out in the Notice of Appeal was based on the applicant's own evidence and that there is no basis for that issue to be reopened now.

Insofar as the applicant sought to advance arguments in relation to the Ash Lane property, that property was the subject of High Court proceedings with which she had been served. She did not apply to be joined as a party. We agree that the Recorder was entitled to proceed on the basis of the High Court proceedings. The applicant has raised no arguable basis to reopen that issue within the context of this appeal. As the Single Judge noted, arguments in relation to the original complaint against Mr Wilder were considered and rejected by a different constitution of this Court, on the hearing of his application for leave to appeal, and the making of the confiscation order was not opposed by Mr Wilder. We agree with the Single Judge that the views expressed by Mr Yarwood and others on the circumstances in which Mr Wilder came to be prosecuted do not assist the applicant. We do not consider that the new evidence would afford any ground for allowing this appeal. Accordingly, regardless of whether the other conditions for the admission of fresh evidence contained in Article 7 of the 2003 order could be satisfied, we are satisfied that it will be inappropriate to admit this evidence. In all the circumstances, the application for leave to appeal is refused.