R v Joel Salem & Anor

When these appellants applied for leave to appeal against sentence, the single judge granted leave to appeal on one ground only, and refused permission to appeal on the five other grounds. Conveniently in terms of the numbering of the grounds, it was Ground 1 that was granted leave, with grounds 2 to 6 inclusive refused. At the hearing of the appeal on Ground 1, the appellants renewed their application for leave on all the other five grounds. We therefore considered the renewal application first, prior to hearing the appeal on Ground 1 and any other grounds which were granted leave. Following the oral submissions on renewal, we granted leave on Ground 4 also. Our reasons for refusing leave on the other grounds are dealt with further below, as part of this judgment on the appeal. We reserved judgment at the hearing of 7 November 2025.

For convenience we shall refer to the appellant/applicants as Salem and Robinson-Dadoun; we intend no discourtesy by doing so. On 16 June 2020, in Highbury Corner Magistrates’ Court (before District Judge Gillian Allison), Salem (then aged 61) and Robinson-Dadoun (then aged 53) were each convicted of failing to comply with an enforcement notice, contrary to section 179(2) and (8) of the Town and Country Planning Act 1990 (as amended). They were committed to the Crown Court for orders under the Proceeds of Crime Act 2002 (‘POCA’) to be considered, and to be sentenced. For completeness only, there was an appeal by way of case stated which was heard in a Divisional Court of the Administrative Court (Singh LJ and Foxton J). This was unsuccessful and the judgment is at [2021] EWHC 2530 (Admin). The enforcing authority for planning matters was the London Borough of Camden (“the Council”), which means that it was the prosecuting authority too.

On 14 September 2023, in the Crown Court at Wood Green (before His Honour Judge David Aaronberg KC), the appellant Salem was ordered to pay a Confiscation Order of £1.00 under Section 6 of POCA or in default he was to serve one day imprisonment (which was deemed to have been served). The appellant Robinson-Dadoun was also ordered on the same day and before the same judge to pay a Confiscation Order of £16,696 under the same statutory provision. This was to be paid within 3 months, or in default she was to serve 12 months’ imprisonment.

On 27 February 2024, (before the same Court) Salem was ordered to pay a fine of £262,500. That was to be paid within 9 months, or in default he was to serve three years’ imprisonment. He was also ordered to pay £185,258.73 towards the costs of the Council incurred in bringing the prosecution. On the same day and, once more, before the same judge, Robinson-Dadoun was ordered to pay a fine of £70,000. This was to be paid within 9 months, or in default she was to serve 18 months’ imprisonment. She was also ordered to pay £61,752.91 towards the costs of the Council in bringing the prosecution.

In outline terms only, the subject matter of the prosecution and convictions was the ownership of a property that was divided into more flats than permitted by the planning permission for that property. The planning permission was for the relevant property to be converted into four flats. In breach of this, and what appears to have been quite deliberately, the appellants decided to convert it into seven flats. The Council took enforcement action and issued an enforcement notice. If that occurs, it is a statutory offence not to comply with the enforcement notice. Despite the issuing of that notice, it was ignored and the appellants continued to rent out the seven flats. This continued for a significant period of time. Fresh tenancies were entered into notwithstanding the enforcement notice and the commencement of the prosecution itself. The behaviour of Salem was described as “egregious” by the sentencing judge. The factual circumstances put into context the high level of fines imposed on these two appellants.

Prior to 15 March 2015, the relevant provisions in terms of sentencing for the offence of which the two appellants were convicted were as follows in Section 179 of the Town and Country Planning Act 1990:

“(1)

Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.

(2)

Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.

(3)

In proceedings against any person for an offence under subsection (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.

…….

(8)

A person guilty of an offence under this section shall be liable—

(a)

on summary conviction, to a fine not exceeding £20,000; and

(b)

on conviction on indictment, to a fine.

(9)

In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.”

However, from 15 March 2015, these provisions changed in terms of the level of fine, and the relevant sub-section 8 in the part of the statute which we have reproduced above was changed. The later version of section 179(8) was substituted into the Town and Country Planning Act 1990 on 12 March 2015 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 (S.I. 2015/664), reg. 1(1), Sch. 4 paragraph 18(3) (with reg. 5(1)). I shall refer to these at “the LASPO Regulations”.

The later version of the relevant part of section 179 of the Town and Country Planning Act 1990 became:

“(8)

A person guilty of an offence under this section shall be liable on summary conviction, or on conviction on indictment, to a fine; and

(9)

In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence”.

There was therefore, after that date, no statutory maximum in terms of the size of the fine that could be imposed by the Magistrates’ Court under the statute. This aligned the potential level of fine with the position in the Crown Court. This was confirmed in R v Roderick Bloor [2020] EWCA Crim 402. That decision of the Court of Appeal (Haddon-Cave LJ, Edis J as he then was, and Johnson J) made clear the approach that should be adopted when considering the level of fine, describing the powers of the court at [15] as “a broad sentencing canvass within the general principles set by the statutory purposes of sentencing....."

In the instant case for these appellants, the dates of the offending were from 19 May 2011 to 6 June 2018; this date range spans the date of change to the statutory maximum level of fine permitted on summary conviction, following the change made in the LASPO Regulations.

It is agreed in this case by the parties that the Crown Court, for offences that were committed prior to 15 March 2015, had the powers to impose a fine that was not subject to the limit of £20,000. That much is clear from the wording of the statute. The limit of £20,000 however was the maximum fine that could be imposed by the Magistrates’ Court prior to the date that the provision was changed. However, unless the matter was properly committed to the Crown Court for sentence, the Crown Court would be limited to the powers of the Magistrates’ Court in this respect. In view of the level of the fines that were imposed upon the two appellants, if the Crown Court were limited to the powers of the Magistrates and these were only available in the total sum of £20,000 each, it would obviously make a great deal of difference to the outcome of this appeal.

Prior to determining the sanctions, the judge had conducted a two day hearing in September 2023 and a three day hearing in February 2024, in which the appellants were cross-examined. In his sentencing remarks, he made a number of observations and findings. As he had conducted both the hearing in the confiscation proceedings and the subsequent one in February 2024 in relation the fine, including observing all the evidence and the cross-examination, he was significantly immersed in the detail. He stated:

“[13] In this case, there is a huge chasm between the parties. The Council argues that each defendant has the capacity to pay many hundreds of thousands of pounds to meet any order which the court might make as to fine and costs. On behalf of each defendant, it is submitted that each is so impoverished that they would be able to pay a fine of no more than £5,000, if given two years to pay, and nothing towards the Council’s costs of prosecution.

[14] As already indicated, the enforcement notice was issued on 6th October 2010 and the defendants were required to comply by 17th May 2011. The defendants failed to comply, ignoring repeated written warnings as to the potential consequences. Summonses were eventually served on the defendants on 5th October 2018, alleging that the defendants had acted unlawfully between 19th May 2011 and 7th June 2018.

[15] Notwithstanding the receipt of the summonses, and even after the defendants’ first appearance in the Magistrates Court in late 2018, new tenancy agreements continued to be issued up to and including early in 2019. The defendants continued to receive rents until the property was sold, on 29th April 2021.

[16] Following a three day hearing earlier this month, the parties have submitted lengthy written closing submissions in relation to the orders which I must now make, both in relation to sentencing and costs. I am extremely grateful to counsel for their diligence. I mean no discourtesy to them, nor to those who have instructed them, by failing, in this ruling, to address every point which has been raised. I have resisted setting out the minutiae in relation to a very large number of business transactions in relation to which evidence was called and in respect of which submissions have been made”.

He went on to make findings that the bulk of the rental monies went into the appellants’ direct control and that both the defendants before him bore high culpability in respect of their failure to comply with the enforcement notice. His written sentencing remarks are comprehensive and clear. He stated:

“[35] Each was directly involved in the letting of the property after the notice came into force, as shown on various tenancy and other signed management and other agreements; each was involved at various stages in the management of the property and plans for its future; each had previously owned property in and around London and plainly was fully capable of understanding and coping with the responsibilities of being a registered owner of property; each has had involvement with companies involved in the purchase, development and letting of property, and each would clearly have understood the requirements of the enforcement notice and the implications of failing to comply with its requirements over a protracted period.”

He made a number of adverse findings against the appellants. He found that the flats were used to house tenants in unsatisfactory conditions, and that the tenants were particularly vulnerable. Given there were seven flats in a property supposed to include only four, the unsatisfactory conditions are perhaps inevitable given how small these units could be; seven is only one fewer than double the permitted number of four. He explained that part of the purpose of the planning regime is to protect tenants such as these from exploitation. Another example is his finding at [53] that “I have no doubt whatsoever that, having been served with the enforcement notice in 2010, the defendants gave personal guarantees and deliberately entered into mortgage arrangements with a view to reducing their available assets from the grasp of the confiscation proceedings.” It was also the case that some mortgage arrangements, which were detailed and complex, were entered into after the enforcement notice was served. The relevance of the mortgages becomes clear when we deal with the renewed grounds.

There was considerable delay in the proceedings generally, which the judge found was caused by the appellants, who produced incomplete and late financial information notwithstanding an order from the court. He stated:

“[60] Although, ultimately, I was presented with several lever arch files of material, what was provided was incomplete and I have been left with an inadequate and opaque presentation of a highly complex web of financial dealings.

[61] The history which I have set out is germane to the assessment which I have had to make as to the defendants’ honesty in relation to the present proceedings. I do not intend to increase the fines which I shall impose any further beyond the total which I have indicated, but the defendants’ conduct falls to be taken into account in relation to the Council’s application for costs, to which I shall turn shortly.”

He therefore ordered significant fines to be paid, and made adverse costs orders against them both.

Both appellants appealed and the prosecuting authority submitted a Respondent’s Notice, for which we are grateful. We were assisted by comprehensive written submissions from both Mr Pons for the appellants and Mr Robb, together with their oral submissions at the hearing. There was also a very considerable amount of contemporaneous documentation submitted, in a number of appendices to the Perfected and Consolidated Grounds (“the Perfected Grounds”). In particular on Ground 1, there was very considerable citation of authority. We do not deal with each and every one of those legal submissions, or each of the numerous cases, in this judgment, as to do so would lengthen this judgment very considerably.

Returning to the contemporaneous documents, in total there were 31 different appendices to the Perfected Grounds, including financial information of numerous companies. As an example only, one of these was Imperial House Ltd, a company plainly associated with Salem whose bank statements were provided. These show very extensive movement of funds; one single bank statement from the Barclays Bank Business Current Account for the period 8 September 2018 to 5 October 2018 shows the movement of money out of that account for that period of £1.917 million. The money in for the same period was £4.348 million, with a closing balance of £2.439 million. These are, self-evidently, significant sums. The judge dealt with this in [69] of his sentencing remarks. This company was a single purpose vehicle, with these payments relating to the sale of Imperial House, the property the company was formed to develop. Salem gave evidence to the court that he made no profit whatsoever from this and that the bank statements were addressed to him as a matter of administrative convenience, evidence rejected by the judge. However and in any event, only incomplete bank statements for this company had been provided to the court below. The judge had relied upon this as one of the numerous factors leading to his conclusion that Salem is a wealthy individual who concealed his true wealth from the court, and that Robinson-Dadoun had undisclosed assets which were sufficient to pay a substantial fine and costs.

In the Perfected Grounds it is accepted “that the Applicants did not provide the full Imperial House bank statements and did not disclose Mrs Robinson Dadoun’s shareholding in Imperial House and thus in this respect there was material that had not been disclosed, which included material required by the financial circumstances order.” This means that the appellants now admit that at lease one of them, and possibly both, did not obey the earlier order that the sentencing judge had made in respect of disclosure of financial circumstances. Court orders are made to be complied with. We do not approach the issues on this appeal differently because the appellants chose not to comply with a clearly worded order. However, in respect of Ground 5, it is maintained by the appellants that the judge was wrong to draw the inferences that he had.

The grounds of appeal are as follows. They are that the amount of the fine and costs both separately and cumulatively were manifestly excessive, for six reasons. We shall quote them from the summary in paragraph 9 of the Perfected Grounds:

“Ground 1 - The Crown Court’s sentencing powers were limited to those of the magistrates’ court for part of the offending period. (“The Sentencing Powers”)

Ground 2 – the starting point adopted by HHJ Aaronberg KC was too high. (‘Starting

Point’)

Ground 3 – HHJ Aaronberg KC was wrong in law when he determined that he was not bound by his own finding in the confiscation proceedings, namely that Mr Salem did not have any assets available to him and that the value of the assets available to Mrs Robinson was only £16,696. (‘Confiscation Findings’)

Ground 4 – HHJ Aaronberg KC erred when he decided that the Applicants should pay the costs incurred by the prosecution in the confiscation proceedings, because these proceedings were determined largely in accordance with what the Applicants had maintained from the outset. In any event, it was wrong to conclude that the Applicants had the means to pay costs in the sum he ordered. (‘Costs’)

Ground 5 – It was wrong to decide that the Applicants has breached the Financial Circumstances Order in a material way and in any event it wrong to conclude that the only appropriate inference was that they were able to pay any financial penalty and costs. In particular, this approach failed to take into the account the findings in the confiscation proceedings and that thereafter no new assets had been identified. (‘Wrong Inferences’)

Ground 6 – Failure to properly consider that the entirety of the information provided by the Applicants related to the assets and liabilities of corporate entities rather than the Applicants themselves. (‘Company Assets’).”

We were persuaded by Mr Pons that Ground 4 was reasonably arguable and therefore granted leave on that ground. On Grounds 2, 3, 5 and 6 however, we were not so persuaded. We immediately, upon granting leave on Ground 4, heard the full appeal both on Ground 1 and Ground 4.

The explanation for our refusal to grant leave on the other grounds is that we fully agree with the reasons given by the single judge. We cannot improve upon the detailed explanation that he gave. They are as follows for those refused grounds.

“Ground 2: Starting point

The Judge’s task – as appears to be accepted – was to identify the financial benefit from the offending. The rental income was the financial benefit, assessed by the Judge to be £487,966.16. Perhaps generously to the Applicant, he reduced that for the purpose of sentencing to £300,000. The Applicant can hardly have any complaint about that reduction.

The Applicant’s submission that the Judge was required to take into account what, thereafter, happened to this benefit is, in my view, not arguable. The assessment is of benefit, not profit. The two Defendants decided what they wanted to do with this “benefit” and, apparently, chose to pay off a mortgage. But that is irrelevant. The figure of benefit remains the same, regardless of what the Defendants did with the money. They could equally have gambled and lost the money in a casino.

Ground 3: Confiscation proceedings

For the reasons advanced by the Respondent, I am not persuaded that the confiscation proceedings and the findings made in those proceedings have any real impact on the exercise the sentencing Judge had to perform.

…..

Ground 5: Wrong inferences

The Judge comprehensively rejected Salem’s evidence and the explanations of his lack of resources as a dishonest miasma. The purpose of this was, the Judge found, to hide the true extent of his assets. The Judge found, based on the evidence [75]:

“I am satisfied so as to be sure that [Salem] is a wealthy individual who has contrived, over many years, to produce an elaborate and impenetrable network of shareholdings, directorships and property assets initially in order to reduce tax liabilities and also, in the present context, to conceal his true wealth from the court. I conclude that he has the ability to meet any order as to fine and costs which I make”

There is no real prospect of the Applicant disturbing the Judge’s findings on an appeal.

Ground 6: Corporate entities

This adds nothing of substance to the other grounds and if falls with Ground 5. It was for the Applicant to persuade the Court, by evidence, that he actually had extremely limited resources such as to mean that he could not afford to pay any significant financial penalty. The Judge rejected the evidence the Applicant presented. It is not a proper function of an appeal to seek to advance the argument as second time with the hope of getting a better outcome”.

We would add this in relation to Ground 2. The argument advanced by the appellants are that the rental payments were paid out to satisfy payments due under a mortgage, or more accurately a number of mortgages, and that therefore they did not benefit by way of receipt of rent. Simply in case this point arises in other cases (and it may very well not) we wish to make it clear that in our judgment this argument is wholly misconceived in principle. In this case the mortgage payments were being made to other companies in the string or web of companies controlled by the appellants. That alone would be sufficient to demonstrate it is a bad point. However, it would also be a bad point even if those companies were not connected, or if the mortgage company were an arms length entity such as a well-known high street building society or bank. The person renting out flats within a property such as this one benefits by receipt of the rent. Whether that money is then expended by the recipient by way of payments due under a mortgage; or spent on jewellery; or given away to charity (which would be unlikely in these circumstances); or, as the single judge hypothesised, gambled away in a casino, does not much matter. It certainly does not lead to a change in character of the rent such that it is no longer a benefit. The benefit in a situation such as this, after letting out these flats for rent, is the receipt of the rent. Criminal ingenuity is often unbounded and there may be many ways of dealing with such funds after receipt. What happens to the funds after they are received cannot easily lead to a conclusion that there is no benefit.

In respect of Ground 3, it cannot be right that if a defendant has hidden or disguised their true financial position previously, and that advantages them by avoiding a confiscation order, the court is then always bound by that finding even after the true position becomes clear, much later. A defendant who misleads a court is lucky indeed if other steps such as contempt proceedings do not eventuate as a result, once the fact of the misleading is found out. But regardless of that, it is not arguable that the judge was bound by his earlier findings in the different confiscation proceedings. Far more evidence was available on the sentencing hearing, and more complete and different findings were properly made.

In respect of Ground 5 and the inferences drawn by the judge, upon review by this court any appellant faces a high bar in successfully demonstrating that the judge below, having conducted such a lengthy hearing, having considered the detailed and extensive documents, and seen first-hand the witnesses, was wrong in reaching the conclusions or drawing the inferences that he did. This must effectively mean he had reached conclusions or inferences which were simply not properly open to him on the evidence. The appellants simply do not come close to reaching the height of that bar, even on an arguable basis. There was no error in the judge’s careful approach, which he explained fully in his sentencing remarks. On the contrary, the judge was not only well placed to come to the conclusions that he did, but he was clearly right.

With the exception of Ground 4, none of the other renewed grounds are properly arguable. We therefore address the issues on the grounds of appeal as follows.

This concerns the sentencing powers available to the Crown Court given the difference in the available powers under section 179 of the Town and Country Planning Act 1990. It was a point raised by the Registrar of Criminal Appeals. There are two elements to this. The first is whether the Crown Court’s powers were limited in terms of the maximum fine that could be imposed to that which was available to the Magistrates’ Court. The second is, if that question is answered in favour of the appellants, what effect does that have upon the fine imposed by the judge?

Sections 70(1) and (2) of the Proceeds of Crime Act 2002 (‘POCA’) read together provide that if the prosecutor asks the Magistrates’ Court to commit a defendant to the Crown Court with a view to a confiscation order being considered, then the Magistrates’ Court must commit the defendant to the Crown Court in respect of the offence. That is what undoubtedly occurred here, when DJ Allison ordered the confiscation proceedings. However, for offences where the Magistrates’ Court has the power to commit a defendant to the Crown Court for sentence pursuant to s.14(2) of the Sentencing Code, then the court must state whether it would have done so.

The Crown Court’s sentencing powers on such a committal as occurred in this case are dealt with in section 71 of POCA. By 71(2), where the Magistrates’ Court has stated that it would have committed the defendant for sentence, then the Crown Court’s sentencing powers on such a committal are the same as they would have been if that defendant had just been convicted on the offence on the indictment. Here, that would mean the power to impose an unlimited fine, because the Crown Court (but not the Magistrates’ Court) had such a power prior to the amendment to section 179(8) of the Town and Country Planning Act. However, if that were not done, then the Crown Court’s powers would be limited to those of the Magistrates’ Court by virtue of section 71(3) of POCA.

Here, the certificate of committal that was issued by the Magistrates’ Court and which states that the appellants were being committed to the Crown Court for consideration of a confiscation order is silent in the sense that it does not contain a statement to the effect that in any event it would have committed them to the Crown Court for sentence pursuant to section 14(2).

There are two features that make this position a little more difficult to unravel than it would be if the certificate of committal itself had expressly stated this. The first is the period of time that has elapsed, and the second is that the Magistrates’ Court is not a court of record.

Both Mr Pons and Mr Robb appeared below in the Crown Court. They have both been entirely fair as one would expect, and Mr Pons does not submit that he did not expect a fine in excess of £20,000. Rather he approaches the matter as one of technical correctness because of the way the certificate of committal is drafted. He submitted that the effect of this court accepting his submissions on this point would not be that the fine was unlawful, because the conduct took place both before the relevant date when the Magistrates’ Court’s powers were increased when section 179(8) was amended. However, he submitted that if his submissions were correct, the court should take into account that the conduct prior to the relevant date could only have been dealt with in the Magistrates’ Court by way of a fine of £20,000 at most, and this should have been taken into account by the judge in the Crown Court as a matter of fairness.

The committal record sheet which is in the standard form in use at the time states “Before the Crown Court at Wood Green.

In April 2022 the Criminal Procedure Rules changed. Part 5 deals with Court Records, and 5.4 the duty to make records. In Crim PR 5.4(3) the court officer assisting a judge who is having the power of District Judges (Magistrates’ Courts) must record the magistrates’ court power exercised by that judge; arrange the transmission to the magistrates' court of the record; and under Crim PR 5.4(4) if the court record appears to the court officer to be incorrect, must correct it. This correction can be done if the parties so agree, or if the court so directs. Prior to April 2022, the rule did not use the word “must”, but rather used “may”. As at June 2020 therefore, there was no formal mandatory requirement that the court record be produced. That unsatisfactory situation has been remedied by the amendment to the rule.

Mr Pons submitted that there was a requirement for a declaration along the lines of section 14(2) of the Sentencing Code to be included in the committal certificate. He explained that this is the only way that the Crown Court could know that it had the wider powers as a result of the decision by the District Judge. He submitted that there would be no point in the District Judge making a statement that sentence was to be done in the Crown Court because the magistrates’ powers were insufficient, if nobody would know about it. He submitted that it was not irrelevant that there was no record. He said that the committal statement or certificate was the ideal document, if not the only document, that would do this; and the other emails upon which the prosecution relies to the contrary do not say that the necessary statement that the matter was being remitted to the Crown Court for sentence was made in open court.

In Hussain v R (London Borough of Brent) [2014] EWCA Crim 2344 the appellant was convicted of similar offences and received both a fine, a confiscation order of almost £500,000, and an adverse costs order. However, in that case the magistrates were content to retain jurisdiction over the matter of sentence, and committed the appellant to the Crown Court for sentence “solely because the prosecution sought to launch confiscation proceedings” – see [36] of the judgment.

Mr Robb submitted that the court officer on duty that day made it clear that such an order was made. Helpfully for our purposes, this is confirmed by an email from the Magistrates’ Court itself on 28 May 2021. The legal adviser, Mr Richard Goss, to the District Judge stated, in response to an enquiry from the Council regarding listing of the case, the following:

“This case was last listed at this court on 16/6/20. On that date the defendants were committed to Wood Green Crown Court for sentence and for consideration of a Confiscation Order…..”

Mr Robb also relied upon a number of other points. Given the length of time the breaches subsisted, and the many hundreds of thousands of pounds involved, it would have made no sense for the District Judge to confine the powers of the Crown Court on sentence in terms of the maximum size of the fine being fixed at £20,000, in particular when the fine had to be fixed in an appropriate and proportionate amount. He also submitted that there was never any doubt, on the part of anyone involved, but particularly the appellants, that the matter was sent to the Crown Court so that confiscation could be dealt with (the Magistrates’ Court lacking that jurisdiction) and for consideration of the wider sentencing powers (the fine being unlimited).

Yet further, that this had in fact occurred and also that the appellants knew that the Crown Court’s powers of sentence were an unlimited fine is clear from the written submissions made by the appellants themselves to the sentencing judge. In those written submissions, paragraph 3 expressly states “the Crown Court’s powers are set out in section 179(8) of TCPA, it can impose an unlimited fine” (emphasis added). This means that even the appellants’ own counsel lodged submissions consistent with the matter having been committed to the Crown Court for sentence. These submissions are directly inconsistent with the matter not having been committed to the Crown Court for sentence as required.

Although this point occupied a great deal of legal argument, ultimately it can be seen to be one of limited substance. When all the records are considered in overall terms, there is no doubt that this matter was committed to the Crown Court both for consideration of a confiscation order and for sentence. The Magistrates’ Court made the decision that the Crown Court should have the wider powers on sentence, notwithstanding that reason was not included as a separate statement in the certificate of committal. Committal for sentence does appear both in the Court Register extract and the Committal Record Sheet, but in the former it says “for sentence or to be dealt with” and the latter it states “Committal for sentence/to be dealt with”. These documents expressly state “sentence”. The fact that “to be dealt with” is also included as an alternative cannot sensibly be given the meaning (or lack of meaning) that Mr Pons ascribes to it. The answer to Mr Pons’ point that the statement had to be included in the certificate because otherwise “nobody would know about it” rather overlooks that given the statement is given in open court, everyone there (including the defendants’ counsel) would and did know about it.

We have no doubt that had the appellants considered in September 2023 that there was a failure by the Magistrates’ Court to have committed the appellants to the Crown Court for sentence, and/or would have sentenced the defendants themselves if only there were no confiscation proceedings (thus limiting the fine to the maximum of £20,000), then this would have been a central and important point that would have been argued before HHJ Aaronberg KC. It would be plainly relevant to sentence if the fine were capped in law in that way. Given the very extensive evidence on the confiscation proceedings, and the prosecution’s written submissions on sentence which expressly in paragraph 22 thereof referred to the figure of £700,000 in unlawful rental income, and stated that there was no statutory maximum in terms of the fine in the Crown Court in paragraph 24, it was clear that the prosecution did not consider the sentencing judge to be limited to a maximum fine of £20,000. The defence did not consider him to be limited to that maximum either. This is because all parties knew that the District Judge’s powers of sentence were insufficient.

Such a challenge to the accuracy of what the prosecution was submitting at the sentence hearing in terms of the fine being unlimited, would in any event be expected in any case. In this case in particular, part of the reason that the court had oral as well as written submissions on sentence was precisely for that very reason. Towards the end of the hearing on 5 February 2024 the transcript shows at page 93 that the judge explained as follows:

“The only thought that occurs to me is you may want to, if you were making oral submissions, you would each obviously have the chance to jump up and say, well, that is not quite right. So, if something is submitted on, from each side, by the 15th, if you want to pick up on anything that has come from the other side then please do send a follow-up email if you think something has not been represented properly. So, if I say closing submissions by the 15th, both as to sentence and costs. And then any comments in rebuttal by email by, the Monday the following week, the 19th. And then list on the 23rd for sentence, 10am. Allow an hour.” (emphasis added)

We are not therefore persuaded that there was any procedural defect in the way the matter was committed, or what was said at the Magistrates’ Court when the matter was sent to the Crown Court. This is a world away from the kind of important procedural defect that has occurred in other cases such as R v Butt [2023] EWHC Crim 1131 which led to the Crown Court being told a defendant had pleaded guilty at the Magistrates’ Court to two summary offences, when he had not done so. That case also sets out at [64] et seq the following potential questions that arise where there may have been an error in sending or committing a case from the Magistrates’ Court to the Crown Court. These are:

“[64] The following questions potentially arise:

(1)

What power was exercised by the magistrates’ court when sending or committing a case to the Crown Court?

(2)

Was the power exercised erroneously?

(3)

If so, what are the consequences of the procedural error?

(4)

What steps can or should be taken to correct the error?”

Here, however, when one embarks upon that exercise, the answer to (1) is not contentious. The power that was used is explained above and was under sections 70 and 71 of POCA. The answer to (2) is contentious, but we are satisfied that the power was exercised correctly, the necessary statement was made and there was no real procedural error. Even if that were wrong and one then reached question (3), contrary to our conclusion above, there would be no consequences for the parties. This is because both parties conducted the sentencing exercise as though no error had been made. They clearly knew from what was said in the Magistrates’ Court what had occurred.

The first element to this ground which we set out in [27] above is therefore answered in favour of the prosecution and not the appellants. The second element does not therefore arise. It is also not necessary to consider the jurisdiction under section 142 of the Magistrates’ Court Act 1980, which deals with the power of the Magistrates’ Court to re-open cases to rectify mistakes. Although section 142(1A) means that the general power shall not be exercisable in relation to an order if (under (1A)(b)) “the High Court has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the imposition or making of the…order”. Here, there was a determination of a case stated as explained at [2] above. However, we did not have argument on this point which is, in any event in the circumstances of our conclusion, wholly academic.

We consider all the circumstances of this case, including the length of time over which the enforcement notice was ignored, the way the appellants behaved in delaying matters whilst entering into new tenancy agreements and repeating the highly culpable conduct, the very high level of benefit enjoyed as a result, added to the attempts to hide their assets. The powers of the Crown Court were not limited to the powers of the Magistrates’ Court as the matter was committed to the Crown Court for consideration of confiscation and sentence, and would have been committed to the Crown Court for sentence in any event. We are not persuaded that the fines imposed were manifestly excessive as a matter of fairness, which is part of ground 1. In all those circumstances, we dismiss Ground 1.

There are two elements to this single ground. The first is that the judge awarded the prosecution its full costs for both the prosecution and the confiscation proceedings. It is submitted that from the start the appellants said they had no assets, a position which it is said ultimately was the outcome determined by the judge, and this position was only reached after two years of work. It is submitted by Mr Pons that therefore, with one small exception, the prosecution did not succeed; and as a matter of principle, the appellants should not be made to pay costs incurred in the prosecution investigating matters which ultimately led to them conceded that the appellants were correct.

The second is that, in any event, it is said that given the findings made in the confiscation proceedings regarding the amount available to pay the confiscation order, the judge was wrong to make any order for costs against the appellants. This is because he made a nominal order for confiscation against Salem and a modest one against Robinson-Dadoun; yet the costs orders made against each of them were sizeable.

The first element is expressly advanced as a matter of principle. The second element seeks to rely upon the earlier findings in the confiscation proceedings to underpin the submission that it was wrong to make any order against the appellants at all. Mr Pons prays in aid R v Rance [2013] 1 Cr.App.R (S) 123 in which this court (Moses LJ, Keith and Foskett JJ) held that an order for costs in that case should be reduced as it was “excessive in light of the substantial work entailed in bringing confiscation proceedings which were fruitless” - see [31] of that judgment.

The confiscation proceedings commenced in June 2021 and were finally concluded on 14 September 2023. We accept the submissions made by Mr Robb for the prosecution that they “became unusually protracted, involving numerous delays, challenges, applications, and court appearances, as well as correspondence and many section 16 statements from the Respondent’s financial investigator, as well as responses from the Applicants over the course of the next 2 years.” That is an entirely fair summary. It is clear from the sentencing remarks that this delay was almost entirely caused by the appellants.

However, unlike the different factual situation in Rance, consideration of the detailed findings of the judge explained in his sentencing remarks make it clear that there are two very important points which are directly relevant to this ground of appeal. Firstly, there was different and more fulsome evidence available to the court on sentencing (which led to both the fine and the costs orders) about the appellants’ financial means. The judge stated at [88]:

“As I have now found, both defendants are in a position to make very substantial payments and, had their true financial status been declared in the confiscation proceedings, much if not all of the fruitless work would have been avoided.”

He then addressed the correct test for him to apply and continued:

“[89] As has very recently been recognised by the Court of Appeal in R v Wiseman

[2023] EWCA Crim 1363, on an application for costs the court is not required to make precise findings in relation to a defendant’s financial position. What is required is that I must be satisfied that each defendant has the means to pay the costs which it is proposed to order. I am so satisfied.

[90] I reject Mr Pons’ argument that the Council has incurred unnecessary costs and I accept the submissions made in Mr Robb’s written closing remarks. In particular, I am satisfied that it only became apparent to the Council that it could no longer pursue an allegation of sham mortgages once material was served on 7th September 2023.

[91] The very significant costs to the Council of the confiscation and sentencing proceedings have arisen as a direct result of the defendants’ conduct which has vastly increased the costs which would otherwise have been incurred. In those circumstances, it would be wholly wrong for the Council’s tax payers to meet the Council’s costs in these proceedings.” (emphasis added)

It is in our judgment somewhat misplaced to submit, as the appellants do, that the prosecution “did not succeed”. Managing to keep from the prosecution the true state of their financial affairs cannot be properly described as the appellants’ succeeding. When looked at in overall terms, the prosecution was successful. Although a nominal confiscation order was made in respect of Salem, and a modest one in respect of Robinson-Dadoun, the reason for this was the appellants’ behaviour. Firstly, the true position about the extent of the financial means of both appellants was not known about as at the date of making the confiscation order. It was by the time of the sentencing exercise far clearer to the court that both of the appellants were of significant means and were trying to hide that from the court. It was precisely because the position became factually far more clear that the court arrived at a conclusion, which in our judgment is unimpeachable, that they were each of significant financial means. This was part of the exercise leading to the fines. Secondly, the extent of wasted work on the confiscation proceedings was so great because of the way that the defendants obfuscated, delayed and prolonged the process for their own ends.

The judge applied the correct legal principles and as a matter of principle he was entitled to make costs orders against both appellants. He then properly exercised his discretion on the facts as he found them to be, after a very detailed fact-finding exercise, including cross-examination. There is no prospect of the appellants overturning those factual findings, and the attempts to overturn the fines on appeal have failed. The costs orders that he made were those within the range of those reasonably available to him. The costs orders were not wrong in principle and the discretion was exercised correctly. This ground therefore fails.

For the reasons explained above therefore, we grant leave on Ground 4 and refuse leave on the other renewed grounds, namely Grounds 2, 3, 5 and 6. We dismiss the appeal on Ground 1 and dismiss the appeal on Ground 4 too. The appeal therefore is dismissed and the fines imposed on each of the appellants remain undisturbed, as do the costs orders.