Update on Barnet vs Hamid Kamyab - [2021] EWCA Crim 1170

In NAPE’s April 2021 newsletter, we reported on the case of Mr Kamyab ([2021] EWCA Crim 543), who converted a 5 bedroom house to a 9 bedroom HMO without permission and failed to comply with a 2013 enforcement notice requiring cessation of the use. Mr Kamyab was convicted and a POCA confiscation order was made in the grand sum of £58, this being the rental income for the single day for which the summons had been issued rather than the rent for the several years that the property had been rented out.  

The Court of Appeal overturned the confiscation order amount, concluding that the offence was not a single day offence, almost irrespective of the drafting of the summons, and that the confiscation order should therefore apply to the whole period during which Mr Kamyab was in non-compliance.

Unusually, for various reasons set out in our article, the learned members of the Court of Appeal faced the unenviable task, normally borne by Crown Court judges, of hearing detailed financial and oral evidence as to the benefit Mr Kamyab had received and his available assets. It was clearly an unpalatable task and one they made clear they would not want to repeat. But it was one to which they rose on 27 July. And if Mr Kamyab thought he was in for an easy ride, he was sorely mistaken.

The numbers at any particular confiscation hearing are of limited interest to anyone not involved in the case so we won’t go into them. But there were two points of general interest. Firstly, Mr Kamyab argued that he paid all the rent to his bank so that it was not benefit to him. The Court of Appeal judges recorded that they did not believe him and reminded us of the burden of proof. It was Barnet’s task to demonstrate benefit on the “balance of probabilities”. They had done so and Mr Kamyab had failed to show otherwise. Barnet’s calculations won.

Secondly, Mr Kamyab argued that the offence ended when the 9 bedroom HMO had in fact become a 6 bedroom HMO in 2015. The court preferred Barnet’s argument that (a) it wasn’t a 6 bedroom HMO because it had some self-contained flats and (b) even if it was a 6 bedroom HMO, that was development for which there was no permission because the property had not been returned to C3 use first and the claimed PD right did not exist due to Article 3(5) of the GPDO anyway.

The second task approached by the court was determining the amount of Mr Kamyab’s available assets. Readers will recall that the POCA confiscation is limited to the higher of the benefit obtained or the assets available to pay the order. The burden of proof was on Mr Kamyab to demonstrate that he had no assets. He failed because the court found he was not telling the truth. Key to their doubts was the lack of evidence of any payments to the bank and the evidence of some £250,000 paid to his father instead.

The outcome was a confiscation order raised from £58 to £499,363. Ouch!