Success for Martin Evans KC & Fiona Jackson in the Court of Appeal

The Court of Appeal has handed down judgment in R v Haden and others [2024] EWCA Crim 344], a series of ten conjoined appeals by the CPS where confiscation orders were not made because the postponement provisions of section 14, POCA were not complied with.  In the event, the Court allowed the appeals and directed the Crown Court to proceed afresh to hear the confiscation applications, picking up from the point at which the Court had declined to make a confiscation order.

Martin Evans KC and Fiona Jackson were instructed in the Court of Appeal. 

The Court reviewed the authorities on postponing confiscation proceedings, the time limits for doing so and the meaning of “exceptional circumstances”, finding that, taken together, the House of Lords decision in R v Soneji [2005] UKHL 49, [2006] 1 AC 340 and the Supreme Court decision in R v Guraj [2016] UKSC 65; [2017] 1 Cr. App. R(S) 32 represent the source of principle in this area.

The fundamental principle is that the 2002 Act regime for confiscation imposes a duty to act upon the court.  The purpose is to ensure that crime does not pay.  This is achieved by requiring the court to proceed in a certain way in order to compel those who have been convicted of an offence to disgorge any benefit they have gained from the offence or from a criminal lifestyle.  Any procedural provisions are to be construed in this context and with this statutory purpose at the forefront of the analysis.

Specifically:

·         The court is required to conclude the proceedings within 2 years of conviction unless there are exceptional circumstances. If there are, then the court can extend the permitted period for as long as necessary.  This may happen whether the two year period has expired or not, and whether an application was made before expiry or not.  It can happen even if no application has ever been made.

·         The court should take a broad view of what constitutes exceptional circumstances;

·         The purpose of the permitted period is not to protect the interests of the offender, it is to ensure that the court gives appropriate priority to the fulfilment of its duty to act in accordance with s.6.  They are enabling not limiting provisions;

·         Accordingly, compliance with the procedural requirements of s.14 is not a condition precedent to the court retaining jurisdiction to make a confiscation order. Jurisdiction is retained until the proceedings are determined in accordance with s.6;

·         Confiscation proceedings must, of course, be conducted in a way which is fair to the offender.  Non-compliance with the procedural code, if it causes delay and prejudice, may be relevant to the order which the court decides to make.  If the proceedings have become unfair because of delay, in that it has caused some clear prejudice to the offender, the court has potential options as part of its process.

·         With all this in mind, the court should always case-manage confiscation proceedings with a view to their timely determination and should strive to ensure they are completed no later than two years after conviction.

The Court of Appeal overruled Iqbal [2010] 1 WLR 1985 (which had been relied on by the various defendants).