Martin Evans KC

Recent Cases

• Gopee v Southwark Crown Court [2023] EWCA Civ 881

  Dismissing G’s appeal against a decision to make a general civil restraint order [GCRO] and the refusal to set it aside, the Court of Appeal considered the circumstances in which the court could decide not to direct an oral hearing or submissions in writing. Neither at common law nor under art.6, ECHR did a litigant have an unfettered right to an oral hearing. Following the expiry of the first order, G had persisted in issuing claims or making applications which were totally without merit. In light of his conduct overall, a new 3-year GCRO was imposed.

• Ahmet v Tatum [2023] 1 WLR 3076 (Ch)

  In Part 2 of PoCA 2002, Parliament had provided a complete and exhaustive code for the resolution of disputed property rights in the context of restraint and confiscation orders in criminal proceedings. Accordingly, proceedings begun in the High Court Chancery Division by a third party claiming a beneficial interest in a property subject to a confiscation order were an abuse of process and were struck out.

• R v Wood (Niki) [2023] 1 WLR 156, [2022] EWCA Crim 1243: The Court of Appeal clarified that an application for reconsideration of the available amount under section 22 of PoCA 2002 does not confine that calculation to a reconsideration of assets held at the time of the “new calculation”; rather, it involves looking at all of the assets held by the defendant that are or have been available in the context of the original confiscation order and in the light of all the evidence available at the time of the “new calculation”.   As such it must take into account what has happened to the assets that formed the basis for the original confiscation order, even if they are no longer held. Instructed by the CPS Proceeds of Crime Enforcement Unit.

• R v Briedis [2023] 1 Cr App R 18, [2022] EWHC 3431 (Admin) per Foster J. In the course of a civil recovery investigation the DPP sought disclosure orders under s.357, PoCA 2002. The High Court considered alternative means of service under CPR r.9.6 in circumstances where there was reason to believe that B was no longer residing at his last known address (and had left the jurisdiction). Instructed on behalf of the DPP.

• Chief Constable of Merseyside v Bennett [2023] 1 Cr App R 10, [20220 EWHC 2533 (Admin): A district judge had erred in finding that he had no jurisdiction under s.298, PoCA to order forfeiture of seized cash where the amount seized was less than the minimum amount that could lawfully be seized, namely £1,000. Section 298 did not impose any condition for the exercise of the power of forfeiture other than the court being satisfied that the cash was recoverable property or was intended for use in unlawful conduct. At the time of the seizure, the officer believed the amount of cash exceeded the statutory minimum; only after the application for forfeiture had been lodged, was the cash counted and discovered to amount to only £980. The lawfulness or otherwise of the earlier seizure did not deprive the court of the power to exercise a separate and distinct power to order forfeiture in respect of which there was no statutory minimum. Instructed on behalf of the Chief Constable.

• NCA v Petrosaudi Oil Services (Venezuela) Ltd [2022] EWHC 920 (Admin): Following a request for mutual assistance made by the US authorities in respect of the forfeiture of funds (circa $300 million) constituting an arbitral award to a Venezuelan company which had allegedly been used as a vehicle for money laundering, the court imposed a prohibition order in respect of funds held in escrow in the Court Funds Office. The requirements of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 had been met and there was a risk of dissipation if the order was not granted. The court also ordered that the funds should be held by a receiver (pursuant to Art. 141I(1) & (2) of the 2005 Order). Instructed by the NCA.

• R v Andrewes [2022] 1 WLR 3878, Supreme Court: Where the offender obtained remuneration from employment obtained by false-representations or non-disclosure (‘CV fraud’), and where, through the performance of those services, value had been given for the remuneration received, it would normally be disproportionate under s.6(5) PoCA to confiscate the entire net earnings. However, it would be proportionate to confiscate the profit from the crime, namely the difference between the higher earnings made as a result of the fraud and the (lower) earning the offender would have received without the fraud. The appeal by the CPS from the decision of the Court of Appeal (see below) was allowed.

• Crown Prosecution Service v Aquila Advisory Ltd [2021] 1 WLR 5666: The Supreme Court decided that Aquila’s right to recover secret profits made by directors in breach of fiduciary duty took precedence over enforcement of the confiscation orders made following their convictions for cheating the revenue. Instructed by Kingsley Napley on behalf of Aquila

• R v Asplin [2021] EWCA Crim 1313: The Court of Appeal clarified the correct approach to the assessment of proportionality and found that where a defendant made a secret profit in breach of fiduciary duty, in the absence of cogent evidence to contrary, the inclusion of salary in the calculation of his benefit was proportionate. Instructed by EMM on behalf of the private prosecutor - DAS Legal Expenses Insurance Company Ltd.

• PDVSA Servicios SA v Clyde & Co LLP [2020] Lloyd's Rep. F.C. 580; [2020] EWHC 2322 (Ch): Under CPR r.19.2(2)(b) joinder of the new party might be ordered to permit the court which was seized of the existing proceedings to which joinder was sought to resolve the issue between the existing party and the new party. An application by PetroSaudi Oil Services (Venezuela) Ltd to join the NCA to proceedings in the Chancery Division for a mandatory payment order was refused because there was no issue between the parties which would make it desirable to join the NCA; a judge in the Chancery Division proceedings could not resolve issues as to the grant and extent of a prohibition order under Part 4A of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 which must be determined in the Queen's Bench Division. Instructed by the NCA

• R v Reynolds (Nicholas) [2020] 1 Cr App R 20: the Court of Appeal provided important guidance as to the purpose and nature of a summing-up of the evidence in the context of a long and complex trial where the evidence was presented electronically and where many of the facts were not in dispute. Instructed by the SFO.

• R (on the application of A, B & C) v Southwark Crown Court [2019] EWHC 3742 (Admin): The Administrative Court dismissed a challenge to notices to produce information issued by the SFO under s357 of POCA; once a disclosure order has been made the investigator may issue notices requiring a person to answer questions, provide information or produce documents as the case may be; a further application is not required before the issue of a fresh notice. Instructed by the SFO

• R v W(G) [2018] 4 WLR 129, Court of Appeal: W was extradited to the UK from Sweden. On appeal by W, the Court of Appeal ruled that, in the context of a continuing offence, the rule of speciality did not preclude the prosecution from adducing evidence of conduct which fell outside the relevant time period to prove the commission of an offence which fell within it. The rule was concerned with offences, not evidence. Instructed by the SFO

Other Notable Cases

• R (River East Supplies Ltd) v Crown Court at Nottingham [2017] 2 Cr. App. R. 27; [2017] 4 W.L.R. 135, Divisional Court: the Strasbourg jurisprudence drew a clear distinction between material that was, and was not, “independent”; the common law privilege against self-incrimination did not extend to material that was “independent” (i.e. pre-existing documents). Instructed by Head of East Midlands Police Legal Services

• R v Harvey [2017] AC 105, [2016] 2 WLR 37, [2016] 1 Cr. App. R. (S.) 60, Supreme Court: Although as a matter of ordinary domestic statutory construction, in deciding the benefit obtained within s.76(4), the VAT paid or accounted for to HMRC was not to be deducted, when making a confiscation order the court should ignore the total amount of VAT for which the offender had accounted to HMRC. To include such VAT in a confiscation order would be disproportionate and a breach of ECHR Protocol 1 art.1. Instructed by CPS

•  R (Rahman) v Local Government Election Court [2017] EWHC 1413: An Election Court finding that Lutfur Rahman (formerly Mayor of Tower Hamlets) was "personally guilty" of electoral offences under the Representation of the People Act 1983 did not violate the presumption of innocence in ECHR art.6(2) where he was unable to establish that there were any parallel criminal proceedings at the time of the decision. Instructed by CPS

• A v DPP [2017] 1 W.L.R. 713; [2017] 1 Cr. App. R. 6: In what is the first time it considered Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 issues, the Court of Appeal ruled that that a challenge to the substantive reasons for the making of an overseas restraint order may be made only in the courts of the issuing state. Instructed by CPS

• Barnes v Eastenders  [2015] A.C. 1; [2014] 2 W.L.R. 1269;  [2014] UKSC 26, Supreme Court: CPS ordered to pay the remuneration and expenses of a receiver appointed following the discharge of a PoCA restraint and receivership order based upon the principle of ‘unjust enrichment’ where to allow E's assets to be taken to pay for B's costs and remuneration would not strike a fair balance between the general interest of the community and the requirements of the protection of E's right to peaceful enjoyment of their possessions and so would be disproportionate. However, to refuse B's application would replace one injustice with another. As there had been a total failure of consideration in relation to B's rights over E's assets, which was fundamental to the basis on which he had agreed to act. B was entitled to recover his proper remuneration and expenses from the CPS because the work done and expenses incurred were at the CPS's request.  Instructed by Peters and Peters on behalf of the Receiver.

• R v Shabir [2008] EWCA Crim 1809: Only case in which the Court of Appeal quashed a confiscation order on the grounds that it was oppressive and an abuse of process; appeared for the Appellant.

Publications

• ‘Corporate Criminal Liability’ (with Amanda Pinto KC): 4th edition Sweet and Maxwell 2021.

• ‘Archbold Criminal pleading and Practice’; contributing editor (since 2006)

• ‘Abuse of Process in Criminal Proceedings’ by Corker, Young and Summers; 3rd edition Butterworths 2008 (contributor)