Geoffrey Payne, barrister, 25 Bedford Row:
The Proceeds of Crime Act 2002 (POCA) deals with the making and enforcement of confiscation orders. It is draconian. It requires information to be provided by the defendant, it imposes an evidential burden upon them and it provides for a range of far-reaching assumptions as to the provenance of their property to be made against them. As if those hurdles were not difficult enough for proceeds of crime lawyers, the situation is made more difficult if the defendant has absconded.
In this post, Geoffrey Payne looks at a recent case involving an absconding defendant in a case concerning a confiscation order under the Proceeds of Crime Act 2002.
R v Okedare [2014] EWCA Crim 228 and [2014] EWCA Crim 1173
R v Okedare [2014] EWCA Crim 228 and [2014] EWCA Crim 1173 concerned an appeal made by a defendant who had absconded before his plea and case management hearing, was tried in his absence and made the subject of a confiscation order.
There were two questions:
- The first was whether the appellant, as an absconder, could appeal against the order at all.
- The second was, if he could, under what route within POCA could a confiscation order could be made against him.
The facts were as follows. The confiscation order was made under section 6 of POCA, which requires a court to make an order after assessing two things:
- The amount by which the offender has benefitted from crime.
- The realisable property that the offender has.
The court will then order the offender to make a payment of the lower of the two amounts by way of a confiscation order. That was what the judge did in this case.
The use of section 6 by the court was surprising because section 6(8) makes it plain that first condition precedent for making an order is not satisfied if the defendant absconds (this was the offender’s first ground of appeal against the decision imposing a confiscation order).
Dealing with absconders: sections 27 and 28 of POCA
There are two sections of POCA that deal with absconders: sections 27 and 28. They provide for the making of confiscation orders against absent defendants but with additional safeguards that section 6 does not provide. The first is to relieve the defendant from the obligation of providing a response to the court. The second is to displace the statutory assumptions. The third concerns what occurs if the defendant is apprehended. The fourth applies to section 28 only and requires the prosecution to wait two years before proceeding.
The offender’s defence (both in the Crown Court and on appeal) was that neither section could apply to the particular facts of his case:
- Section 27 requires the act of absconding to have occurred post-conviction. In this case, it occurred well beforehand: at the plea and case management hearing.
- As for section 28, the header to that section implied that it concerned only a defendant who is “neither convicted nor acquitted”. The appellant was convicted so it was argued that this section could not apply either.
Overall, it was submitted that there was a lacuna in POCA and it was for Parliament to resolve it. In the context of a penal statute with far-reaching consequences the interpretation should be very strict and any doubt should be resolved in favour of the defence.
The appeal hearings in the Court of Appeal
The first appeal hearing concerned whether an absconder should have the right to appeal at all (Okedare [2014] EWCA Crim 228). The Court of Appeal decided that they should. A person does not give up their right to appeal because they have absconded. Most defendants would want to appeal if there was little to lose and the full court or single judge is entitled (but not bound) to conclude that lawyers have an actual or implied authority to appeal on behalf of absconders. Cases where the single judge would conclude that there is no authority are likely to be rare. Even where there are no instructions, the court may wish to intervene in the interests of justice such as where the court below lacked jurisdiction or a sentence was obviously wrong in law. There is no clear dividing line but appeals based on the exercise of a discretion are likely to fall the wrong side of it.
The second hearing on 15 May 2014 (Okedare [2014] EWCA Crim 1173) concerned the confiscation order itself. It was argued on behalf of the appellant that no order should have been made at all because the judge had no power to do so. Subsection 6(8) of POCA specifically stops the court from acting under section 6 where someone has absconded. The Court of Appeal agreed.
The Court of Appeal was, however unwilling to find that someone in the position of the appellant should not be the subject of confiscation proceedings at all. It ruled that, giving effect to the intention of Parliament, section 28 applied. There was no specific wording in POCA to prevent it (although there were a number of indicators that this was not what Parliament intended). It did, however, certify a question for the Supreme Court.
Because of the breach of two safeguards required by section 28 (but not section 6), the confiscation order was quashed and the matter remitted to the Crown Court. The argument was that the prosecution should have made greater efforts to find the appellant and, secondly, the court should have allowed the appellant’s partner to be heard because of the effect that the confiscation order imposed would have had on her. The failure to do either was unfair. The Court of Appeal agreed.
Practical implications
This case has two implications in practice.
- Firstly, it allows legal representatives to launch appeals even in the absence of their clients providing that they have actual or implied authority or where, in any event, the court may wish to intervene in the public interest. It is, however, incumbent upon them to notify the Registrar of such. This applies to all cases, not only confiscation ones.
- Secondly, when dealing with confiscation and absconders, the prosecution must wait a period of two years from the date of the absconding before proceeding. It must follow strictly the terms of section 28 of POCA. That means making all reasonable attempts to find the defendant and to allow anyone potentially affected by the order to have their say. The result is a much better one for absconded defendants than was the position before in this case.