West Law Report

Confiscation proceedings in a single indictment

Posted in Times Law Report by mrkooenglish on December 1, 2008

From The Times
November 26, 2008
Confiscation proceedings in a single indictment

Court of Appeal, Criminal Division

Published November 26, 2008

Regina v Moulden

Before Lord Justice Pill, Mr Justice Jack and Judge Rogers, QC

Judgment November 11, 2008

The words “proceedings before the crown court” in section 6(2)(a) of the Proceeds of Crime Act 2002 meant proceedings under a single indictment. The expression did not cover everything, in whatever form, before the court on the date when sentence was to be imposed.

The Court of Appeal, Criminal Division, so held when dismissing an appeal by the Crown, under section 31(1) of the 2002 Act against two confiscation orders, one under the Criminal Justice Act 1988 for £3,602.67 and one under the 2002 Act for £23,000, made on September 6, 2007, by Judge Bolton at Newcastle upon Tyne Crown Court against Leanne Moulden who had pleaded guilty, on July 18, 2007, to two counts of attempting to obtain, and one of obtaining a service by deception in 2001 in one indictment and to one count of obtaining services by deception, on December 14, 2003, in a second indictment.

Mr Christopher Knox for the Crown; Miss Katharine Bex, assigned by the Registrar of Criminal Appeals, for the defendant.

LORD JUSTICE PILL, giving the reserved judgment of the court, said that counsel for the Crown had submitted to the sentencing judge that, for the purpose of the legislation, there was a single set of proceedings before her, notwithstanding the presence of two indictments; the first where the offences had been committed before the 2002 Act came into force on March 24, 2003 and the second where the offences had been committed after that date.

Accordingly, the 1988 Act, including the assumptions in section 72AA(4), as inserted by section 2 of the Proceeds of Crime Act 1995, applied and could be used to assess the defendant’s benefit. That would have led to a conclusion that she had benefited to the extent of £524,200.58.

Because some of the offences to be dealt with were committed before March 24, 2003, the effect of article 3(1) of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order (SI 2003 No 333), the Crown submitted, was that all the offences dealt with on September 6, 2007, were subject to the regime in the 1988 Act, including section 72AA.

For the defendant, it was contended that where there were two indictments there were two proceedings for the purposes of section 6(2) of the 2002 Act and the relevant offences for the purposes of article 3 did not include the offence in the second indictment.

The judge ruled that the two indictments reflected two separate sets of proceedings so that the two frameworks applied.

Their Lordships agreed with that ruling and also with the defendant’s submission that a confiscation order in section 31 of the 2002 Act meant a confiscation order made under the 2002 Act; section 31 did not retrospectively create a prosecution right of appeal against an order under the 1988 Act.

Solicitors: Crown Prosecution Service, Newcastle upon Tyne.

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