“But it’s not fair!” – procedural error and fairness in confiscation proceedings

April 8, 2020

By Alexandra Sutton 

I recently acted for an individual who pleaded guilty to multiple offences of benefit fraud. It was a fairly standard case of its type – the total value of the fraud was around £20,000, the claims were not fraudulent from the outset and the client was of good character. As with all such cases, the prospect of confiscation proceedings was of significant concern. However, come the date of sentence, the prosecutor did not invite the Judge to postpone confiscation as would usually happen pursuant to s. 14(1)(b) POCA 2002. The prosecutor did not have instructions to pursue confiscation, and in fairness stated as much in open court.

Unfortunately, the CPS had in fact been minded to pursue confiscation and the prosecutor had simply missed that instruction. The prosecutor was instructed to invite the court to remedy this and the case was adjourned for legal argument on the point. Initially, the general understanding of the Judge (and, anecdotally, many others) was that if confiscation was not postponed prior to sentence then proceedings could not be initiated at a later date. However, section 14(11) POCA 2002 states the following:

“A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement.”

It was fair to say that this was a case concerning an “omission” – there was no bad faith, it was simply a slip by the prosecutor. The Prosecution relied on the following cases to support its argument: R v Sekhon and Others [2002] EWCA Crim 2954, 2003 2 Cr App R (S) 38; R  v Soneji & another [2005] 4 All ER 321 and R v Guraj [2017] 4 All ER 848. In general terms, these cases hold that the dominant purpose of POCA is that confiscation is the duty of the court, to which priority must be given. Following Guraj, procedural error should not deprive the court of its jurisdiction, though resulting unfairness may invalidate proceedings. Such unfairness cannot derive purely from the breach and must be of an incurable kind.

That unfairness was the thrust of the defence argument, relying on Guraj along with the analogous principle of “legitimate expectation” in R v Mulla [2004] 1. Cr. App. R. 6. The issue of confiscation had been ventilated in open court at the sentence hearing in the client’s presence – the client had made repayments to the DWP, and the fact that any such debt could be enforced in a civil jurisdiction was considered by all parties. In those circumstances, the Judge accepted my submission that accession to the Prosecution’s argument at that stage would be unfair and that such unfairness could not be cured.

This was a very particular case – in my view it is clear that the “fairness” principle in Guraj is more restrictive than a general “interests of justice” exception, for example. However, whether prosecuting or defending it is important to remember that simple mistake or omission will not always invalidate confiscation proceedings.

Alexandra was called to the Bar in 2017 and became a tenant of Exchange Chambers in October 2018 following the successful completion of her pupillage. She has since developed a thriving criminal and regulatory practice, acting for both prosecution and defence in a variety of matters.