[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Criminal Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> AP U Ltd v Crown Prosecution Service & Anor [2007] EWCA Crim 3128 (20 December 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/3128.html Cite as: [2007] EWCA Crim 3128 |
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
(CRIMINAL DIVISION)
Strand, London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE AIKENS
and
MR JUSTICE GRIGSON
____________________
AP U LIMITED |
Appellant |
|
- v - |
||
CROWN PROSECUTION SERVICE REVENUE & CUSTOMS PROSECUTION OFFICE |
Respondents |
____________________
John Lofthouse (instructed by the Crown Prosecution Service, Special Crime Division)
Andrew Bird (instructed by the Revenue and Customs Prosecution Office) for the Crown
Paul Downes, Peter De Verneuil Smith & Helen Wolstenholme for the appellant U LTD
David Farrer, QC and Sarah Moore (instructed by the Treasury Solicitor) for the Ministry of Justice and the Home Office (intervening)
John Lofthouse instructed by the Organised Crime Division
Hearing dates : 31stst October 2007
____________________
Crown Copyright ©
Lord Justice Latham:
Generally
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one should be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"But an exception to a restraint order must not make provision for any legal expenses which
(a) relate to an offence which falls within sub-section (5), and
(b) are incurred by the defendant or by a recipient of recipient of a tainted gift."
"(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law .
(3) Everyone charged with a criminal offence has the following minimum rights:
..
(c) To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
"
"31. In Mr Perry's helpful submissions on behalf of the Customs and Excise he began by inviting us to look at the development of the statutory regime. Prior to the 2002 Act the Criminal Justice Act 1988 gave the High Court power to make a restraint order on the application of a prosecutor. The relevant provisions are in sections 76 to 79 of the 1988 Act. The procedure was governed by CPR Part 50, Sch 1, RSC Ord 115 and Practice Direction 115. There were almost identical provisions in the Drug Trafficking Act 1994: see sections 25 to 29. Both section 82 of the 1988 Act and section 31 of the 1994 Act require the court to exercise its power to make a restraint order with a view to maintaining the value of realisable property so as to satisfy any subsequent confiscation orders. The legislative intention was emphasised by Lord Donaldson of Lymington MR in In re Peters [1988] QB 871, 874 D and by Simon Brown LJ in Re Restraint Order Sale of Assets 2001 WLR 473, 479D.
32. Under the 1988 and 1994 Acts a defendant was permitted to draw sums from funds subject to a restraint order to pay for legal representation. This was, however, subject to the legislative steer towards preserving the assets to satisfy a confiscation order. However the reality was that unnecessary expenditure on legal fees was seriously diminishing the restrained assets: see the Performance and Innovation Unit's report of June 2000 entitled "Recovering the Proceeds of Crime". Parliament's response was to introduce the Proceeds of Crime Act 2002, an extremely complex and comprehensive piece of legislation in 12 Parts run into 462 sections and 12 Schedules.
33. Amongst many changes, the 2002 Act introduced three that are of particular significance to the present appeal. First, the ability to make a restraint order is moved back in time to the commencement of a criminal investigation. Previously the defendant had to be charged or at least there had to be a settled intention that he would be charged. Second there is a restriction as regard expenditure on legal expenses, and third, public funding becomes available.
The legislative steer is to be found in Section 69(2) of the 2002 Act, which provides:
"the powers [conferred by section 412, 60 and section 62 to 670]
(a) must be exercised with a view to the value for the time being of realisable property being made available (by the property's realisation) for satisfying any confiscation order that has been made or may be made against the defendant;
(b) must be exercised in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property;
(c) must be exercised without taking account of any obligation that a defendant or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any confiscation order which has been or may be made against the defendant;
(d) may be exercised in respect of a debt owed by the Crown."
34. This steer, he points out is stronger than under the previous legislation. He also referred us to the words of Lord Woolf CJ in R v- Sekhon [2003] 1WLR 1655, 1658, para 1:
"One of the most successful weapons which can be used to discourage offences that are committed in order to enrich the offenders is to ensure that if the offenders are brought to justice, any profit which they have made from their offending is confiscated. It is therefore not surprising that Parliament has repeatedly enacted legislation designed to enable the courts to confiscate the proceeds of crime."
"
The appellant was charged with aiding and abetting the wilful misconduct of a person in his office as a constable, and one count of conspiracy to supply cannabis. He pleaded guilty to one count of aiding and abetting, and to the conspiracy count. The offences were said to have been committed between January and March 2004. A restraint order was made on the 3rd September 2004. The appellant was sentenced on the 29th October 2004 when confiscation proceedings were initiated. At that stage the appellant was paying his lawyers privately. In 2005, he applied to the Legal Services Commission for a representation order for the confiscation proceedings, which was granted on the 7th November 2005; that was transferred to his present solicitors in 2006.
"I would find, as a fact, that it is more likely than not that Mr P will not be able to find counsel of the necessary skill and experience to represent him effectively if that counsel is expected to be paid from public funds by a graduated fee of £178 and some pence per day.
Putting it bluntly; if he must rely on public funding he would not be adequately represented. That is, not adequately represented unless he is able to pay for his own representation because Mr P I am told, is happy, indeed, anxious, to pay his own legal fees and, hence, the application that I amend the restraint order to permit him to do so.
The answer to the application is, indeed, that I cannot do so. That is because of section 41."
"It is a notorious fact that professional and habitual criminals frequently take steps to conceal their profits from crime. Effective but fair powers of confiscating the proceeds of a crime are therefore essential. The provisions of the 1988 Act are aimed at depriving such offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to deter the commission of further offences and to reduce the profits available to fund further criminal enterprises. These objectives reflect not only national but also international policy."
"The Act is designed essentially to impoverish defendants, not to enrich the Crown."
"A confiscation order:
i. Is a penalty, and is a measure to which Article I of Protocol 1 is applicable;
ii. It is designed to deter those who consider embarking upon criminal conduct;
iii. It is designed to deprive a person of profits received from criminal conduct and to remove the value of the proceeds received from criminal conduct for possible future use in criminal conduct;
iv. It is designed essentially to impoverish defendants not to enrich the Crown."
"The question the court is unable to answer, and as to which it is in some doubt, is whether there may be some deserving cases where a person is restrained from using all his assets on the one hand and on the other he is for some reason unable to obtain a public funding certificate. As we have said, the question was not raised before the judge for there were no findings of fact about it. In any event the answer to this question does not in our view inform the question of construction."
"69. There must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The means chosen to cure the social mischief must be appropriate and not disproportionate in its adverse impact.
70. In approaching this issue courts should bear in mind that theirs is a reviewing role. Parliament is charged with the primary responsibility of deciding whether the means chosen to deal with the social problem is necessary and appropriate. Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament. The possible existence of alternative solutions does not in itself render the contested legislation unjustified: see The Rent Act case of Mellacher v- Austria (1989) 12 EHRR 391, 411, para 53. The Court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation is concerned with matters of broad social policy the less ready will be a court to intervene."
"44. When reviewing the legislative provisions pursuant to its obligations under the Human Rights Act 1998, the court accords Parliament a discretionary area of judgment, which is the domestic counterpart of the margin of appreciation accorded at the international level, by the Strasburg Court to the state. The extent or scope of that discretionary area of judgment depends on the circumstances, the subject matter, and the background: cf, in relation to the margin of appreciation Petrovic -v- Austria 33 EHRR 307, para 38 and STEC v- United Kingdom 12 Apr 2006, para 52. Here, there are factors telling in different directions.
45. On the one hand a wide margin of appreciation or discretionary area of judgement is usually allowed in relation to matters of social or economic policy ."
U Ltd