Where Crime and Civil Law Meet: Forfeiture, Assets and Remedies.

The Court of Appeal issued a judgment in Strong and Vale [2020] EWCA Crim 1455 at the end of last year and while readers interested in pursuing or defending forfeiture proceedings in the criminal courts may have missed that ruling as the Christmas lockdown approached, it is well worth visit. He has it all: a defendant who would have won £2million who quantifies his available assets at £37, several clear and new court decisions, and Judge Edis [as he was then] casually using “crampedto describe the trial judge’s decision [which had this commentator, at least, scrambling for a dictionary].

The defendant was found guilty of fraud with a benefit to him of at least £680,000. The main assets available, as far as police and prosecutors could tell, were £612,000 and were the marital home held in her ex’s name. -wife and a bank account in the name of his ex-mother-in-law, with his ex-wife as signatory. The trial judge held a hearing under section 10A of the Proceeds of Crime Act 2002 [“POCA”]the provision which determines the share held in the property which will bind at the stage of execution, provided that those who may have an interest [“the interested party”] have the chance to participate in the Crown Court hearing. Neither the accused nor his ex-wife testified at the forfeiture hearing, although they were both represented. The Judge, in a cramped [short] decision, found that the defendant owned half of the house and owned the entire bank account. The defendant and his ex-wife appealed, the latter seeking to produce new evidence and alleging the incompetence of his lawyer at the Crown Court.

The Court of Appeal made many important decisions and observations:

  1. Given the reverse of the defendant’s burden and his failure to testify, the confiscation order should not have been limited to the disputed assets, but could have been [at least] for the highest amount of £680,000. The implication here was that judges and prosecutors should not confuse Section 10A proceedings with the basics of the POCA forfeiture regime. [5].
  2. The Supreme Court’s decision in R vs. Hilton [2020] 1 WLR 2945 should not be construed as limiting Crown Court hearings under Section 10A to simple cases [11].
  3. The Court noted the different avenues of appeal for a defendant [section 9 of the Criminal Appeal Act 1968, as defined by section 50 of the same Act] and the person concerned [section 37 of POCA], and the various tests; “manifestly excessive or erroneous in principlefor the defendant andserious risk of injustice» for the interested party [9 and 10].
  4. There is no adverse inference under section 35 of the Criminal Justice and Public Order Act 1984 arising from silence in forfeiture proceedings, but the outcome will often be determined by the reversal POCA’s burden of proof on the defendant. [The judgment refers to this as the “Criminal Procedure and Public Order Act 1994”, even Homer nods] [16].
  5. The interested party is not a criminal litigant and therefore a trial judge must apply certain aspects of the civil law; the prosecution bears the burden of proof to the civil standard, a failure of the person concerned to testify has the significance at common law described in article Perst vs. Petrodel [2013] AC 415, and although the statutory provisions regarding the production of fresh evidence before the Court of Appeal are in identical terms, they will not necessarily achieve the same result since the civil law takes a different approach [Ladd v Marshall [1954] 1 WLR 1489]and because in civil law an incompetent defense attorney can be sued [13 to 16].

For the jaded reader of appeal judgments, this case is a breath of fresh air. At a time when the Court of Appeal tends to retreat into factual complexities, this judgment addresses and resolves many legal principles in clear and straightforward terms. Overall, this judgment, while far from exhaustive, is worth reading.

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