Crown Prosecution Service, R (on the application of) v Cambridge Crown Court

LORD JUSTICE ELIAS: This is an application for judicial review against the decision of HHJ Bate QC in the Cambridge Crown Court. Permission was given by the Single Judge.

The decision complained of is one made on 23 February 2009. The precise nature of that decision is a matter of some debate, as I will indicate in a moment. The effect of the decision following argument which counsel conducted with the judge on that day is that confiscation proceedings that were being taken against the defendant under section 6 of the Proceeds of Crime Act came to an end.

The prosecution submit in this judicial review that the judge erred in the way in which he approached the issue before him. I put it in that rather vague way because of the difficulty of defining quite what the decision was and what the relevant issue was thought to be for consideration by the judge.

The history briefly is this: the defendant, Kaki Wu is of Chinese origin and Australian by nationality. On 30 May 2008, she pleaded guilty to two offences of keeping or managing a brothel, contrary to section 33A of the Sexual Offences Act 1956. The offences concern two brothels and spanned a period of more than four years.

On 30 September 2008, she was sentenced to a total of 15 months' imprisonment and had to pay certain costs. She was later released from prison, but thereafter kept in administrative detention by the Secretary of State for the Home Department pending deportation. She was granted bail from that custody on 29 January 2009. Her bail was subject to two conditions, one of which was that she should not leave the country. On 11 February it seems she did leave the country and went to China, it is thought, and is unlikely to reappear. Meanwhile, however, the court had embarked upon confiscation proceedings under section 6 of the Proceeds of Crime Act.

The timetable set for those proceedings was laid down by the court on 13 July 2008. The proceedings then began on 17 December 2008 and the defendant gave evidence, we are told, on 18 and 19 December. Matters were then adjourned until 8 January when further evidence was given, and there was a further adjournment to 23 February, at which point the defendant did not appear for the resumed hearing.

It is events on that day which are the subject of this judicial review application. Before dealing with them, however, I should briefly set out the relevant legal framework. Under section 6 of the Proceeds of Crime Act the Crown Court must proceed under the section to consider whether a confiscation order should be made if two conditions are satisfied. The first condition is that the defendant is convicted of an offence in proceedings before the Crown Court. The second condition is that the prosecutor asked the court to proceed, or the court believes it is appropriate to do so. I believe in this case the prosecutor in fact asked, but in any event the section 6 proceedings went ahead.

Section 4 then identifies how the court must proceed and the first question it has to ask is whether the defendant has a criminal lifestyle. In this case it was accepted that she did within the statutory definition, and where that occurs then certain assumptions arise under section 10. Those assumptions are made for the purpose of deciding whether the defendant has benefited from general criminal conduct, and deciding what the benefit is. It is not necessary to spell out the assumptions, but they significantly assist the prosecution when it is seeking to obtain confiscation orders under section 6.

Section 6(8) is central to this case. It is as follows:

“The first condition is not satisfied if the defendant absconds (but section 27 may apply).”

The effect of this, as everyone accepts, is that if a defendant is an absconder, at least in circumstances where no proceedings have begun under section 6, then section 6 cannot be invoked by the prosecution, but section 27 may apply.

Section 27 applies if two conditions are satisfied. The first is that the defendant absconds in certain circumstances, one of which is that he or she absconds after being convicted of an offence in proceedings before the Crown Court, which is the case here. The second condition is that the prosecutor applies to the court to proceed under section 27 and (this is in contrast to section 6 where it is "or") and the court believes that it is appropriate to do so. A significant feature of proceedings for a confiscation order under section 27 is that certain sections, which would otherwise apply where section 6 is invoked, do not apply. These include section 10, that is the section dealing with the assumptions.

When the case came before the Crown Court on 23 February the court was faced with the absence of the defendant. The prosecution wanted to proceed. That raised two issues: (1) Could they in principle go ahead? (2) Was it in the circumstances appropriate to do so on that date, in the absence of the defendant? As far as the first and most important issue is concerned, all parties, including the judge, appear to have assumed that the only issue regarding whether they could in principle proceed was whether the defendant could properly be described as a person who had absconded.

For reasons that remain obscure, there was no reference by either counsel or the judge to section 6(8). The parties simply made reference to section 27. They were experienced counsel and an experienced judge, and I think the only reasonable implication is that they were making the assumption that if she was an absconder under section 27, then section 6(8) would necessarily apply too, and the effect would be that the condition under section 6(1) was not satisfied and the proceedings would end.

The argument before the judge therefore focused on whether she could properly be described as an absconder or not. She had, it was common ground, absconded from bail as far as the immigration authorities were concerned, but the question arose whether that constituted an absconding in relation to the Crown Court, and more specifically for the purposes of these proceedings.

The judge considered these matters and concluded that she was someone who had absconded in two ways: she had flown from the immigration law and by leaving England and Wales she had put herself beyond the jurisdiction of the Crown Court in relation to any penal order that it might otherwise have been able to make.

Following that ruling the Crown indicated that it did not wish to pursue an application under section 27, essentially, it appears, because it felt too disadvantaged without the assumptions under section 10 coming into play. Therefore section 27 was never directly an issue before the judge. It would have been if the prosecution had made an application. The judge would then have had to decide whether to accede to it, but he was never placed in that position.

The first question that arises is what was the decision made by the judge? It is plain that the prosecution wished to go ahead. By the end of the hearing it is equally plain that the effect of the judge's ruling, one way or another, was that they were not going ahead. They chose not to do so under section 27, but section 27 could only have arisen because the request to continue proceedings under section 6 had been rejected.

Mr Kennedy Talbot, who has provided great assistance as advocate to the court, submitted to us that in the circumstances the prosecution should be deemed to have abandoned the proceedings under section 6. He says that there never was any formal ruling by the judge that the section 6 proceedings had come to an end. True it is that all parties may have acted on that assumption, but without any such ruling it was open to the prosecution to seek to continue those proceedings in force. They indicated they were not wishing to proceed under section 27, and they have effectively abandoned all proceedings and should not be allowed to reinstate them now.

In my judgment that would be an unrealistic interpretation of what went on before the judge. It was plain that the prosecution wanted the proceedings to continue under section 6, and it is artificial to say that they have abandoned them. Although I accept that the position is not entirely satisfactory, it seems to me that one has to conclude that the judge has implicitly reached the conclusion that the proceedings have to end under section 6. That can only be by virtue of section 6(8).

If that is right, however, then the prosecution say there are two errors in that approach: first, the judge was wrong to say that the defendant absconded; second, even if she had absconded she did so at a point when the proceedings under section 6 were well under way; the finding that she had a criminal lifestyle had been made; that triggered the assumptions under section 10; and she had substantially given her evidence and there was no reason, in those circumstances, to consider that the effect of section 6(8) was essentially to abort the proceedings that had almost in fact come to completion under section 6. That, of course, was not an issue that the judge ever addressed, nor was it argued before him by counsel.

The particular way in which the prosecution have sought to remedy what they see as the wrong ruling by the judge is by way of judicial review. I assume that the reason that was done is because it was assumed that the judge was making some kind of decision under section 27. If that is the case, then section 31 would preclude any appeal by the prosecutor against such a decision. I ought to read section 31, which is as follows:

If the decision had been made under section 27, then plainly subsection (3) prevents any appeal. However, if, as I think must have been the case, the relevant decision was a decision to bring the section 6 proceedings to an end, other than abandonment, then that is a decision that can be appealed under section 31(2). The court is deciding not to make a confiscation order. It is doing so for reasons which the prosecution think are bad reasons, and I see no reason today at all why that should not be appealed in the usual way.

Mr Myerson QC initially submitted that this was a decision made by virtue of section 27, but he eventually resiled from that position and he accepts that provided a decision with respect to section 6 was made - and I have indicated in my judgment implicitly it has - then the proper route is to go by way of appeal. Other matters have been raised, but they do not need to be determined. One is whether, in any event, these proceedings could properly be taken by way of judicial review, or whether they fall within the terms of section 29(3) of the Senior Courts Act 1981, which excludes the jurisdiction of this court in matters "relating to trial on indictment".

Mr Kennedy Talbot put forward powerful arguments as to why that provision was applicable, and that even if there were no appeal that would not confer this court with a right to hear this application by way of judicial review. He relied on an authority in support of that: R (Faithfull) v Ipswich Crown Court [2008] 1 WLR 1636, where, in particular, a passage in the judgment of Richards LJ at paragraph 40 would suggest that there can be no judicial review of a confiscation order, it being part of the sentence.

Mr Myerson indicated that there were some arguments that he would wish to develop to submit that that case was not applicable here. In the circumstances we think that there is no purpose in resolving that issue. We are satisfied that there is an appeal to the Crown Court. In those circumstances it is wrong for this court to hear the matter by way of judicial review where an appropriate appeal mechanism is in place. It follows that some of the more interesting arguments that would have applied had we had jurisdiction, relating to the question of what constitutes someone absconding for the purposes of section 6 and section 27, and whether section 6(8) has the effect of bringing section 6 proceedings to an end when they are already well under way, do not arise for determination.

LORD JUSTICE ELIAS: Can I thank both counsel very much for the submissions.

MR JUSTICE CALVERT SMITH: Could I raise something with Mr Talbot? A brief opportunity (which is all I have had) to look through the textbooks on this general topic did not reveal anything. Is there anything to your knowledge in any well-known textbook on this subject, or any of these topics? I am aware of one, in particular, which is regularly updated.

MR TALBOT: Nothing of which I am aware (inaudible).

MR JUSTICE CALVERT SMITH: That is all I wanted to mention.