Simpson v R.

A technical defect in a confiscation notice under the Criminal Justice Act 1988 does not deprive the Crown Court of jurisdiction where the notice has achieved its essential purpose. The Court of Appeal (Criminal Division) may, cautiously, decline to follow one of its own criminal decisions where it was decided per incuriam or otherwise irregularly.

For confiscation, money received from the proceeds of a joint fraud is obtained as a result of or in connection with the offence, despite a private arrangement concerning its use. Once the prosecution proves benefit, the defendant bears the civil burden of showing that the amount realisable is lower.

The appellant pleaded guilty to VAT fraud, false-document and cheating-the-public-revenue offences. After sentencing, the Maidstone Crown Court made a confiscation order for £209,351.34, with imprisonment in default.

He appealed on jurisdictional grounds, contending that the transitional provisions governing the 1995 amendments and defects in the prosecution notice prevented the order. He also challenged the inclusion of £115,000 in his benefit and the judge’s conclusion that his realisable assets matched the benefit figure.

The central issues were whether the notice defect deprived the Crown Court of jurisdiction and whether the benefit and realisable-assets findings were open to the judge.

1. Appeal dismissed. The five-judge court held that the jurisdictional objections failed and that the confiscation order was correctly assessed.

2. Section 16(5) of the Proceeds of Crime Act 1995 was construed as applying only to offences for which a confiscation order was or could be sought. A contrary construction would create the irrational result that conviction of an unrelated pre-commencement count prevented confiscation based on post-commencement offending. In any event, the evidence established that the relevant offence was committed after 1 November 1995.

3. The court endorsed Sekhon [2002] EWCA Crim 2954. It held that R v Palmer [2002] EWCA Crim 2202 had misunderstood and misapplied the law, having been decided without relevant authorities and in the face of conflicting Court of Appeal authority. Rules of precedent promote certainty, but the Criminal Division retains a residual and cautiously exercised discretion to treat an earlier erroneous decision as non-binding, particularly where it would otherwise create an unjustified technical defence.

4. Accordingly, any deficiencies in the confiscation notice did not remove the trial judge’s jurisdiction. The notice had initiated the confiscation process, and technical failures of its form did not justify quashing an otherwise proper order.

5. The £115,000 transferred by the appellant’s co-offender was part of the proceeds of their joint fraud. The appellant obtained it in connection with the offence within section 71(4) of the Criminal Justice Act 1988. A private arrangement that he would invest or later repay some of it did not alter that conclusion.

6. The prosecution bore the burden of proving benefit. Once benefit was proved, the appellant had to establish on the balance of probabilities that the amount realisable was lower. The judge was entitled to find that he had not made full disclosure and had not disproved his equitable interest in the matrimonial home or the availability of other assets. The full benefit figure was therefore recoverable.

The court certified a question concerning the jurisdictional effect of non-compliance with section 72 of the Criminal Justice Act 1988, but refused leave to appeal further.

• Court of Appeal (Criminal Division) — dismissed the appeal: [2003] EWCA Crim 1499. It certified a question concerning section 72 of the Criminal Justice Act 1988 but refused leave to appeal further.
• Maidstone Crown Court (HHJ Balston) — following the appellant’s guilty pleas and sentence, made a confiscation order on 1 February 2002 for £209,351.34.