Aslam, R v

Proceeds of Crime Act 1995, section 16(5), prevents the Crown from dividing convictions in one set of proceedings between the pre-commencement and post-commencement confiscation regimes. It does not prevent use of the 1995 regime where a pre-commencement count cannot found confiscation, or where the Crown has expressly abandoned reliance on it before the substantive confiscation hearing. The prosecution may decide the counts on which it institutes and maintains confiscation proceedings. Once the 1995 regime validly applies, the court may include a post-commencement course of conduct in fixing the benefit and amount of the order.

The appellant pleaded guilty to offences of dishonesty and asked for further offences to be taken into consideration. Following sentence, the Crown sought a confiscation order in the Crown Court at Snaresbrook.

The original confiscation schedule included one count and one offence taken into consideration that pre-dated 1 November 1995, when the relevant provisions of the Proceeds of Crime Act 1995 came into force. At the confiscation hearing, the Crown abandoned reliance on both matters. Judge Birtles nevertheless made an order for £25,000, with nine months’ imprisonment in default.

The appeal concerned whether section 16(5) deprived the court of jurisdiction to proceed under the 1995 Act despite that abandonment, and whether the order could include benefit from a post-commencement course of conduct.

1. Appeal dismissed. Section 16(5) of the Proceeds of Crime Act 1995 was directed to preventing the Crown from splitting convictions in the same proceedings between the former confiscation regime and the 1995 regime. It barred an order under the 1995 Act only where, when the judge was asked to make that order, a pre-commencement count remained one on which the Crown was seeking, or could still seek, confiscation under the earlier legislation.

2. The Court applied and explained R v Simpson [2004] QB 118. The expression “in respect of which a confiscation order is sought” referred to a case in which the prosecution maintained reliance on the count at the substantive confiscation hearing. The Crown’s express abandonment of the pre-commencement count at that stage removed the jurisdictional obstacle. It was analogous to offering no evidence on a count at the outset of a trial, and was not an abuse of process. The Crown was entitled to choose the counts in respect of which it instituted and maintained confiscation proceedings.

3. The Court agreed with the observations in R v Sekhon [2003] 1 WLR 1655 that a technical procedural failure should deprive the court of jurisdiction only where this was necessary in the interests of justice or there was a real possibility of prejudice to the defendant.

4. It was unnecessary to decide whether an offence taken into consideration, as distinct from a conviction, engaged section 16(5). If it did, the same conclusion followed because the Crown had abandoned reliance on that offence.

5. Having validly proceeded under the 1995 Act, the Crown could rely on the appellant’s post-commencement course of conduct. The order was therefore properly fixed at £25,000.

• Court of Appeal (Criminal Division): dismissed the appeal and upheld the confiscation order under the Proceeds of Crime Act 1995.

• Crown Court at Snaresbrook: Judge Birtles rejected the jurisdictional challenge and made a confiscation order of £25,000, with nine months’ imprisonment in default.