Hockey, R v

Where confiscation proceedings are properly triggered under Proceeds of Crime Act 2002, the Crown Court must make a confiscation order once benefit and the recoverable amount are established, unless the limited exception in section 6(6) applies. A judge cannot avoid that duty by indefinitely adjourning the proceedings with no intention of restoring them.

Potential commercial consequences for a victim lender do not justify refusing an otherwise mandatory order. Such an adjournment is, in substance, a decision not to make an order and is appealable by the prosecutor. The Court of Appeal may itself make the order where the material facts and available assets are undisputed.

The respondent pleaded guilty to mortgage-fraud offences involving false employment and income documents. Two lenders advanced mortgage funds, and a third proposed advance was the subject of an attempt. The lenders continued the mortgages after the frauds were discovered and received the contractual payments.

At the Crown Court, the parties agreed that the respondent's benefit was £298,457 and that his realisable assets exceeded that sum. The sentencing judge declined to make a confiscation order, instead adjourning the proceedings indefinitely because of concern for the lenders' interests. The Crown appealed under Proceeds of Crime Act 2002. The central issues were whether the judge's ruling was appealable and whether the Court of Appeal should make the order itself.

1. Appeal allowed. The judge's purported indefinite adjournment, coupled with his stated intention never to restore the application, was plainly a decision not to make a confiscation order. It was therefore appealable under section 31(2) of the Proceeds of Crime Act 2002, and the court had power under section 32(2) to determine the matter itself.

2. Section 6 establishes a mandatory confiscation framework once the statutory conditions are met and the prosecutor asks the court to proceed. The only relevant modification was section 6(6), which made the duty a power if the court believed that a victim had begun, or intended to begin, civil proceedings for the relevant loss. The judge expressly did not hold that belief.

3. The court applied the mandatory approach explained in R v Nield [2007] EWCA Crim 993 and affirmed in R v Brack and Brack [2007] EWCA Crim 1205. The prosecutor had an unqualified right to invoke section 6 in the circumstances. The court also reaffirmed that a decision whether to prosecute is for the prosecutor, subject to the court's abuse-of-process jurisdiction; there was no abuse here.

4. The lenders' possible commercial loss if their security had to be realised was speculative and immaterial. Their interests could not permit the judge to frustrate Parliament's clear statutory direction. As the benefit was agreed and realisable assets substantially exceeded it, the court made a confiscation order for £298,457 rather than remitting the case.

5. The respondent was allowed six months to pay. The court imposed three years' imprisonment in default.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 1577, allowed the prosecutor's appeal under the Proceeds of Crime Act 2002 and made the confiscation order itself.
• Crown Court: On 17 November 2006, imposed sentence but declined to make a confiscation order and purported to adjourn the confiscation proceedings indefinitely.
• Bristol Magistrates' Court: On 21 March 2006, the respondent pleaded guilty and was committed to the Crown Court for sentence.