Crown Prosecution Service v Moulden

For confiscation under Proceeds of Crime Act 2002, “proceedings before the Crown Court” in section 6 means proceedings under one indictment. It does not include every matter listed before the sentencing judge on the same occasion.

Accordingly, the transitional rule in article 3(1) of the commencement order does not bring a separate indictment containing only post-commencement offences within the earlier confiscation regime merely because it is sentenced with an indictment containing pre-commencement offences. Separate confiscation orders under the applicable statutory regimes are therefore required. The prosecutor’s appeal right under section 31 of the 2002 Act does not extend to an order made under the earlier Act.

The respondent pleaded guilty to deception offences on two separate indictments. The offences on indictment 006 pre-dated the commencement of the Proceeds of Crime Act 2002; the mortgage offence on indictment 337 post-dated it.

The Crown Court made separate confiscation orders: £3,602.67 under the Criminal Justice Act 1988 and £23,000 under the 2002 Act. The prosecution appealed, contending that the two indictments formed one set of proceedings and that the assumptions under the 1988 Act could therefore be used. The respondent also challenged the prosecution’s right to appeal the 1988 Act order.

The central issue was whether “proceedings before the Crown Court” in section 6 of the 2002 Act encompassed separate indictments dealt with at the same sentencing hearing.

1. The appeal was dismissed. The court held that there was no prosecution right of appeal against the confiscation order made under the Criminal Justice Act 1988. The appeal against the order under the Proceeds of Crime Act 2002 failed on its merits.

2. Section 6 of the 2002 Act refers to proceedings under a single indictment. Although “proceedings” is grammatically plural, it conventionally describes a single criminal action. It does not extend to all matters, however constituted, which happen to be before the Crown Court when sentence is imposed.

3. Article 3(1) of the Proceeds of Crime Act 2002 (Commencement No.5, Transitional Provisions, Savings and Amendment) Order 2003 consequently did not apply the 1988 Act regime to the post-commencement offence on indictment 337. The expression “the offences mentioned in section 6(2)” did not include offences on a separate indictment containing only offences committed on or after 24 March 2003.

4. The judge was therefore correct to make two confiscation orders and to apply the separate statutory framework to each. The pre-commencement indictment could not be combined with the later indictment to satisfy the conditions for the 1988 Act assumptions.

5. Section 31 of the 2002 Act permits a prosecution appeal from a confiscation order made under that Act. It did not create a retrospective prosecution appeal against the distinct order made under the 1988 Act.

• Court of Appeal (Criminal Division): leave was granted, but the prosecution appeal was dismissed. The court held that it had no jurisdiction over the Criminal Justice Act 1988 order and upheld the separate order under the Proceeds of Crime Act 2002.

• Newcastle upon Tyne Crown Court: HHJ Bolton made separate confiscation orders on 2 November 2007, applying the 1988 Act to one indictment and the 2002 Act to the other.