Crown Prosecution Service v Moulden

For confiscation purposes, “proceedings before the Crown Court” in section 6 of the Proceeds of Crime Act 2002 means proceedings on a single indictment. It does not encompass every matter listed before the court for sentence on the same occasion.

Accordingly, the transitional exclusion in article 3(1) of the 2003 Order does not bring a separate indictment containing only post-commencement offences within the earlier confiscation regime. A prosecutor’s appeal right under section 31 of the 2002 Act does not extend to a confiscation order made under the Criminal Justice Act 1988.

The respondent pleaded guilty to deception offences on two indictments. The credit-card offences were committed before 24 March 2003 and the mortgage offence was committed after that date. The indictments could not properly have been joined, although sentence and confiscation were considered on the same occasions.

The Crown Court made separate confiscation orders: one under the Criminal Justice Act 1988 and one under the Proceeds of Crime Act 2002. The Crown Prosecution Service appealed, contending that the matters comprised one set of proceedings, so that the 1988 Act assumptions applied to both. The central issues were the meaning of “proceedings” and whether the prosecution could appeal the 1988 Act order.

1. Appeal dismissed. The court held that the prosecution had no statutory right to appeal the confiscation order made under the Criminal Justice Act 1988. Section 31(1) of the Proceeds of Crime Act 2002 permits an appeal from a confiscation order made under the 2002 Act; it does not create a retrospective appeal right in respect of an order under the 1988 Act.

2. The court agreed with the judge’s construction of section 6 of the 2002 Act. “Proceedings before the Crown Court” means proceedings on a single indictment. The expression describes a single criminal action and does not extend to all matters which happen to be before the sentencing court on a particular date.

3. It followed that the offences on the separate post-commencement indictment were not among the offences mentioned in section 6(2) for the purposes of article 3(1) of the Proceeds of Crime Act 2002 (Commencement No.5, Transitional Provisions, Savings and Amendment) Order 2003. Their presence at a joint sentencing hearing could not subject them to the 1988 Act regime.

4. The judge therefore correctly made two confiscation orders and applied the appropriate statutory test to each indictment. The appeal concerning the 2002 Act order failed and was dismissed.

• Court of Appeal (Criminal Division) In [2008] EWCA Crim 2648, the court held that there was no prosecution appeal right in respect of the 1988 Act order and dismissed the appeal against the 2002 Act order.
• Crown Court at Newcastle upon Tyne On 2 November 2007, HHJ Bolton made separate confiscation orders under the Criminal Justice Act 1988 and the Proceeds of Crime Act 2002.