Ward, R v

A decision refusing to reduce a confiscation order under section 23 of the Proceeds of Crime Act 2002 is not a “sentence” from which a defendant may appeal under the Criminal Appeal Act 1968. The statutory definition includes variation orders under specified provisions, but excludes variations under section 23.

Further, section 23 cannot be used to reopen findings made in the original confiscation proceedings. An application which is, in substance, an attempt to relitigate those findings is an abuse of process.

The applicant received sentences totalling three years’ imprisonment for offences under the Proceeds of Crime Act 2002. In October 2007, the Crown Court at Leeds made a confiscation order for £287,398.42. His appeal against that order was dismissed in December 2008.

He then applied to the Crown Court under section 23 of the 2002 Act to reduce the order. Judge Ibbotson dismissed the application on 26 June 2009. The applicant sought leave to appeal, contending that the Court of Appeal could hear an appeal from the refusal and that the judge had wrongly treated the application as an attempt to reopen the original asset findings.

1. Appeal dismissed. Although leave to appeal was granted, the court had no jurisdiction to entertain an appeal from the refusal to vary the confiscation order under section 23 of the Proceeds of Crime Act 2002.

2. Section 9 of the Criminal Appeal Act 1968 permits an appeal against a sentence. Section 50(1)(cb) expressly extends “sentence” to an order varying a confiscation order under sections 21, 22 or 29 of the 2002 Act, but not otherwise. A variation under section 23 is therefore excluded. The applicant could not avoid that exclusion by characterising the appeal as one from a refusal to vary rather than from a varying order: that distinction would produce an irrational result.

3. The statutory scheme supported that construction. A defendant whose original confiscation order has already been appealed may apply to the Crown Court for a favourable variation if section 23 is satisfied. Parliament was entitled to confine that further opportunity to the Crown Court rather than provide a further appeal.

4. In any event, the application failed on its merits. Following R v Younis [2009] 2 Cr App R 34, an application under section 23 is an abuse of process where it is, in substance, an attempt to relitigate an issue decided against the defendant in the original confiscation proceedings. Judge Ibbotson was entitled to conclude that this application sought to reopen his earlier rulings about the applicant’s assets, rather than show a post-order reduction in the value of an identified asset.

5. The court also declined to certify a point of law of general public importance. The jurisdiction issue was academic because the application would in any event have been dismissed as an abuse of process.

• Court of Appeal (Criminal Division): Leave to appeal was granted, but the appeal from the refusal of a section 23 application was dismissed for want of jurisdiction. The court also held that the application was, in any event, an abuse of process.

• Crown Court at Leeds: On 26 June 2009, Judge Ibbotson dismissed the defendant’s application under section 23 of the Proceeds of Crime Act 2002 to reduce the confiscation order.

• Crown Court at Leeds: On 16 October 2007, Judge Ibbotson made a confiscation order for £287,398.42. An appeal against that order was dismissed by the full Court of Appeal on 11 December 2008.