Spearing, R v

A defendant who absconds is not thereby entitled to prevent or indefinitely postpone confiscation proceedings. Criminal Justice Act 1988 proceedings under Part 6 contain no prohibition on a Crown Court proceeding in the defendant’s absence. By analogy with the common-law consequence of absconding from trial, a defendant who leaves a legal representative without instructions may be treated as having waived the ability to insist on representation for the confiscation hearing.

The court must nevertheless act fairly. It may properly proceed where the benefit assessment is straightforward, the evidence has been served, and the defendant retains the statutory opportunity to seek a variation of the order.

The applicant had been convicted in his absence of offences concerning fraudulent land certificates, disposal and concealment of property, and false instruments. He then failed to attend confiscation proceedings under Part 6 of the Criminal Justice Act 1988. The Crown Court at Ipswich made a confiscation order of £1,873,870.

After his arrest and sentencing, the applicant renewed an application for leave to appeal against the confiscation order. He contended that the judge should have postponed the confiscation hearing until he was apprehended. The central issue was whether an absent and absconding defendant could require the Crown Court to defer confiscation proceedings.

1. The renewed application for leave to appeal was refused. The Crown Court had been entitled to make the confiscation order in the applicant’s absence.

2. Part 6 of the Criminal Justice Act 1988 contained no provision preventing confiscation proceedings from continuing when a defendant had absconded. There was no common-law or Convention basis for imposing a duty to wait until such a defendant chose to return.

3. The court applied by analogy Jones [2003] AC 1, in which an absconding defendant was held to have waived legal representation at trial. Where an absconding defendant leaves a representative without instructions, the common law at least permits the confiscation hearing to continue in the defendant’s absence.

4. Section 6 of the Proceeds of Crime Act 2002 did not govern these proceedings. In any event, its requirement that the Crown Court proceed where stated conditions are met did not imply that the court was prohibited from proceeding in other circumstances. The provision concerning absconding defendants therefore gave the applicant no assistance.

5. The exercise of discretion was fair. The benefit assessment arose straightforwardly from the offences of conviction and the relevant evidence had been served during the trial. The prosecution’s approach had reduced the assessed benefit, no challenge was made to the figures, and section 83 of the Criminal Justice Act 1988 allowed an application to vary the order. An absconding defendant could not avoid confiscation merely by disappearing.

• Court of Appeal (Criminal Division): The applicant’s renewed application for leave to appeal against the confiscation order was refused.
• Crown Court at Ipswich: On 1 April 2009, a confiscation order of £1,873,870 was made in the applicant’s absence under Part 6 of the Criminal Justice Act 1988.