Gavin, R. v

In confiscation proceedings under the Proceeds of Crime Act 2002, the statutory provisions concerning an absconding defendant do not exclude the common-law discretion to continue where another defendant is absent. The discretion depends on whether a fair hearing remains possible.

A court must not exercise that discretion where the State has prevented a defendant, who wishes to attend, from being present. That course breaches the fair-hearing guarantee in Article 6 and is an abuse of process, even if the disputed issues could otherwise have been fairly resolved. Conversely, a defendant who voluntarily leaves the jurisdiction may bear the consequences of absence if the procedure as a whole remains fair.

These conjoined appeals concerned confiscation orders made after the appellants had been deported and were absent from the final hearings.

Tasie was deported against his will while confiscation proceedings were known to be pending. The Crown Court nevertheless made an order. Gavin chose to return to Jamaica under the Facilitated Return Scheme, without informing the authorities or his solicitors that confiscation proceedings remained outstanding. A confiscation order was then made in his absence.

Both appellants contended that the Proceeds of Crime Act 2002 gave no power to proceed in their absence, and that making the orders was incompatible with a fair hearing. The central issue was when a confiscation hearing may properly continue without the defendant.

1. Tasie’s appeal was allowed and his confiscation order was quashed. Gavin’s appeal was dismissed and his confiscation order remained in force.

2. Once the conditions in section 6(2) of the Proceeds of Crime Act 2002 are met, the Act does not make the provisions for absconding defendants an exhaustive code governing every absence. The court retains the common-law discretion recognised in R v Jones [2002] UKHL 5 to continue a criminal sentencing-related hearing if a fair hearing can be achieved. The issue is one of discretion under common-law and Convention principles, not jurisdiction.

3. Confiscation proceedings fall within Article 6(1) because they form part of sentencing. Although the presumption of innocence and the minimum rights in Article 6(2) and (3) do not strictly apply after conviction, safeguards reflected in Article 6(3), including attendance, inform whether the hearing is fair under Article 6(1).

4. The State could not deport Tasie against his will, when it knew that confiscation proceedings were pending, and then rely on the asserted limited practical importance of his attendance. His presence was an important fair-trial safeguard. Proceeding in those circumstances breached Article 6 and was also an abuse of process. It was immaterial that the remaining dispute was narrow and could otherwise have been resolved fairly. The State, being responsible for the absence, had to remedy it by securing his return or an effective video-link hearing.

5. Gavin’s absence was voluntary. He knew that proceedings were pending but chose facilitated return without notifying the authorities or his solicitors. Whether that conduct amounted to a formal waiver was immaterial. The judge could proceed if the essence of a fair hearing remained. Gavin had previously participated, made section 17 statements, had counsel, and faced a limited dispute principally concerning valuation. The judge was entitled to find the hearing fair.

• Court of Appeal (Criminal Division): Gavin’s appeal against the confiscation order was dismissed. In the conjoined appeal, Tasie’s appeal was allowed and his confiscation order was quashed.
• Crown Court: Confiscation orders were made following each appellant’s conviction. No citation for either Crown Court decision is stated in the judgment.