Crown Prosecution Service, R (on the application of) v Cambridge Crown Court

A Crown Court decision bringing confiscation proceedings under section 6 of the Proceeds of Crime Act to an end is a decision not to make a confiscation order. The prosecutor may appeal under section 31(2), unless the decision was made by virtue of one of the provisions excluded by section 31(3). Where an appropriate statutory appeal exists, judicial review should not ordinarily be entertained. The court did not decide whether the defendant was an absconder for the purposes of sections 6 and 27, or whether section 6(8) terminated proceedings already substantially advanced.

The Crown Prosecution Service sought judicial review of a decision made by HHJ Bate QC in confiscation proceedings against Kaki Wu. She had been convicted of keeping or managing a brothel and later left the jurisdiction while on immigration bail. The Crown Court treated her as having absconded. The prosecution declined to proceed under section 27 of the Proceeds of Crime Act, because the statutory assumptions under section 10 would not apply, and the confiscation proceedings under section 6 consequently came to an end.

The central issues were the legal character of the Crown Court’s decision and whether judicial review was available, or whether the prosecution had a right of appeal under section 31.

1. The application for judicial review was not entertained. The court held that the Crown Court had implicitly brought the section 6 confiscation proceedings to an end under section 6(8). The prosecution had plainly sought to continue under section 6, so it was unrealistic to treat the proceedings as abandoned merely because no formal order had been made.

2. A decision bringing section 6 proceedings to an end amounted to a decision not to make a confiscation order. It was therefore appealable by the prosecutor under section 31(2) of the Proceeds of Crime Act. The exclusion in section 31(3) applied to an order or decision made by virtue of provisions including section 27, but the relevant decision was not a section 27 decision.

3. Because an appropriate appeal mechanism existed, it was wrong for the Administrative Court to hear the matter by judicial review. The court therefore left unresolved whether judicial review was also excluded by section 29(3) of the Senior Courts Act 1981, including the effect of R (Faithfull) v Ipswich Crown Court [2008] 1 WLR 1636.

4. The court did not determine the substantive questions whether the defendant had absconded for the purposes of sections 6 and 27, or whether section 6(8) terminated proceedings that were already well advanced and in which the statutory assumptions had been engaged.

The Crown Prosecution Service challenged by judicial review a decision made by the Cambridge Crown Court on 23 February 2009. The Administrative Court held that the proper route was an appeal under section 31(2) of the Proceeds of Crime Act, and declined to determine the substantive confiscation issues.