Bhanji, R. v

In confiscation proceedings, a defendant’s involuntary absence through illness does not automatically make continuation an abuse of process. The court retains a discretion to proceed, subject to the overriding requirement of a fair hearing. Fairness is assessed in all the circumstances. Material matters include the extent of the absence, effective legal representation, whether the defendant’s case and evidence can fairly be put before the court, responsibility for evidential gaps, the mandatory sentencing context, and fairness to the Crown. Involuntary absence is a potent factor and may be decisive, but it is not inevitably fatal to fairness.

The appellant had been convicted of cigarette smuggling and duty evasion. The prosecution then sought a confiscation order under the Proceeds of Crime Act 2002. The agreed benefit figure exceeded £1.2 million, but the available amount was disputed.

Because chronic illness prevented the appellant from attending, giving evidence, or effectively participating, his counsel sought a stay. Leicester Crown Court refused and later made a confiscation order for £1,202,815.90, with three years’ imprisonment in default. The appeal challenged, in substance, the earlier refusal to stay. The central issue was whether proceeding despite the appellant’s involuntary absence had denied him a fair hearing.

1. Appeal dismissed. The Crown Court was entitled to continue the confiscation proceedings despite the appellant’s involuntary absence. The resulting hearing was fair in all the circumstances.

2. Confiscation proceedings under the Proceeds of Crime Act 2002 are mandatory and form part of sentencing. They are criminal proceedings for Article 6.1 of the ECHR, but they do not involve a fresh criminal charge and Article 6.2 does not apply. A defendant should ordinarily be able to attend and participate, but the court retains a discretion to proceed in his absence.

3. The court treated the governing issue as whether the actual hearing was fair, rather than whether absence created a real potential for unfairness. Gavin & Tasie [2010] EWCA Crim 2727 showed that the effect of absence depends on the circumstances. The observation in R v Jones [2003] 1 AC 1 concerning the rare propriety of beginning a criminal trial during involuntary illness did not govern this sentencing process.

4. Involuntary and inculpable absence was a powerful consideration. It was not, however, conclusive. The appellant had competent representation; other witnesses, including his wife and parties to relevant transactions, gave evidence; and the judge used case-management powers to ensure that the appellant’s case could be advanced.

5. The judge was entitled to find that the appellant bore some earlier responsibility for the lack of financial information and a required statement. The interests of justice required a determination. Although the hearing fell short of the ideal because the appellant could not explain his own affairs, it did not cross the boundary of fairness. The confiscation order therefore stood.

• Court of Appeal (Criminal Division): By [2011] EWCA Crim 1198, dismissed the appeal and upheld the confiscation order.
• Leicester Crown Court: On 17 July 2009, following a refusal on 17 December 2008 to stay the proceedings, made a confiscation order of £1,202,815.90 with three years’ imprisonment in default.