Clipston v R. (Rev 1)

Confiscation proceedings under Part 2 of the Proceeds of Crime Act 2002 are criminal in nature because they extend the sentencing process. They are not, however, proceedings in which the strict rules of evidence apply. The hearsay regimes in the Civil Evidence Act 1995 and the Criminal Justice Act 2003 therefore do not apply directly.

Hearsay remains admissible. Where admissibility or weight is seriously disputed, the court should apply by analogy the safeguards in section 114(2) of the Criminal Justice Act 2003, while preserving the flexibility of post-conviction proceedings and ensuring procedural fairness.

The appellant pleaded guilty in the Crown Court at Luton to conspiracy to supply Class A drugs. He was sentenced to 12 years’ imprisonment. The Crown then sought confiscation under Part 2 of the Proceeds of Crime Act 2002.

HHJ Mensah admitted, as hearsay, statements by a co-accused concerning the scale of drug dealing. She found that the appellant had a criminal lifestyle, assessed his benefit at £1,641,160, and made a confiscation order for £500,000, including hidden assets.

The appellant contended that the hearsay should have been governed by the Civil Evidence Act 1995, rather than the Criminal Justice Act 2003, and that without it the confiscation order could not stand. The central issue was the proper approach to hearsay evidence in Part 2 confiscation proceedings.

1. Appeal dismissed. The confiscation order of £500,000 was upheld. Ground I failed, which was sufficient to determine the appeal.

2. Part 2 confiscation proceedings are an extension of sentencing and are therefore criminal in nature. Their use of the civil standard, statutory assumptions and a burden on the defendant concerning the available amount does not alter that character. The proceedings determine neither guilt nor a criminal charge for the purposes of Article 6(2).

3. Neither statutory hearsay regime applied directly. The Civil Evidence Act 1995 did not apply because Part 2 contains no provision importing it. Section 46 of the Proceeds of Crime Act 2002, which expressly applies that Act to restraint proceedings, reinforced that conclusion. The Criminal Justice Act 2003 did not apply strictly because its hearsay provisions govern criminal proceedings in which strict rules of evidence apply, whereas confiscation proceeds on information and permits post-conviction evidential flexibility.

4. Hearsay was nevertheless admissible. Following the approach indicated by R v Silcock and Levin [2004] EWCA Crim 408, the court held that a judge must proceed flexibly but fairly. Where hearsay is important and genuinely disputed, section 114(2), and where appropriate section 116, of the Criminal Justice Act 2003 should be used by analogy. The judge must assess reliability, the circumstances of the statement, the inability to call oral evidence, the difficulty of challenge and the defendant’s opportunity to answer it.

5. HHJ Mensah had properly applied those safeguards. The co-accused’s interview was relevant and probative evidence of the conspiracy’s scale, and could tell against the appellant despite having described the co-accused’s own conduct. The judge exercised particular caution, considered the appellant’s evidence and was entitled to admit and give weight to the material. Counsel’s mitigation remarks were merely confirmatory and added nothing material.

6. The court also indicated that, even without the hearsay, the remaining evidence would probably have justified the same order.

• Court of Appeal (Criminal Division): The appellant’s appeal against the confiscation order was dismissed: [2011] EWCA Crim 446.
• Crown Court at Luton: HHJ Mensah sentenced the appellant to 12 years’ imprisonment following his guilty plea, then made a confiscation order under the Proceeds of Crime Act 2002 requiring payment of £500,000.