Koli, R (on the application of) v Maidstone Crown Court & Ors

Judicial review does not lie against sentencing consequences arising from a trial on indictment where the statutory exclusion applies. Confiscation orders, serious crime prevention orders and financial reporting orders made in that context must be challenged through the criminal appellate route. Judicial review cannot be used to avoid the requirement for permission to appeal. Confiscation proceedings do not sentence a defendant for offences with which he has not been charged, and Article 6(2) of the European Convention on Human Rights does not apply to those proceedings.

The claimant sought permission to apply for judicial review, together with interim relief, challenging a confiscation order, a serious crime prevention order and a financial reporting order made by Maidstone Crown Court after his conviction for conspiring to launder money. He argued that the confiscation proceedings took account of criminal benefit from offending with which he had not been charged or convicted, contrary to Article 6(2) of the European Convention on Human Rights and the reading-down obligation under the Human Rights Act.

The central issues were whether judicial review was available, whether the orders were appealable to the Court of Appeal (Criminal Division), and whether the claimant had an arguable merits challenge.

1. Application dismissed. The claim for permission to apply for judicial review and the application for interim relief were totally without merit.
2. Section 29(3) of the Senior Courts Act excludes judicial review in respect of matters relating to a trial on indictment. The confiscation order, serious crime prevention order and financial reporting order were sentencing consequences of the claimant’s trial and therefore fell within that exclusion. The reasoning in R (Faithfull) v Ipswich Crown Court [2007] EWHC 2763 (Admin) applied.
3. The orders were each appealable to the Court of Appeal (Criminal Division). The relevant routes included section 50 of the Criminal Appeal Act 1968 for the confiscation order and default term, section 24 of the Serious Crime Act 2007 for the serious crime prevention order, and the general exclusion in section 9 of the Criminal Appeal Act 1968, as explained in R v Adams [2008] EWCA Crim 914; [2009] 1 WLR 301.
4. Judicial review could not provide an alternative route to appeal or enable the claimant to evade the requirement for leave to appeal. In any event, the proposed challenge had no arguable merit.
5. The claimant’s complaint that he had effectively been sentenced for uncharged offences misunderstood confiscation law. The relationship between criminal conduct, charged offences and uncharged conduct was explained in R v Briggs-Price [2009] UKHL 19. Article 6(2) did not apply to the confiscation proceedings. Any compatibility or section 3 reading-down argument had to be raised on appeal to the Court of Appeal (Criminal Division).
6. The claim was an abuse of the process of the court. Costs were ordered in the sum of £5,496.

The judgment is a first-instance Administrative Court decision. It records that the claimant had previously been convicted and sentenced in the Crown Court and had succeeded in a sentence appeal to the Court of Appeal (Criminal Division), but no appeal had been brought against the orders challenged in this claim.