OB v The Director of the Serious Fraud Office

A contempt arising from breach of a restraint order made under Proceeds of Crime Act 2002, s 41, is a civil, not criminal, contempt. Classification depends on the nature of the disobedience and the purpose of committal. The fact that proceedings are in the Crown Court, or that committal is punitive as well as coercive, is not determinative.

The rule of specialty in the United Kingdom – United States Extradition Treaty 2003 applies only to criminal offences. It does not prevent committal for such a civil contempt, even though the contemnor was extradited for different criminal offences and imprisonment may result.

The appellant was investigated for an alleged boiler-room fraud. The Common Serjeant made a restraint order requiring disclosure and repatriation of assets. The appellant left the jurisdiction and did not comply. He was later extradited from the United States to face the underlying fraud charges, without waiving specialty.

After his return, the Common Serjeant ruled that proceedings for breach of the restraint order were civil proceedings and committed him to prison for 15 months. The appellant appealed both rulings under the Administration of Justice Act 1960, s 13.

The central questions were whether the contempt was civil or criminal and, if civil, whether Article 18 of the United Kingdom – United States Extradition Treaty 2003 nevertheless barred committal.

1. Appeal dismissed. Breach of the restraint order was a civil, not criminal, contempt. The appellant’s committal therefore infringed neither specialty nor the Treaty.
2. The distinction turns principally on the nature of the contempt and the purpose of the order. Disobedience by a party bound by an existing court order is characteristic of civil contempt. A committal may be punitive, but its important coercive purpose was to induce the required disclosure and repatriation. The appellant could purge the contempt by complying with the order.
3. The court rejected a test based on the court in which proceedings happened to be heard. The transfer under Proceeds of Crime Act 2002 of jurisdiction over restraint orders to the Crown Court was administrative. It did not convert restraint proceedings from civil to criminal proceedings. Restraint orders remained closely analogous to freezing injunctions, breach of which gives rise to civil contempt.
4. The predecessor confiscation regimes and the structure of the 2002 Act supported that conclusion. In particular, the application of provisions of the Civil Evidence Act 1995 to restraint proceedings as they apply to civil proceedings confirmed their civil character. The court regarded R v M [2008] EWCA Crim 1901 as strong persuasive support, although it was not binding on the present issue.
5. Article 18 must be read in the context of the Treaty’s preamble and Articles 1 and 2. Its restriction on detention, trial and punishment concerns criminal offences. A civil contempt is not such an offence. Imprisonment for civil contempt does not alter that character. The court accordingly upheld the Common Serjeant’s jurisdiction and the 15-month committal.

• Court of Appeal (Criminal Division): dismissed the appeal and upheld the committal for civil contempt: [2012] EWCA Crim 67.
• Central Criminal Court: the Common Serjeant ruled on 1 April 2011 that the contempt proceedings were civil and, on 20 May 2011, committed the appellant to prison for 15 months.