Okedare, R v

Where a defendant absconds before conviction but is later convicted in absence, the Crown Court cannot make a confiscation order under section 6 alone because section 6(8) prevents its ordinary operation. The appropriate route is section 6 as applied by section 28 of the Proceeds of Crime Act 2002, provided its conditions are met.

Proceedings remain unconcluded for section 28 where none of the concluding events in section 85 has occurred. The section 28 heading does not restrict its clear operative terms. A confiscation order made by the wrong statutory route should be quashed and reheard where the safeguards in section 28(5), including reasonable steps to contact the defendant and representation for affected persons, have not been afforded.

The appellant absconded before his trial for conspiracy to defraud. He was convicted and sentenced in his absence at Croydon Crown Court. A confiscation order was later made in his absence under section 6(5) of the Proceeds of Crime Act 2002.

The Crown Court had ruled that neither section 27 nor section 28 applied, but that section 6 alone required an order. On appeal, both parties accepted that section 6 alone and section 27 were not available routes. The issue was whether section 28 nevertheless authorised a confiscation order after an absconder had been convicted in absence, and whether the existing order should stand.

1. The appeal was allowed. The court quashed the confiscation order and remitted the confiscation application to the Crown Court for rehearing under section 6 as applied by section 28 of the Proceeds of Crime Act 2002.
2. Section 6 alone was unavailable. Section 6(8) provides that its first condition is not satisfied where the defendant absconds. Its reference to section 27 did not confine that exclusion to a defendant who absconded only after conviction. Section 27 itself expressly applies where absconding occurs after conviction, so it did not cover this case.
3. Section 28 did cover the case. Proceedings had been started before the appellant absconded and had not concluded. Applying section 85, neither acquittal, quashing or pardon, satisfaction or discharge of a confiscation order, nor a decision not to make one had occurred. More than two years had elapsed, the prosecutor had applied, and the court would have regarded it as appropriate to proceed. Section 28 therefore applied section 6 to the appellant.
4. The heading to section 28 did not alter that construction. A heading is only a limited guide to a provision’s scope, consistently with DPP v Schildkamp [1971] AC 1. Sections 29 and 30 contemplated some earlier confiscation proceedings, but did not limit section 28’s operation. The court found support in R (on the application of) CPS v D [2006] EWHC 2738 (Admin) for treating the predecessor legislation as capable of covering proceedings that had not concluded despite conviction.
5. The existing order could not stand merely because substantial prejudice was uncertain. The statutory safeguards in section 28(5) must be provided before an order is made. The court therefore remitted the matter, notwithstanding the possibility that a rehearing might produce an order less favourable to the appellant. It certified a point of public importance but refused leave to appeal to the Supreme Court.

• Court of Appeal (Criminal Division): In [2014] EWCA Crim 1173, the court quashed the confiscation order and remitted the application to Croydon Crown Court for rehearing under section 6 as applied by section 28 of the Proceeds of Crime Act 2002.
• Croydon Crown Court: The appellant was convicted and sentenced in absence. His Honour Judge Stow QC ruled that section 6 alone permitted confiscation, and Judge Baucher subsequently made the confiscation order under section 6(5).