Boughton -Fox v R.

A second application for leave to appeal against conviction is ordinarily impermissible after the first application has been refused or the appeal dismissed. Save for a reference by the Criminal Cases Review Commission, the court may reopen the matter only in wholly exceptional circumstances, such as a nullity or procedural injustice.

Where transitional provisions exclude the Proceeds of Crime Act 2002 scheme because a continuing offence began before the specified date, a confiscation order made under that scheme must be quashed. The Court of Appeal may nevertheless substitute an order under the applicable earlier statutory scheme if justice permits and the statutory appellate power is engaged.

The appellant was convicted at Ipswich Crown Court of conspiracy to defraud and sentenced to seven years’ imprisonment. His first renewed applications for leave to appeal against conviction and sentence had been refused. He made a second application for leave to appeal against conviction after the Criminal Cases Review Commission declined to refer the case.

He also appealed a confiscation order made on 21 March 2012 under the Proceeds of Crime Act 2002. The indictment alleged a conspiracy beginning on 1 March 2003. The parties agreed that the applicable transitional provisions required confiscation to proceed instead under the Criminal Justice Act 1988.

The central issues were whether a second conviction appeal could be entertained, whether the invalid confiscation order should be quashed, and whether the court could and should consider substituting an order under the earlier scheme despite the history of a restraint order.

1. Conviction. Leave to pursue a second appeal against conviction was refused. The court had no jurisdiction to entertain it save in wholly exceptional circumstances, ordinarily through a Criminal Cases Review Commission reference. The appellant’s proposed grounds did not approach the narrow category identified in R v Pinfold 1988 1QB 462 and R v Barry Jones Strettle 2013 EWCA Crim 1385.

2. Confiscation order. The appeal against the confiscation order succeeded. By article 3(1), read with article 1(3), of the transitional Order, section 6 of the Proceeds of Crime Act 2002 did not apply where a continuing offence began before 24 March 2003. As the conspiracy charged began on 1 March 2003, the Crown Court had erred in applying that scheme. The existing order had to be quashed.

3. Substitution. Section 11(3) of the Criminal Appeal Act 1968 empowered the court to substitute an order that the Crown Court could have made under the Criminal Justice Act 1988. Section 11(3A) did not permit a remittal to the Crown Court because that provision concerned fresh proceedings under the scheme actually applied below. There was no objection in principle to the Court of Appeal considering a substituted order.

4. Restraint order and fairness. The restraint order was lawfully obtained under the 2002 Act because, at that time, the known investigation concerned offending no earlier than summer 2005. It became vulnerable to discharge when the indictment was amended to allege a conspiracy beginning on 1 March 2003, since no section 6 confiscation order could then be made. It nevertheless continued unless discharged. The prosecutor’s failure to address the changed position was inadvertent, not an abuse of process; moreover, a restraint order under the 1988 scheme would likely have been obtained. It was therefore not unjust to consider substitution.

5. The court directed a further hearing to determine benefit, realisable amount, compensation and the terms, if any, of a substituted confiscation order. The statutory assumptions available under the 2002 Act did not apply under the 1988 scheme on the facts of the case.

• Court of Appeal (Criminal Division): Leave for a second appeal against conviction was refused. The confiscation appeal was allowed in principle: the order under the Proceeds of Crime Act 2002 was to be quashed and the court directed a further hearing on a possible substituted order under the Criminal Justice Act 1988.
• Crown Court at Ipswich: The appellant was convicted of conspiracy to defraud and sentenced to seven years’ imprisonment. On 21 March 2012, the Crown Court made a confiscation order under the Proceeds of Crime Act 2002.