R & Anor, R v

Under section 40(7)(a) of the Proceeds of Crime Act 2002, undue delay in continuing criminal proceedings is a freestanding bar to a restraint order. It is not confined to delay that would make a trial unfair or amount to an abuse of process.

The assessment depends on the case's nature and complexity, the extent of delay, and its causes. Although a finding of undue delay will ordinarily be exceptional, the statutory words require no further gloss. The court assesses delay when it hears the restraint application. Delay caused by the prosecution's defective disclosure process may remain undue despite defence and court acquiescence.

The Crown appealed under section 43 of the Proceeds of Crime Act 2002 from Edis J's refusal of applications for fresh restraint orders over property held by R, W and a third party.

The original restraint orders had been set aside in earlier related proceedings. Fresh applications were made in 2011 but were deferred while criminal proceedings became delayed by a flawed approach to primary disclosure. A previous appeal concerning a terminating ruling had resulted in the stay of the prosecution being lifted: [2015] EWCA Crim 1941.

For the jurisdiction issue, the parties assumed that the second condition in section 40 was otherwise met. The central question was whether there had been undue delay in continuing the criminal proceedings within section 40(7)(a).

1. The Crown's appeal was dismissed. Edis J was entitled to conclude that undue delay in continuing the criminal proceedings deprived the court of jurisdiction to make the requested restraint orders.

2. Section 40(7)(a) of the Proceeds of Crime Act 2002 creates a freestanding statutory inquiry. It is not limited to delay sufficiently prejudicial to justify a stay for abuse of process. The absence from the provision of any requirement for prejudice, and the identical expression in section 40(8), supported that construction. The Crown's interpretation would also leave section 40(7)(a) with little work to do.

3. Whether delay is undue requires an evaluative assessment of the nature and complexity of the case, the extent of the delay, and the reasons for it. Complex proceedings may properly require substantial preparation time and may involve delay. A conclusion that delay is undue will therefore ordinarily arise only exceptionally, but the statutory phrase should not receive an additional gloss.

4. The words that the court believes there has been undue delay make the decision one for the judge hearing the application. An appellate court may interfere only for legal error or an unreasonable conclusion. Edis J's conclusion was plainly within the proper ambit of that judgment.

5. The relevant delay was to be assessed when the restraint application was heard, rather than at a notional earlier date when it might have been determined. The prolonged delay resulted from the prosecution's flawed disclosure process. It remained undue notwithstanding the defence's, and the court's, acquiescence in the adjournment. The refusal of restraint orders was accordingly confirmed.

• Court of Appeal (Criminal Division) — In [2016] EWCA Crim 1938, dismissed the Crown's appeal and confirmed the refusal of restraint orders.
• Crown Court at Southwark — On 28 September 2016, Edis J held that undue delay in continuing the criminal proceedings removed jurisdiction to make the proposed restraint orders.
• Earlier related appellate proceedings — A Court of Appeal judgment at [2011] EWCA Crim 647 set aside earlier restraint orders, while the appeal at [2015] EWCA Crim 1941 lifted a stay of the prosecution.