Evans, R v

In confiscation proceedings, whether the reasonable-time guarantee in Convention for the Protection of Human Rights and Fundamental Freedoms article 6.1 is met depends on the whole case. Relevant matters include complexity, the parties’ conduct, the conduct of domestic authorities, and the need to preserve adequate time and equality of arms for the defence.

Delay caused by foreign authorities’ response to letters of request is not ordinarily attributable to the English court. The position may differ if the Crown or court fails to progress or monitor the case. A joint interest in an asset is distinct from joint criminal benefit. A proviso against double recovery is unnecessary where no same joint benefit has been identified.

The applicant was convicted at Manchester Crown Court in 2009 of money-laundering offences arising from the purchase and sale of Deans Green Hall through complex foreign corporate arrangements. In 2015, the judge made a confiscation order of £19,645,021 after finding that the applicant had benefited from general criminal conduct.

He renewed an application for leave to appeal against that order after a single judge’s refusal. He alleged an unreasonable delay of five years and eight months between conviction and the order, challenged the absence of a double-recovery proviso, and disputed findings about particular available assets. The central issues were whether delay arguably breached article 6.1, whether another offender’s interest required a proviso, and whether the factual findings were arguably irrational or unsupported.

1. The renewed application for leave to appeal was refused. No ground was arguable.

2. The court applied the reasonable-time approach in Piper v United Kingdom (2015) 44547/10. The proceedings were exceptionally complex, largely because of the applicant’s own elaborate arrangements. The judge had kept progress under review and had adjourned principally to allow the defence to obtain potentially helpful foreign material. This balanced the need for a timely hearing against the defence’s rights to prepare its case and to equality of arms.

   The English court could not, on these facts, be held responsible for foreign authorities’ delays in answering letters of request. That was not an absolute rule: domestic inaction or inadequate supervision could contribute to an article 6.1 breach. Here, however, the Crown pressed for progress, abandoned further requests when appropriate, and the judge adjourned only where justified. The delay was reasonable and created no arguable breach.

3. The proposed proviso derived from Ahmad and Fields [2014] UKSC 36 was inapposite. The order concerned this applicant’s benefit from general criminal conduct, not an identified joint benefit shared with another offender. A joint interest in an asset did not establish a risk of impermissible double recovery. If an identified available asset were later depleted by another person’s confiscation order, that issue could be addressed in enforcement proceedings.

4. The challenges to the judge’s findings about the applicant’s control of companies, transactions and assets disclosed no absence of evidence or irrationality. The judge was entitled to reject the applicant’s account in light of the evidence and his use of arrangements designed to conceal control. A time-barred loan remained a legal debt, even though limitation could bar a remedy. The judge could therefore treat its outstanding balance as an available asset where there was a sufficient prospect of recovery by lawful means.

• Court of Appeal (Criminal Division): The court refused the renewed application for leave to appeal against the confiscation order: [2016] EWCA Crim 671.
• Manchester Crown Court: On 17 April 2015, the judge made a confiscation order of £19,645,021 following the applicant’s 2009 convictions.
• Court of Appeal (Criminal Division): A differently constituted court had refused the applicant’s renewed application for leave to appeal against conviction on 22 July 2010: [2010] EWCA Crim 2516.