Pritchard, R v (Rev 1)

Under Proceeds of Crime Act 2002 section 13A, a compliance order containing a foreign-travel restriction need not be necessary. It must instead be appropriate, justified by proper reasons, and directed to making the confiscation order effective.

Appropriateness requires a proportionate, fact-specific balance between the risk that the order will be frustrated and the restriction’s effect on the defendant. An indefinite travel restriction is exceptional. The ability to seek variation or discharge, or to end the restriction by paying the confiscation order, does not alone justify indefiniteness. A finite order should reflect the time reasonably needed for enforcement and should normally end on full payment.

The appellant was convicted of conspiracy fraudulently to evade a prohibition or restriction on the importation of controlled drugs. The Northampton Crown Court subsequently made a confiscation order for £92,920, with a 15-month default term, and imposed a compliance order preventing him from leaving the United Kingdom, requiring surrender of travel documents, and barring applications for further documents.

Most of the available amount was attributed to concealed assets at an unknown location. The appellant appealed the travel restriction. The central issue was the proper approach to whether a travel restriction was appropriate under section 13A of the Proceeds of Crime Act 2002, and whether the indefinite restriction was proportionate.

1. The appeal was allowed to the limited extent of varying the compliance order. A travel restriction was justified on the facts, but its indefinite duration was not.

2. Section 13A(2) of the Proceeds of Crime Act 2002 asks whether the court believes a compliance order is appropriate to ensure that a confiscation order is effective. “Appropriate” is not synonymous with “necessary”. The statutory language requires proper justification, assessed by reference to the individual facts and the statutory purpose of securing effectiveness.

3. Proportionality is inherent in that inquiry. Under section 13A(4), the court must balance the need to make the confiscation order effective, including the risk that it will otherwise be frustrated, against the effect of restricting the defendant’s freedom of movement and any consequential interference with private, family, or property interests. No exhaustive list of factors should be prescribed.

4. The Crown Court’s conclusion that a restriction was appropriate was sound. The appellant had concealed assets of unknown location comprising most of his available amount, substantial international connections, and business dealings conducted largely in cash. Those matters supported a real risk that he could leave the jurisdiction and frustrate enforcement, including the practical effect of the default term. His family and prospective employment circumstances did not outweigh that risk, particularly as a genuine overseas opportunity could found an application to vary the order under section 13A(5).

5. However, a travel restriction of indefinite duration should be exceptional. Neither the statutory right to seek variation or discharge nor the possibility of payment in full alone justifies it. A finite period should be selected on the circumstances, including time remaining under the custodial sentence and the period reasonably required for enforcement. The order was varied to expire on full payment or three years from its date, whichever occurred first, without prejudice to applications under section 13A(5).

• Court of Appeal (Criminal Division) — Leave was granted and the appeal was allowed to the limited extent of replacing the indefinite travel restriction with a three-year restriction, subject to earlier full payment: [2017] EWCA Crim 1267.
• Crown Court at Northampton — On 9 November 2016, Judge Timothy Smith made a confiscation order for £92,920 and an indefinite compliance order restricting foreign travel under section 13A of the Proceeds of Crime Act 2002.