Nevitt, R v

An offender who absconds cannot require confiscation proceedings under the Criminal Justice Act 1988 to be deferred until he returns. The Act does not preclude proceedings in the offender’s absence. The analogy with an absconding defendant’s waiver of legal representation supports that conclusion.

A later statutory review regime for absent drug traffickers does not justify an inference that Parliament intended a different result under the 1988 Act. The court also indicated that any absence of prosecutorial notice would not invalidate an order where the court could itself initiate confiscation proceedings under section 71(1)(b).

The applicant sought a renewed extension of almost eight years to appeal against a confiscation order of £1.6 million made in the Crown Court at Manchester Crown Square on 2 September 2008. The order followed his convictions for conspiracy to defraud and fraudulent trading arising from fraudulent training-grant applications.

He had absconded after his first conviction and remained unlawfully at large during the later trial, sentencing and confiscation proceedings. He contended that the order was unlawful because it had been made in his absence. He also challenged notice under section 71 of the Criminal Justice Act 1988, the six-month period for payment, and the judge’s understanding of a certificate of inadequacy.

1. The renewed application was dismissed. The absence of an arguable challenge to the lawfulness of the confiscation order removed the only cogent basis for extending time by almost eight years.

2. The court approved R v Spearing [2011] 1 Cr App R(S) 101. Nothing in the Criminal Justice Act 1988 precluded confiscation proceedings in the absence of an offender who had absconded. Spearing correctly drew an analogy with Jones [2003] 1 AC 1, concerning the consequences of absconding for legal representation. The judge was therefore entitled to proceed in the applicant’s absence.

3. The court rejected the submission based on the later regime in the Drug Trafficking Act 1994. It was neither possible nor appropriate to infer from that different statutory scheme that Parliament had intended confiscation proceedings under the 1988 Act to await an absconding offender’s return.

4. The remaining grounds were addressed briefly. Notice had in fact been given, and any defect would not have invalidated the order because the judge could have proceeded under section 71(1)(b): R v Tahir [2006] EWCA Crim 792. The applicant had provided no evidence of his assets, which he had concealed, and could not show that the six-month payment period was unjust.

5. The court accepted that the sentencing judge had misunderstood the limited function of a certificate of inadequacy. That error did not affect the validity of the order, particularly as the judge had substantially reduced the benefit figure when assessing realisable assets. No order for prosecution costs was made.

• Court of Appeal (Criminal Division): By judgment dated 14 March 2017, [2017] EWCA Crim 421, refused an extension of almost eight years and dismissed the renewed application to appeal.

• Crown Court at Manchester Crown Square: On 2 September 2008 made a confiscation order of £1.6 million under the Criminal Justice Act 1988.