O'Flaherty, R. v

In a judge-alone confiscation variation hearing, a judge may fairly ask limited questions to clarify a witness’s account, even where the prosecution has not cross-examined. The judge must not assume the role of prosecutor or conduct an investigation, but must seek the truth and do justice fairly and proportionately.

Whether an intervention infringes fairness or Article 6 depends on the circumstances. Relevant matters include its tone, extent, purpose, the nature of the tribunal and whether counsel can re-examine. A person asserting that a third party has a proprietary interest must prove it on the balance of probabilities. An unsecured loan, without more, creates a debtor-creditor obligation rather than a beneficial interest in property.

The applicant had been made subject to confiscation orders following convictions in 2010 and 2013. The Crown later identified a property registered in his name and applied under section 22 of the Proceeds of Crime Act 2002 to increase the available amounts under both orders.

The applicant contended that £30,000 used to acquire the property had been provided by Mr Usta as an investment. Crown counsel did not cross-examine Mr Usta. The Crown Court judge nevertheless asked him limited questions, rejected the alleged arrangement and varied the orders.

The applicant challenged the judge’s interventions, findings and fairness under Article 6. The central issue was whether the judge’s questioning made the confiscation hearing unfair or showed actual or apparent bias.

Appeal allowed in part. The court rejected the applicant’s challenge to the merits of the section 22 variations. It granted permission and allowed the appeal only to correct agreed mathematical errors in the revised confiscation amounts.

1. A judge ordinarily determines the issues raised by the parties and does not investigate on society’s behalf. However, the court approved the principle in Jones v National Coal Board (1957) 2 QB 55 that a judge has a duty to seek the truth and do justice. The court also considered R v Jauvel [2018] EWCA Crim. 787 and Barnard v DPP [2011] EWHC 1648 Admin. The authorities identify safeguards against partisan intervention, but do not create rigid or exhaustive rules. The ultimate question is fairness in the circumstances.

2. The questioning here did not amount to cross-examination or make the judge a prosecutor. This was a judge-alone confiscation exercise, so there was no risk of influencing a jury. The questions were courteous, short and directed to obvious matters already raised by Mr Usta’s statement, including the alleged loan’s terms, lack of documentation and the claimed employment relationship. Defence counsel had, and used, an opportunity to re-examine. The judge was therefore entitled to clarify the evidence, notwithstanding the prosecution’s failure to test it adequately.

3. The applicant bore the burden of proving, on the balance of probabilities, that Mr Usta had the alleged interest in the property. The judge was entitled to reject the account as implausible. There was no credible supporting explanation for the absence of written documentation, registration, legal advice, employment records, mortgage evidence or bank-transfer evidence.

4. Further, the witnesses’ own evidence described an unsecured loan of £30,000 with interest. That arrangement created no beneficial interest, proprietary estoppel or trust in favour of Mr Usta. The property was the applicant’s, while any repayment obligation was enforceable as an ordinary contractual debt. An agreement creating an interest in real property would have required writing.

The 2013 revised amount was to be reduced from £26,684.55 to £20,296.56, with a consequential reduction in the default term. The Crown was invited to prepare an agreed draft order for approval.

• Court of Appeal (Criminal Division) — In [2018] EWCA Crim 2828, the court granted permission and allowed the appeal only to rectify agreed mathematical errors. It rejected the challenge to the fairness and merits of the confiscation variations.
• Crown Court at Teesside — On 5 December 2016, the court varied the available amounts under section 22 of the Proceeds of Crime Act 2002, having rejected the alleged third-party interest in the property.