Moss, R v

Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014, regulation 11, applies to domestic confiscation orders made before the Regulations came into force. The regulation concerns recognition and enforcement. It must be read purposively to facilitate enforcement under the Framework Decision, subject to the Crown Court’s discretion where certification would cause real unfairness.

A confiscation order under Proceeds of Crime Act 2002 is value-based and operates in personam. The available amount may include assets not shown to be proceeds of crime. Regulation 3(2)(c)(ii), read with regulation 11 and the Framework Decision, therefore permits certification for enforcement in another Member State without a tracing exercise to prove that each specified asset derived from criminal conduct.

The appellant pleaded guilty to serious drugs offences and was made subject to a confiscation order under Proceeds of Crime Act 2002. The order included, among the assets available to satisfy it, a property in Javea, Spain. The parties proceeded on the basis that the property had not been shown to derive from criminality.

Following substantial payments but an unpaid balance, the prosecution sought a certificate under regulation 11 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 to enforce the order in Spain. HHJ Bright QC, sitting at St Albans Crown Court, directed its issue on 2 May 2018. The appeal concerned the Spanish property alone.

The central questions were whether the 2014 Regulations could certify a confiscation order made before 2 December 2014, and whether certification required proof that the particular property was the traceable proceeds of crime.

1. Appeal dismissed. The Crown Court had been entitled to issue the certificate in respect of the Spanish property.

2. Regulation 11 of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 applies to confiscation orders made before the Regulations came into force. The Regulations concern recognition and execution, rather than the substantive imposition of a penalty. Read purposively, in the light of the Framework Decision, their object is to facilitate enforcement. The present-tense drafting of regulation 11 did not require certification to occur when the confiscation order was originally made. A certificate may be sought later, including where assets are subsequently identified or the order is varied. The discretionary word “may” protects against real unfairness in an individual case.

3. The approach was consistent with Government of the United Kingdom v Montgomery [2001] UKHL3, which treated the fairness underlying the presumption against retrospectivity as different from retrospective punishment. It was also consistent with the purposive interpretative approach stated in In re A [2017] EWCA Crim 1393 and Criminal Proceedings against Pupino, Case C-105/03, [2006] QB 83.

4. The domestic confiscation scheme is value-based and operates in personam. A confiscation order requires payment of the recoverable amount, which may be satisfied from available assets whether or not a particular asset is traceable to crime. The statutory link to criminality lies in the calculation of benefit; the recoverable amount cannot exceed that benefit.

5. Regulation 3(2)(c)(ii), which includes property equivalent to the value of criminal proceeds, was apt to cover an available asset that was not itself shown to be criminal proceeds. Read with regulation 11, and consistently with Articles 2 and 7 of the 2006 Framework Decision, it did not impose a requirement to trace the Javea property to criminal conduct before certification. Requiring such tracing would undermine the Framework Decision’s equal treatment of value confiscation and property confiscation systems.

• Court of Appeal (Criminal Division): dismissed the appeal and upheld the issue of the regulation 11 certificate.
• Crown Court at St Albans: on 2 May 2018, HHJ Bright QC directed the issue of a certificate under the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 to seek enforcement in Spain.
• Earlier confiscation proceedings: the confiscation order was made in March 2008. An earlier appeal reduced the assessed benefit but affirmed the recoverable amount.