Westbrook & Anor, R. v (Rev 1)

A confiscation order under Proceeds of Crime Act 2002 is not invalid merely because a formal order is drawn up late or contains later administrative errors. A judge may validly make the order through a clear written ruling which decides the recoverable amount and orders payment. Failure to pronounce an order in open court, or another procedural defect, will not normally make it a nullity. The decisive question is whether the defect caused real prejudice or unfairness. A factual finding that offenders retained hidden assets will stand where the judge had cogent reasons for rejecting their account.

The applicants, who were married, pleaded guilty at Isleworth Crown Court to offences of theft, fraud and dealing with criminal property arising from the diversion of money from their employer and associated businesses.

Following contested confiscation proceedings, the judge found a joint benefit of £523,657 and made a joint and several confiscation order for £248,657, on the basis that assets had been concealed. A formal order was not drawn up until August 2019 and contained drafting errors.

Each applicant sought an extension of time and leave to appeal. The central issues were whether the confiscation order was a nullity and, if not, whether the finding of hidden assets could stand.

1. Ground 1. The court granted an extension of time and permission to appeal, but dismissed the appeal. Under section 6(5) of the Proceeds of Crime Act 2002, the judge had to determine the recoverable amount and make a confiscation order. Nothing in that provision required a separate formal document before the order could exist.
2. The judge’s written ruling did both things. It fixed the recoverable amount and unambiguously imposed a joint and several confiscation order for £248,657. It was therefore itself a valid written order, regardless of the later defective documents.
3. The omission to pronounce the order in open court was poor practice but did not make the order a nullity. Following R v Billington [2017] EWCA Crim 618, and the authorities considered at [42], an administrative or procedural defect has that consequence only where it causes real prejudice or unfairness. The applicants and their representatives had promptly received the ruling and knew that the order had been made. They suffered no prejudice.
4. The court also found that the order had been made within the applicable statutory period. A procedural omission concerning postponement did not justify quashing it in the absence of prejudice. The later drafting errors did not invalidate the order already made.
5. Ground 2. The court refused an extension of time and permission to appeal. The judge was entitled to reject Caron Westbrook’s evidence as dishonest and to find concealed assets. The financial investigator’s evidence, read fairly, supported rather than undermined that conclusion.

• Court of Appeal (Criminal Division) — In [2020] EWCA Crim 1243, the court dismissed the appeal on Ground 1 after granting an extension of time and permission. It refused an extension and permission on Ground 2.
• Crown Court at Isleworth — Following confiscation proceedings, HHJ Denniss QC issued a written ruling on 7 October 2018. He assessed joint benefit at £523,657 and made a joint and several confiscation order for £248,657.