R v Bradley Luxton

Under Proceeds of Crime Act 2002, once the duty to proceed under section 6 arises, a prosecutor’s purported withdrawal does not itself end confiscation proceedings. The Crown Court must decide whether to make an order. A decision made on the mistaken basis that withdrawal ends the proceedings is a decision not to make a confiscation order and is appealable.

The power in section 385 of the Sentencing Act 2020 is not confined by statute to correcting an error of law or fact. Its ordinary restrictions are matters of sentencing practice, not jurisdiction. A financial order made contrary to section 15(2) does not prevent confiscation proceedings from continuing.

The respondent pleaded guilty to drug-supply conspiracies and converting criminal property. Confiscation proceedings were postponed after sentence. A Recorder later fixed a final hearing beyond the two-year period without appreciating the true expiry date.

At the listed hearing, the prosecutor and the judge believed that no valid postponement had been made and that R v Iqbal prevented any extension. The prosecutor purported to withdraw the proceedings, and the judge recorded the withdrawal and imposed a statutory surcharge.

The prosecution applied under section 385 of the Sentencing Act 2020 to rescind that outcome. The Crown Court refused. The prosecution appealed under section 31(2) of the Proceeds of Crime Act 2002. The central issues were whether that refusal was appealable, whether the earlier decision was appealable, and whether the surcharge obstructed renewed confiscation proceedings.

1. Appeal allowed as amended. The court granted leave to amend the notice to challenge the decision of 27 July 2023, extended time, and granted leave to appeal. Section 31(2) of the Proceeds of Crime Act 2002 permits a prosecutor’s appeal only from a decision not to make a confiscation order. It does not permit an appeal from the later refusal of an application under section 385 of the Sentencing Act 2020 (paras [47]-[52]).
2. The Crown Court’s refusal under section 385 rested on an unduly narrow view of that provision. It imposed no statutory condition that there must have been an error of law or fact, nor did it exclude correction because the prosecutor caused the error. The authority’s usual restriction to material sentencing error was a matter of sound sentencing practice, rather than jurisdiction. Here there were material errors of both fact and law (paras [31]-[40]).
3. A prosecutor’s purported withdrawal does not end confiscation proceedings once the court’s section 6 duty has arisen. The court has the final responsibility to decide whether to make a confiscation order. The judge’s conclusion that he had no decision to make was legally wrong. In the circumstances, his failure to make an order was a decision not to make one (paras [44]-[45], [52]).
4. The order of 4 November 2022 fixing a hearing beyond the permitted period was a postponement. It could be made on the court’s own motion. Any failure then to consider exceptional circumstances was remediable and did not remove jurisdiction. The involvement of two interested third parties, the need to protect their rights, the court’s listing position, and the preparation required were exceptional circumstances justifying extension (paras [43]-[45]).
5. The statutory surcharge should not have been imposed because of section 15(2)(ca), but the Court of Appeal lacked jurisdiction to set it aside. Its continued existence did not obstruct the confiscation proceedings. The Crown Court was directed to proceed afresh: it must hold a review hearing within 28 days, fix a final hearing, extend the permitted period to it, and give necessary directions (paras [52]-[54]).

• Court of Appeal (Criminal Division): Allowed the prosecution’s amended appeal, extended time and directed the Crown Court to proceed afresh under section 6 of the Proceeds of Crime Act 2002.
• Crown Court at Liverpool: On 15 September 2023, refused an application under section 385 of the Sentencing Act 2020 to rescind the order made on 27 July 2023. On 27 July 2023, following the prosecutor’s purported withdrawal, did not make a confiscation order and imposed a statutory surcharge.