R v Fawaz Miah

Section 51 of the Criminal Justice Act 2003 empowers a court to permit a defendant to give evidence by live audio or video link in eligible criminal proceedings. The power follows from the references to a person taking part in proceedings in whatever capacity. It is subject to the interests-of-justice condition, representations by the parties, relevant guidance and all the circumstances of the case. In a confiscation hearing before a judge, a live link may be fair where the defendant has an effective opportunity to give evidence. A confiscation hearing cannot reopen the basis of sentence. Under the Proceeds of Crime Act 2002, the recoverable amount remains the benefit unless the defendant proves that the available amount is lower.

After pleading guilty to conspiracy to commit fraud, the appellant faced confiscation proceedings in the Crown Court at Durham. He was unable to attend in person because he had not been produced from prison, but gave evidence by live video link. The Recorder ordered payment of £246,071, with 30 months’ imprisonment in default.

The appeal challenged the statutory power to receive a defendant’s evidence by live link, the Recorder’s exercise of that power and the fairness of the hearing, and the factual and proportionality basis of the confiscation order. The central issues were whether section 51 of the Criminal Justice Act 2003 applied to defendant evidence in confiscation proceedings and whether the order was legally and factually sustainable.

1. Appeal dismissed. The Recorder was entitled to make the confiscation order and to receive the appellant’s evidence by live video link.
2. On the proper interpretation of section 51 of the Criminal Justice Act 2003, the court may require or permit a defendant to take part in eligible criminal proceedings through a live audio or video link. Section 51 applies to a person, while section 56 provides that taking part means taking part in whatever capacity. That includes giving evidence. The legislative history supported that interpretation. The guidance issued by the Lord Chief Justice could not narrow the statutory power. R v Pierini [2023] EWCA Crim 1189 was at least consistent with the existence of that power.
3. The discretion under section 51 requires consideration of the interests of justice, the parties’ representations, relevant guidance and all the circumstances. The court should consider the nature of the hearing, the issues and the form of participation. A confiscation hearing before a judge, involving the defendant’s opportunity to show that the available amount was less than the benefit, raised different considerations from evidence before a jury. The Recorder considered the risk of delay, the proposed use of videos and photographs and the appellant’s ability to participate. The transcript showed that the appellant had a fair opportunity to explain his case and that the hearing did not become unfair.
4. A confiscation hearing is not an opportunity to reopen the basis on which sentence was imposed. The Recorder was entitled to rely on the sentencing judge’s finding that the appellant was a leading figure in the conspiracy.
5. Under sections 6 and 7 of the Proceeds of Crime Act 2002, the benefit figure was not disputed. The appellant had not shown on the balance of probabilities that the available amount was less than the benefit. The Recorder was entitled to disbelieve his evidence and to make a proportionate order by reference to the likely share of the proceeds and the estimated value of the assets identified.

1. Crown Court at Durham: Following the appellant’s guilty plea to conspiracy to commit fraud, Mr Recorder D Smith made a confiscation order for £246,071, with 30 months’ imprisonment in default.
2. Court of Appeal (Criminal Division): Appeal against the confiscation order dismissed.