Confiscation orders for offences pre- and post-POCA 2002 (R v McCool and another)

Thursday 24 May 2018

Elizabeth Garcia of the Garden Court Chambers Criminal Defence Team has published the below article for LexisNexis.

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This article was first published on Lexis®PSL on 18 May 2018. Click for a free trial of Lexis®PSL


Corporate Crime analysis: Elizabeth Garcia, third six pupil barrister at Garden Court Chambers, examines the Supreme Court’s decision that where a defendant had been convicted of a series of offences, some of which had been committed before the commencement date of the Proceeds of Crime Act 2002 (POCA 2002) and some after, a Crown Court could make a confiscation order under POCA 2002 solely in relation to the latter offences.

R v McCool and another [2018] UKSC 23, [2018] All ER (D) 12 (May)

What are the practical implications of the judgment?

When considering how to advise clients in respect of confiscation proceedings, practitioners need to be aware that the Supreme Court has considered the interpretation of Article 4(1) of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003, SI 2003/333, which is concerned with the transitional provisions which apply to the making of confiscation orders in Northern Ireland under POCA 2002, s 156, and is mirrored in respect of English and Welsh confiscation orders in SI 2003/333, art 3(1).

There is no need for practitioners to alter their approach following this judgment. If a similar situation occurs, where a client is convicted of offences that both pre- and post-date POCA 2002, then, although the Crown Court has jurisdiction to make a confiscation order in respect of offences which pre-date 24 March 2003, it may not do so by applying POCA 2002. Such offences remain outside its scope, and will be dealt with under the pre-POCA 2002 regime. For any offences committed after the commencement date, as might be expected, they remain within the scope of POCA 2002 and the usual confiscation regime will bite, providing the statutory requirements are met.

The point of this decision is that the prosecution may elect to pursue only the post-commencement conduct under POCA 2002, and is not therefore bound to seek confiscation under the pre-POCA 2002 regime.

Lord Kerr considered that if the appellants were correct in their argument that SI 2003/333 prohibited confiscation proceedings in relation to any offences where one arose out of conduct before the commencement date, then the prosecution might seek to limit the offences at the stage of making a charging decision, in order to ensure confiscation would follow in the event of a conviction. There is no suggestion that the prosecution do in fact act in this way.

In this particular case, the prosecution calculated the benefit figure by reference to the income support overpayments commencing after POCA 2002 came into force. In any event, the Supreme Court decided that there would be no unfairness to a defendant if the prosecution selected which offences to rely upon for the confiscation process.

What was the background?

The appellants were convicted of offences of making fraudulent benefit claims whereby they had both dishonestly represented to be unmarried individuals, when they were in fact married to each other. Both appellants had pleaded guilty to several counts at Derry Crown Court. The majority of the offences were committed after the commencement of POCA 2002, except one in respect of each appellant.

The prosecution sought to confiscate the benefit of the appellants’ criminal conduct through confiscation proceedings pursuant to POCA 2002, s 156. The confiscation proceedings were pursued in respect of the offences committed after the commencement date. The Crown Court made the confiscation orders and appellants appealed to the Northern Ireland Court of Appeal, arguing that, because one of the offences was outside the scope of POCA 2002, then none of the offences ought to fall within the remit of that statute.

On its face, the wording of SI 2003/333, art 4(1), is as follows:

‘Section 156 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 156(2) was committed before 24 March 2003’ (emphasis added).

The appellants sought to construe the wording of SI 2003/333 such that, where there was more than one offence committed and one or more occurred prior to the commencement order, then confiscation proceedings could not be brought in relation to any of the offences. They further argued that where there was ambiguity in the wording, it ought to be construed in their favour or it would create unfairness.

The Court of Appeal refused permission to appeal, but certified the case as having a point of law as being of public general importance, and the Supreme Court gave permission to appeal.

What did the Supreme Court decide?

The Supreme Court dismissed the appeal by a majority of three to two and upheld the decision of the Court of Appeal.

Lord Kerr gave the leading judgment, stating that it must have been Parliament’s intention that offences committed before the commencement date should not be included in the POCA 2002, s 156 consideration, while offences committed after that date, which were within the scope of POCA 2002, should be dealt with under POCA 2002. He observed that Parliament could not have intended that offences committed after the commencement date should be removed from POCA 2002’s purview simply because the defendant had also been convicted of an associated offence before that date.

Lady Black and Lord Hughes agreed.

Lord Reed gave a dissenting judgment, with which Lord Mance agreed, stating that the majority had given a purposive interpretation to the statute, but the statute did not have the purpose which the majority attributed to it.

Interviewed by Robert Matthews.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.


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