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The Defendant appeared in person assisted by MR J VERSVELD
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"8. P was charged with aiding and abetting the wilful misconduct of a person in his office as a constable and one count of conspiracy to supply cannabis. He pleaded guilty to one count of aiding and abetting and to the conspiracy count. The offences were said to have been committed between January and March, 2004. A restraint order was made on 3rd September, 2004. The appellant was sentenced on 29th October, 2004, when confiscation proceedings were initiated. At that stage the appellant was paying his lawyers privately. In 2005 he applied to the Legal Services Commission for a representation order for the confiscation proceedings, which was granted on 7th November, 2005. That was transferred to his present solicitors in 2006."
"9. In a witness statement dated 16th March, 2007, made in support of the application for the restraint order to be varied to allow funding for legal representation, an assistant solicitor, Jansen Versfeld set out the basis for the appellant's claim. He pointed out that there was now extensive documentation, amounting to some 6,586 pages. Because the Crown was alleging that the appellant had a criminal lifestyle the appellant was, effectively, having to justify the movement of all money through his bank accounts which involved, it would appear, some 4,548 individual transactions. The size and complexion of the confiscation hearing had become such that experienced senior counsel would be necessary in order to be able to put the proceedings into a manageable form. The estimated length of the confiscation hearing was said to be six weeks.
10. The justification for the request for the variation which, prima facie, was precluded by s.41(4) of POCA was that the representation order had been granted at a time when the funding regime had changed so that the provision of fees for counsel was governed by the graduated fee regime. This restricted payment to counsel to £178.25 per day or £99.50 per half day, unless counsel were able to persuade those determining his claim after the event that the case required 'special preparation'. On the material before us, this could not be guaranteed. The consequence was that no barrister of remotely appropriate experience and ability had been prepared to take on the case from any of the six chambers that the appellant's solicitors had contacted.
11. His Honour Judge Mole heard the application to vary the restraint order on 4th April, 2007. The judge accepted that the proceedings were unusually complex and justified the employment of junior counsel of substantial experience. He was of the view that that was necessary, not only for the purpose of enabling the appellant to have proper representation but, also, to enable the Court to deal with the matter in a reasonable period of time. His conclusion was as follows:
"I would find as a fact that it is more likely than not that P will not be able to find counsel of the necessary skill and experience to represent him effectively, if that counsel is expected to be paid from public funds by a graduated fee of £178.25 day. "
"Putting it bluntly, if he must rely on public funding, he would not be adequately represented; that is, not adequately represented unless he is able to pay for his own representation because P, I am told, is happy, indeed, anxious to pay his own legal fees and, hence, the application that I amend the restraint order to permit him to do so. The answer to the application is, indeed, that I cannot do so. That is because of s.41."
12. "The judge considered that he was bound by the decision of this court in S (In Re S Restraint Order, Release of Assets  1 WLR 1338) which held that the prohibition applied fairly and squarely to restraint proceedings such as the present, and that there was no escape from the prohibition."
"Mr Farrah submits that the only real question is proportionality. The power to make a restraint order is acknowledged to be consequent on a measure which has a proper objective. He submits that that objective is to prevent dissipation of assets which should remain available to meet any confiscation order ultimately made. The steer contained in s.69(2) of POCA is a clear indication of Parliament's intent. And Parliament clearly intended, by extending public funding in the way it did, to ensure that public funding replaced the use of the defendant's own assets. The fact that there might have been other routes which could have been utilised to control the use of those assets, does not mean that the means chosen by Parliament was one which it was not entitled to choose in an area of social policy. The fact that there may be harsh results in some cases does not justify the conclusion that the measure is incompatible with Article 1 of the First Protocol, that could only be so if there was such a significant population of those unable to obtain representation, that there would be a clear systemic failure to provide the alternative which Parliament had considered appropriate. In any event where, in individual cases, the potential injustice arises, the Court can deal with that, if necessary, under Article 6. But that situation has not yet been reached."
20. In our view, Mr Farrah is correct. An important point not dealt with, at least, expressly, in any of the cases to which we have been referred, is that a restraint order relates to funds which the prosecution believe could well be the proceeds of crime. To permit, therefore, monies which could well be the proceeds of crime being used to pay lawyers for the benefit of the defendant, who is either suspected of being, or has been found to be, a criminal raises a clear social issue. Parliament, it seems to us, is entitled to take the view that funds which may have criminal origins should not be so used. Parliament had to take into account the consequences, namely that other means would have to be provided to enable defendants to have legal representation during restraint and confiscation proceedings. The course adopted was to provide state aid.
21. As to the adequacy of the aid provided Mr Farrah points out that the problem in this appellant's case arises out of the fact that the level of payment in relation to confiscation proceedings is based on the premise that counsel will have been instructed for the purposes of the criminal trial and so been appropriately remunerated at that stage. Whereas in his case there has in fact been a discontinuity in the representation. He asks us to note that the level of fees paid on the grant of representation orders is now substantially greater than the level payable on the representation order granted in the appellant's case. The problem is not that Parliament has failed to provide, in carrying out the balance to be struck between depriving the defendant of the right to use his own funds, and the provision of the state funds, a disproportionate solution; the problem is that in some atypical cases the level of funding provided under the state aid scheme does not, on the judge's findings, attract counsel of the requisite seniority. That issue may have to be addressed when the proceedings are heard, in the light of the appellant's rights under article 6. "
22. We agree. The fact that there may be hard cases as a result of a measure does not mean that that measure is incompatible with any convention rights: (See Poplar Housing Association Limited v Donaghue  QB 48.)"
The Court then goes on to consider those matters.
"In our judgment Parliament was entitled to make the choice it did, that is to conclude that it would be wrong to permit, until the determination of whether those funds were the result of criminal activity or not, such funds to be used for the purposes of providing legal representation, and that a defendant shall rely on the State instead. That choice could only be outside the parameters of permissible decision making if it could be said the state aid was illusory. In the case of individuals, it seems to us that the mere fact that in difficult cases such as that of this appellant it may prove difficult to attract a barrister of appropriate standing, does not mean that Parliament was not entitled to make that choice. As we have already said, if the result in truth does mean that the appellant, or someone in his position, cannot have a fair trial in Article 6 terms, that can be dealt with at the appropriate time."
The Court then turned to a different problem for a different defendant.
"Has the defendant any redress and if so what if the judge hearing the confiscation proceedings concludes that the defendant is inadequately represented, because the level of public funding available to him for instruction of counsel does not permit the instruction of counsel of sufficient experience to handle the proceedings effectively on his behalf, having regard to their length and complexity?"
The respondents made several points in answer. The heart of them lies in paragraph 17(4) where it was said:
"The remedy for the petitioner's complaint lies not in a declaration of incompatibility, but instead in the Crown Courts' inherent power to ensure its proceedings are fair and not an abuse of process."
That point was expanded upon and the respondents said:
"18(2) It is open to the petitioner to argue before the learned judge that, by reason of the inadequacy of his representation, he cannot have a fair hearing and that the proceedings should, therefore, be stayed as an abuse of process."
"18(3) However, in approaching this question, the Court must have regard to the following two matters: (a) a stay is an extreme remedy and should be sparingly used and (b) in deciding whether the petitioner can have a fair hearing, the proceedings must be assessed as a whole.
"18(4) It is submitted that, having regard to the following matters, the petitioner can have a fair hearing and that the proceedings ought not to be stayed. (a) A representation order has been made which will enable the petitioner to be represented by counsel (even if counsel is not as experienced as the petitioner and Learned Judge believe is appropriate); (b) "the Petitioner is represented by a solicitor; (c) The learned judge can take steps to ensure that the proceedings are conducted fairly. (d) the Petitioner may appeal against the making of any confiscation order (with leave) to the Court of Appeal (where different funding arrangements will apply)."
"J enclose herewith further papers in support of the prosecutor's statement in the above application under the Proceeds of Crime Act: Banking Schedules, volume 6r item 2r pages 2169 to 2334."
"What has to be shown is that some form of actual or inevitable prejudice will result" so that the Court cannot reach a fair verdict in all the circumstances.
"The fact that the man has no capital of his own does not mean that he can't raise any capital. He may have friends; he may have business associates; he may have relatives, all of whom can help him in his hour of need."
"The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him (a) as a result of his general criminal conduct and (b) at the earliest time he appears to hold it."
"The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him as a result of general criminal conduct and at the earliest time he seems to have held it."
"The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct."
"The fourth assumption is that for the purpose of valuing any property obtained or assumed to have been obtained by the defendant, he obtained it free of any other interests in it."
S.10(6) goes on to say-
"The Court must not make a required assumption in relation to a particular property or expenditure if (a) the assumption is shown to be incorrect or, there would be a serious risk of injustice if the assumption were made. "
"The onus which is placed upon the defendant is not an evidential one but a persuasive one, so that the defendant will be required to discharge the burden of proof ... this is, therefore, a situation where it is necessary to carefully consider whether the public interest in being able to confiscate the ill-gotten gains of criminals justifies the interference with the normal presumption of innocence.
"While the extent of the interference is substantial, Parliament has clearly made efforts to balance the interests of the defendant against that of the public in the following respects."
(a) where the defendant would not receive a fair trial and
(b) where it would be unfair for the defendant to be tried.
It is the former that, of course, applies in this case. There is then a reference to the well-known case of Horseferry Road Magistrate's Court  1 AC 42 in the House of Lords, where Lord Griffiths said that
"The Court had the power to interfere with the prosecution because the judiciary accepted a responsibility for the maintenance of the rule of law that embraced a willingness to oversee executive action and to refuse to countenance behaviour that threatened either basic human rights or the rule of law."
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing, within a reasonable time, by an independent and impartial tribunal established by law."
Of passing note are sub-paragraphs 2, which refers to the presumption of innocence, and sub-paragraph 3 (c) which reads:
"Everyone charged with a criminal offence"
- and I need to underline the words 'charged with a criminal offence' -
"Has the following minimum rights. (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."
"In concluding as I do that article 6(2) has no application to the prosecutor's application for a confiscation order, I would stress that the result is not to leave the respondent unprotected. He is entitled to all the protection afforded to him by article 6(1,) which applies at all stages, the Common Law of Scotland and the language of the statute. If the Court accedes to the application of a prosecutor under s.l(l) of the 1995 act, it will order an accused to pay "such sum as the Court thinks fit". In making a confiscation order, the Court must act with scrupulous fairness in making its assessment to ensure that neither the accused nor any third person suffers any injustice."
"It follows that in my view confiscation proceedings are part of the sentencing process following a conviction and do not involve a fresh criminal charge.
(14) It is a notorious fact that professional and habitual criminals frequently take steps to conceal their profits from crime. Effective but fair powers of confiscating the proceeds of crime are, therefore, essential. The provisions of the 1988 act are aimed at depriving such offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to deter the commission of further offences, and to reduce the profits available to fund further criminal enterprises. These objectives reflect not only national but international policy."
"It is clear that the 1988 act was passed in furtherance of a legitimate aim and the measures are rationally connected with that aim."
"The advantages of representation by counsel are even more clear today than they were in the nineteenth century. It is in the best interests not only of the accused but also of the administration of justice that an accused be so represented, particularly when the offence charged is serious. Lord Devlin stressed the importance of representation by counsel when he wrote
"Indeed, where there is no legal representation, and save in the exceptional case of the skilled litigant, the adversary system, whether or not it remains in theory, in practice breaks down." (The Judge, 1979, p 67)
An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown.
The hallowed response that in cases where the accused is unrepresented the judge becomes counsel for him or her, extending a 'helping hand' to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems.
As Sutherland J. stated in Powell -v- Alabama when delivering the judgment of the United States Supreme Court:
"But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defence, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional."
"In our view a trial judge confronted with an exceptional case where legal aid has been refused and who is of the opinion that representation of the accused by counsel is essential to a fair trial may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided."