England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR JACK BEATSON QC
(Sitting as a Deputy Judge of the High Court)

		Royal Courts of Justice Strand London WC2 Monday, 15th April 2002

1. LORD JUSTICE JUDGE: This is an appeal against an order made by Mr Beatson QC, sitting as a Deputy Judge of the High Court, on 12th September 2001 refusing to vary a restraint and disclosure order made under the Criminal Justice Act 1988 on 23rd March by the deletion of paragraph 3 from it. The restraint order was made in the usual form on application and undertakings by HM Customs and Excise, on the basis that the appellant was involved in laundering proceeds of crime, more particularly, substantial VAT fraud. Paragraph 3 reads:

"The defendant must

(i) inform HM Customs and Excise in writing within 72 hours of service of this order on the defendant of all his assets whether inside or outside England and Wales and whether in his own name or not and whether solely or jointly owned, giving the value, location and details of all such assets.

(ii) confirm the information in a witness statement which must be verified by a statement of truth and served on HM Customs and Excise within 21 days after this order has been served on the defendant."

2. The argument before Mr Beatson was that paragraph 3 contravened the principle against self-incrimination. In a detailed judgment, after considering a large number of authorities, the judge rejected this argument.
3. The appeal followed. While the appeal was pending, on 8th January 2002 at Bristol Crown Court the defendant pleaded guilty to 7 counts in the indictment, all alleging that he assisted another to retain the proceeds of criminal conduct contrary to Section 93A (1) (a) of the Criminal Justice Act 1988. Sentence was adjourned until 19th April - that is next Friday. The Crown served a Standard Form Written Notice under Section 71 of the Criminal Justice Act 1988 together with a prosecution statement under Section 73. The appellant was allowed until 30th April to respond. No doubt on 19th April when he is sentenced a date will be organised for the hearing and determination of the confiscation proceedings.
4. On the basis that his client's conviction had fatally undermined his argument on self-incrimination and his reliance on Article 6.2 of the Convention, Mr Caldwell for the appellant abandoned all the grounds of appeal save one. This related to the possible use, or misuse, in the confiscation proceedings of any disclosure consequent on compliance with the order made in paragraph 3. He sought to advance a quite different argument to that advanced before Mr Beatson. This was based on the principle of general fairness of proceedings under Article 6.1 of the Convention and he derived some support from the hesitant doubts about the confiscation processes expressed in the European Court in Phillips, in particular in a passage at paragraph 46. We did not consider whether this doubt could properly survive the recent analysis of domestic provisions relating to confiscation orders by the House of Lords in, among other decisions, Revzi v Benjafield. Mr Caldwell was rather inclined to accept, and I certainly agree with him, that if there is any validity in his Phillips argument it can be deployed before the Crown Court during the confiscation proceedings. Without encouraging him to have any optimism on this point, that will give the appellant a proper and fair opportunity to advance any relevant contentions.
5. In those circumstances I do not believe there is anything which this court can now properly consider. It would be wholly artificial, post conviction, to attempt to decide the lawfulness or otherwise of the disclosure order - and paragraph 3 in particular -made by Mr Justice Harrison at a time when the presumption of innocence operated in the appellant's favour. The passage of time means that the appellant has been able to avoid compliance with the original order made long before he was convicted. The conviction itself tends, if no more, to demonstrate the justification for the order and its continuation in its original form.
6. The arguments against the order deployed before Mr Beatson no longer have any weight. We could only consider the order on a basis which was not argued below and, on any view, we could only consider one small manifestation of that order when it should sensibly be considered as a whole. In all these circumstances, in my judgment, the single part of the appeal which has survived abandonment should be dismissed.
7. LORD JUSTICE MAY: I agree. The appellant now having pleaded guilty, the appeal based on privilege against self-incrimination is withdrawn, unpromising as, on the face of it, it was. What remains is a very general submission that it is unfair in confiscation proceedings for a defendant to be required to make disclosure in the terms of paragraph 3 of the order in the present case. I am completely unpersuaded that this argument, in the circumstances of the present case, has any force. I agree that the appeal should be dismissed.
8. LORD JUSTICE PETER GIBSON: I agree with both judgments.
Order: Appeal dismissed