English and Welsh Courts - Miscellaneous

IN THE CROWN COURT
AT HARROW

		Hailsham Drive Headstone Lane Harrow Middlesex
		18th March 2008

1. JUDGE MOLE QC: This is an application by P for the confiscation proceedings against him under the Proceeds of Crime Act 2002 to be stayed as an abuse of the process of the Court. The making of this application and its grounds have already been foreshadowed in proceedings from this court, through the Court of Appeal, and to the gates of the House of Lords.
2. In a sentence, P says that he cannot have a fair trial of his confiscation proceedings because he cannot be adequately represented as the law prevents him for paying for his representation himself yet legal aid does not provide him sufficient funding to pay for the necessary representation.
3. I should say that, today, I have heard from P in person, both in submission and giving evidence on oath, and being cross-examined by Mr John Lofthouse for the prosecution. I shall be referring to some of the things that he has said to me today shortly.
4. On 4^th April, 2007, I heard and determined an application for the variation of a restraint order I made back in September, 2004. I refused the application and there was an appeal. (The neutral citation number was [2007] EWCA Crim 3128) In the judgment of the Court of Appeal in that matter, Latham L.J. set out the basic facts and issues at paragraphs 8 to 12. I think it would be useful to set the scene for this application by simply quoting what was said there. I am starting at paragraph 8.

"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 3^rd September, 2004. The appellant was sentenced on 29^th 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 7^th November, 2005. That was transferred to his present solicitors in 2006."

"9. In a witness statement dated 16^th 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 4^th 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 [2005] 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."

5. The Court of Appeal went on to consider the matter and the arguments. I interpose to add to those facts that it is alleged by the Crown that P has benefited to the extent of well over £4.5 million, and has identified assets available for confiscation which are worth - and this is, obviously, a figure that is open to change in both directions - as last valued, of the order of £1.5 million.
6. The Court of Appeal went on in paragraph 19 to say this, referring to the submissions of Mr Farrah:

"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 [2002] QB 48.)"

The Court then goes on to consider those matters.

7. I turn on to paragraph 24 where the Court continued:

"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.

8. The Court of Appeal certified that a point of law of public importance was involved but refused leave to appeal to the House of Lords. Leave was applied for. Lord Bingham of Cornhill, the chairman of the Appeal Committee, invited the respondents to answer the following question, and I quote it:

"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)."

9. The matter thus returns to me. P is unrepresented, although he is assisted by Mr Jansen Versfeld of Morgan Rose. He has submitted a brief skeleton, which I believe he has prepared with the assistance of his solicitors, and he has read out submissions to me, both in opening the matter and in closing it.
10. He has, as I have said, given evidence on oath from the witness-box and been cross-examined. Mr Versfeld has put in a statement of truth, in support of his factual submissions and, between them, the following points are made.
11. First of all that P is left without any sufficient representation. Mr Versfeld says that since the previous statement of truth, which was the one I took into account on the s.41 hearing, he has made further efforts to contact counsel.
12. He has done so particularly bearing in mind my comment at the time that I hoped and expected that there might be young counsel out there who would be prepared to try and make a name for themselves by taking on a case, for not much money, that would be rather more challenging than they would normally expect to be instructed in. Mr Versfeld tells me that between October 2007, and February 2008 he has contacted a total of 18 sets of barristers' chambers in London, Leeds, and Sheffield to see whether or not there would be the possibility of instructing barristers for this case at a daily rate of £178.25. He tells me that no chambers were able to put forward counsel of sufficient experience and he sets out the responses of the senior clerks he approached. In answer to my expressed hope that very junior counsel might be prepared to do the case, Mr Versfeld points out to me, as did several senior clerks to him, that it would be contrary to the Bar Code of Conduct for a barrister to accept instructions in a a matter which he lacks the experience or competence to handle. I have been referred to a number of passages in the Code of Conduct. I particularly note paragraph 603 of part VI of the code of conduct, which seems to me to confirm Mr Versfeld's point.
13. As for his own position, Mr Versfeld says that he believes that the case of R -v- Ulcay [2007] EWCA Crim 2379 prevents him from withdrawing from the case. He does not regard himself as competent to act as advocate, even if it was possible for me to permit him to do so, and he could not act as such. He tells me he is prohibited by the Solicitors' Code of Conduct and inhibited by the view of the partners at Morgan Rose that, were he to do so, he would not be covered by their policy of insurance. Nonetheless, he has, today, sat beside P and assisted him with advice as best he can.
14. Secondly, the point is made by Mr Versfeld that he knows of no case of confiscation proceedings that has gone to a full trial of the issues in which the defendant has been unrepresented. I must say that I, also, know of no case and Mr Lofthouse knows of none either. We all, of course, rush to acknowledge that it may well have happened without our knowing. But, at least, so far as we know, there has been no such case.
15. Thirdly, the point is made that the burden of proof would lie on P in these confiscation proceedings. This situation is contrasted with a jury trial where a defendant can simply call upon the prosecution to prove its case and confine his efforts to responding to that in an endeavour to ensure that they fail to do so.
16. Mr Versfeld, distinguishes those situations where a defendant is unrepresented, either because that is his wish or because he loses his representations in an effort to manipulate the trial process. The case of Ulcay, to which I have briefly referred, is a case of manipulation. In such circumstances, it is evident that the courts have little or no sympathy for a defendant who by such manoeuvrings or of his own choice winds up without representation. In those circumstances the Court has no choice but to ensure that the trial is as fair as it can be made in the circumstances. Here, on the other hand, says Mr Versfeld, P is unrepresented through no fault of his own.
17. I accept that insofar as it has been suggested that had he acted at the right moment the situation might not have arisen P can hardly be blamed for losing his representation. P's situation is that he says, and has repeated in evidence to me, that he wishes to be represented. He has made that plain throughout. It is of some significance that he was privately represented for a period of time. I shall return to the reasons for that later.
18. Fifthly, it is argued by Mr Versfeld in his statement of truth and by P, that this is a complex case. I have already found that it is. Nothing has caused me to change that view. I have already said that it involves some 4,558 transactions and many documents. It involves quite complicated issues upon which, it is true to say, counsel have already spent not a little time in discussion, not always with a huge amount of result,which may itself be of some significance. But notes have been prepared and the 'double counting note' is one that has been drawn to my attention yet again as an example.
19. This note from the prosecution deals with the question of whether, if a sum is seen to move through three or four bank accounts, it is right to count it as three or four different sums of money in the assessment of benefit or, whether or not it is right to regard it, simply, as one sum of money moving through three or four bank accounts. As an illustration of the sort of problem that P may have to face, the note says, in paragraph 4, that the law is Draconian. One may be treated as having a benefit, even when nothing "in lay terms" has been received. Authority is given for that. Examples are worked through. (paragraphs 7.1 to 7.3.) The problem is to be solved in the prosecution's view in the following way. The prosecution says the Court is to avoid injustice by treating every receipt within the definition as a benefit but then assessing whether that benefit is one truly intended to be caught by the legislation.
20. With reference to the documentation, and the degree to which it needs to be considered, I remark that in addition to the extremely helpful skeletons that I received from both parties, with substantial numbers of authorities - all of which I have read - I have also received a bundle of documentation, with a covering letter dated, 29^th February, 2008, which said - and this may give the flavour of the documentation for this case -

"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 6_r item 2_r pages 2169 to 2334."

21. The receipt of that volume of documents at this stage is, perhaps, some indication of the degree of complication that may lurk in this case. I accept, of course, as Mr Lofthouse says that we all know that in practice matters sometimes boil down a lot and issues after they have been explored at some length turn out to be not quite as complicated as originally thought, but able to be decided on a comparatively narrow issue. All I can say is that that may well prove to be so in this case but it has not happened yet.
22. The sixth point made by P and Mr Versfeld is this. The amount of the confiscation order that the prosecution are arguing for is well in excess of £1 million and that would usually attract a period of up to 10 years' imprisonment in default, if it were not paid.
23. The conclusion that both P and Mr Versfeld urge upon me is that P cannot have a fair trial of the confiscation issues.
24. Mr Lofthouse says in response, first of all, that the right is to a fair trial. The authorities make it plain that there is a right to a fair trial, both under the Common Law and under article 6(1) of the Convention of Human Rights. The authorities also make it plain that there is no specific right to counsel under Article 6(1), as might be found under article 6(3)c). (I will return to that shortly.) Mr Lofthouse says that it is for P to establish, on the balance of probabilities, that he cannot have a fair trial. He says that when I consider this particular point I ought to bear in mind the case of McLean and another v Buchanan [2001] 1 WLR 2425, because he says to me that that has the effect of raising the bar to such an extent that what has to be shown is not something proven simply on the balance of probabilities but, to use the words of Lord Hope of Craighead (at para. 37):

"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.

25. As for representation, Mr Lofthouse says that it is extremely relevant whether or not the lack of representation is the defendant's own fault or due to his own wish. This case is not quite that clear but there is an element of P's fault in it, says Mr Lofthouse. P was told unequivocally, by Judge Sanders, that he should go and get public funds. He did not do that in July 2005 when he was told to do so. Had he done so, he would not have fallen outside the then regulations and we would not be here, arguing about this now.
26. But, any way, says Mr Lofthouse - and this is a point he makes strongly, and made in cross-examination, what P has not done is to demonstrate adequately that he actually lacks the resources to pay for his own legal expenses at the moment.
27. He draws attention to the fact that somebody, somehow, is paying for his living expenses. He managed to go abroad and that had to be paid for. His daughter is at a private school and that has to be paid for. He has not taken advantage of the order which would permit him to withdraw up to £2,900 or so per month for his living expenses and, had he done that regularly, as he would have been permitted to do and might have been able to do, he would by now have had some £100,000 worth or more. While, of course, that money would have had to be paid on living expenses and could not have been expended on representation, it may be that those upon whom he had been relying to fund his legal expenses earlier, would have been more prepared to continue to do so, had P been funding his own living expenses.
28. Mr Lofthouse refers me to the case of M V Yorke Motors -v- Edwards [1982] 1 WLR 444. This is a House of Lords case which is concerned with judgment under Order 14 and the imposition of a condition that a sum of money was to be brought into court as a condition of granting leave to defend. What the House of Lords did in that case was to decide that a condition requiring the sum of £3,000 to be brought into court was not inappropriate, although £10,000 was excessive. Lord Diplock (at page 449) referred to the evidence that that Mr Edwards, who was the person who was required to bring the money into court, had been engaging in buying and selling second-hand motor vehicles on a cash basis. The Court of Appeal had pointed out that

"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."

29. All Mr Edwards, himself, had done was to swear that he did not have £12,000, nor any likelihood of raising that or any similar sum. The House of Lords said that the Court of Appeal was entitled to infer that it would not be impossible for Mr Edwards to find the one-off sum necessary as security to enable him to defend the Order 14 proceedings.
30. I have to say that that seems to be so different from the current circumstances that I do not find it particularly helpful. There is a world of difference between finding £3,000 in order to defend a claim, a one-off security, and the sort of level of commitment and extent of commitment that P would face.
31. There was a question as to whether or not P had contacted the bar pro-bono unit. I can deal with that very briefly. P produced in evidence two pages from the website that shows that members of the bar normally only act for three days at a time, because that is their commitment, and that the most that can be hoped is that a number of members of the bar may be prepared to aggregate their three days to make a longer period. That is, as I am not surprised to hear, a completely hopeless proposition for a case such as this. Mr Lofthouse, with his usual common sense, does not argue to the contrary.
32. Mr Lofthouse does say about this matter that it is not really particularly complex. It concerns matters that P, himself, must have known about. If what he says about his business activities is true, then he must have business skills. If what he says today is true, he must have presentational skills as well and those skills would mean that he is, perhaps, of above average competence and ability in presenting his case. He will have some support, no doubt valuable support, from Mr Versfeld. The strict rules of evidence do not apply and I can deal with the matter in a way that is flexible. The Court, he says, would be willing to adapt its procedures. Indeed I would do so.
33. He specified the following matters. First of all, I would get a feeling for what would be necessary. He, suggested, accurately, that I must have a clearer view of what is likely to be necessary, after having heard P give evidence and be cross-examined this morning. That is quite true: it would help adaptation to a degree.
34. The sort of thing that I might consider, he suggests, would be longer adjournments during the day so that P could seek Mr Versfeld's guidance. Perhaps issues could be put into writing. Extensive oral submissions could be minimised. This could be particularly helpful on the law. It might be helpful to sit less hours per day, recognising the greater difficulties P would face. Maybe even something approaching Maxwell hours would be appropriate. Days off from time to time to allow further consultation and research might be appropriate as well. The Court would be able, if it felt it appropriate, to bring down a guillotine upon debate on certain matters. It would be able to go further and, for example, direct the prosecution that certain issues be not raised. Thus the issues could be narrowed.
35. He acknowledges that, prompted I think by Mr Versfeld, that would mean that the procedure would be rather longer than it otherwise would have been. He balances this, by saying that he found it difficult to believe that the case would have taken as long as five weeks in any event. My view on that, having seen P give evidence, just on a simple point, is that the procedure would be likely to take every minute of six weeks and probably, substantially longer.
36. Mr Lofthouse points to the further reassurance I might derive from the existence of an appeal to the Court of Appeal, where P's funding would be on an ex post facto basis and would enable him to be properly represented.
37. Mr Lofthouse says is that, basically, the best approach, for which he derives support from McLean and Buchanan, is that I should get on with it and see how we manage.
38. Only if I am not minded to do that, should I turn to his final submission, in which he raises the possibility of a conditional stay as in the Canadian jurisdiction, where it is known as a Fisher or a Rowbotham order, whereby instead of simply staying the proceedings, the Court stays the proceedings until such time as counsel are properly funded. I shall have more to say about that interesting submission in a moment.
39. I want to say a little bit about the law in relation to confiscation proceedings, although I hope that this is well-known. The law is based upon s.6 of the Proceeds of Crime Act 2002. P has committed two offences to which he pleaded guilty, and the Court is proceeding under s.6 now. Under s.6(4) (a) The Court must decide whether or not P has a criminal lifestyle within s.75.
40. Those provisions will apply the lifestyle provisions, if he has committed an offence under schedule 2. The offences under schedule 2 include conspiracy to supply a controlled drug which, therefore, the prosecution certainly say, brings P under the criminal lifestyle provisions.
41. In that case the Court must make four assumptions in deciding whether or not P has benefited from his general criminal conduct and determining the amount of his benefit.
42. Those assumptions are set out in s.10 of the act. It is worth briefly recording what they are.

"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. "

43. It seems to me, that s.10(6) (a) puts at least an evidential burden of proof on the defendant to show that the assumption would be incorrect. The serious risk of injustice does not directly involve any burden but, of course, it is something that any defendant would wish to address, if he could, with evidence.
44. The purpose of, what is described as, the first stage, is to decide whether and to what degree the defendant has benefited. As I say, the prosecution say that this is to the tune of well over £4.5 million.
45. The second stage is to establish the recoverable amount. Here, the burden is certainly, under s.7, on the defendant to demonstrate, on the balance of probabilities, that the available amount is less than the benefit to him.
46. The appeals provisions are marginally surprising. Section 31 deals with certain appeals to the Court of Appeal. Under s.31, where the Crown Court makes a confiscation order, the prosecutor or the director may appeal to the Court of Appeal in respect of the order. Under s.32, the Court of Appeal is given wide powers to deal with the matter, including (s.32(2)) itself proceeding under s.6 and directing the Crown Court to proceed afresh under s.6.
47. I do note that that power of appeal is confined to the prosecutor or the director. The aggrieved defendant who wishes to appeal against a confiscation order must do so under the Criminal Appeal Act 1968, by virtue of s.9 and s.50 which makes a confiscation order a sentence for the purposes of appeal. Mr Lofthouse has taken me to the powers of the the Court of Appeal. It seems, on the strength of his researches and investigation of s.23 of the 1968 act, that the Court of Appeal probably has no power to order on an appeal by the defendant a retrial nor direct the Crown Court to proceed afresh under s.6. The contrast with s.31 might be thought strange. Mr Lofthouse submits that it may well be that the Court of Appeal could achieve very much the same sort of result. It would be surprising if it could not look at the evidence again and, in effect, rehear the matter if it wished to do so.
48. The first stage in the making of the confiscation order is the estimation of benefit. The second stage is the calculation of the amount to be recovered under the order. It is evident to me that the burden is on the defendant to displace the assumptions, just as it is to show that the amount actually available is less than the benefit.
49. I will not quote, but I very much have in mind what was said in the case of Barnham [2005] EWCA Crim 1049, particularly paragraph 40. I was also referred to Benjafield [2001] 3 WLR 75 Woolf LCJ. at para. 86, where he said-

"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."

50. He then turns to consider a number of issues, and points to the responsibility on the Crown Court not to make a confiscation order when there is a serious risk of injustice, the duty of the Court to stand back and decide whether there is such a risk, and the role of the Court of Appeal to ensure there is no unfairness.
51. The law in relation to an abuse of process application, is well-known. It is set out in Archbold at paragraph 4-54 of the 2008 edition. I particularly note in 4-55 that the jurisdiction to stay for abuse of process can be exercised in many different circumstances. Two main strands have been identified by the Court of Appeal in the authorities, namely

(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 [1994] 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."

52. The question whether the defendant would receive a fair trial was acknowledged to overlap with the guarantee of the right to a fair trial under article 6 of the European Convention on Human Rights. (Article 6 is set out, in Archbold at 16-57, page 1737.)
53. Article 6(1) reads:

"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."

54. The inadequacy of legal aid in connection with Article 6 reached the Privy Council in the case of McLean and Buchanan, which I have already referred to. It will be noted that this was a case in which s.6(3) (c was at issue. That actually was a case that involved two men charged with a criminal offence; they were fighting on board a motor fishing vessel.
55. In fact, the Court decided on the facts that it was not satisfied that they would suffer any prejudice. Lord Nicholls of Birkenhead (paragraph 1) sets out the relevant obligation of the state and records that there is no suggestion that either appellant has actually lacked for any proper effective legal assistance nor has either solicitor stated that he intends to withdraw from the case. So there is no good reason for believing that the appellants will lack proper and effective legal assistance. There was no reason to suppose that they would not receive a fair trial and they lost on the facts of that case.
56. The principle appears to be acknowledged that lack of representation can lead to a defendant being denied a fair trial in the right circumstances. I have already referred to a passage that Mr Lofthouse particularly wishes me to note, which shows that the threshold in these matters is a very high one.
57. I have referred to paragraph 37; In paragraph 38 Lord Hope said "J am not persuaded that it has being shown that the fixed fee regime will give rise to any actual or inevitable prejudice at the appellants' trial." That was the point upon which that matter turned.
58. That case is not directly relevant, however, because the case of Mackintosh and Lord Advocate [2001] 3 WLR 107, established that, for the purposes of article 6, confiscation proceedings were not to be categorised as being "Charged with a criminal offence" so as to engage article 6(2) or (3) but they did engage 6 (1). Lord Bingham set this out at paragraph 28 thus -

"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."

59. Although those are different provisions, the principle is the same in the English jurisdiction. Lord Steyn L. dealt with the matter in the case of Rezvi [2002] UKHL 1. at paragraph 13. He quoted the above passage from Lord Bingham and continued -

"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."

60. He goes on to outline the various different treaties and measures that the United Kingdom has ratified and signed to that end. He says (in paragraph 15)

"It is clear that the 1988 act was passed in furtherance of a legitimate aim and the measures are rationally connected with that aim."

61. He rejected the argument that the statutory means were wider than necessary to accomplish that objective, or that they were disproportionate. He also referred to the importance of the Court stepping back and seeing whether or not there might be a risk of serious or real injustice and if it so thought, not making the order.
62. It seems to me that the issue for me in all the facts and circumstances of this case is, does the probability that P will not be represented mean that he cannot have a fair trial, understanding that if I were to reach such a view, it would be a very rare and exceptional conclusion.
63. The first question is whether or not it is more probable than not that P will be without the assistance of counsel. I find as a fact he will. It is right that Mr Lofthouse has pointed out that P has not come forward with an estimated cost of representation, which could be reached no doubt with the help of Mr Versfeld, nor with a list of the inquiries he has made, nor a detailed statement of the assets he might be able to draw upon. I have heard what P had to say about that. It is fair to note that P has already paid for private representation. He certainly ought to have a good idea, therefore, of how much it is likely to cost him in the future. What he said on the spur of the moment in cross-examination might be a bit wide of the mark but it struck me as not so utterly wide of the mark as to show that he had not thought about the matter at all. Mr Versfeld certainly has been making inquiries on his behalf, as is apparent. I have no doubt that Mr Versfeld would be able to give P, should he ask for it, an accurate account of the sort of sum that would be necessary to budget for and, indeed, it would be something that any competent senior clerk would be able to tell him swiftly.
64. It seems to me that it is sufficient that P has, as a north American would call it, a 'ballpark figure' of the sort of cost that he might have to fund. As for any detailed statement of assets, P explains in his evidence that he had been funded to start off with. People had both lent him the money in the expectation of it being returned and others, I think, made gifts towards his legal expenses but, basically -and these are my words not his - the time had come when he felt that, or more likely they felt that they had had enough. To me, that seems entirely credible. This matter has gone on for a very long time with very little obvious result. It is credible to me that those who had been generous to P in the past, whatever their own wealth may be, have indicated to him that they are not prepared to go on being generous, so far as his legal costs are concerned.
65. It is true that P did not draw down against the restraint order for his living expenses as he might have done. Instead, he has lived, he told me, by being frugal and living either with his girlfriend in her property, or sometimes at his ex-wife's house. As for his daughter's education, her grandparents have been willing to pay for that.
66. He has been working round the country and often his expenses, he says, have been paid for by other people. In other words, he has not had to live particularly expensively. He is correct that what he could not have done would have been to have drawn down his living expenses and amass a sum from which he would then have diverted payments to finance his legal representation. The most that could be said is that it might have occurred to him that he might have used the fact that he was at least living at his own expense to lever some money from those who had previously been generous to him. I do not think that is a very significant point, frankly.
67. Having heard P, I accept his evidence that, firstly, he would be anxious to have his own representation if he could, and would be able to find the cost from the restrained funds. Secondly, that there is no serious prospect that the cost of a five to six week hearing would be found by the sources who had thus far been prepared to fund him. Thirdly, I find, as a matter of fact, that if P has to rely upon the legal aid fund, there is no prospect of him getting properly qualified counsel for the reasons that I have already set out.
68. I do not see any other way in which he could reasonably be expected to use the restrained property, or the generosity of friends and family to fund legal representation. I am driven to the conclusion that it is right to say that P is in a position where, if he does not get legal aid and funding from public sources, he will not be represented at all.
69. I was asked, rhetorically, by Mr Lofthouse if I really believed that if I insisted the case went ahead, P would really be unable to find the money to fund his legal representation. The answer to that is yes; however cynical I may be becoming in my old age, I do think that in this particular case it is more probable than not that P would not be able to fund his representation.
70. I do not see this to be a case where any significant blame can be attached to P for missing out on the legal aid money. Nor do I see this as being a situation where there has been any manipulation of the process. That is not to say that I do not, in these proceedings, think that P is quite intelligent enough to appreciate the potential benefit to him of stressing the difficulty of being able to fund his legal representation. He is quite able to understand that and will see the potential advantage of it to himself but that is not the same thing as saying that what he says is not true.
71. The significance of legal representation, it seems to me, has to be judged in the context of the particular proceeding. It has been recognised by the courts that confiscation proceedings, employing as they do harsh or draconian assumptions for a justifiable and proper purpose, are a considerable, if necessary, imposition upon the person who faces them.
72. The burden will be upon P to displace the assumptions throughout and to prove both that assets do not represent benefit and to prove whether or not they are truly realisable or not. Given that, having listened to P this morning and having heard him cross-examined I do not believe that, in the circumstances of this case, he can fairly be expected to deal with this matter on his own on the basis that he must know all the details and, if he is telling the truth, he must have enough wit to explain it all. I am not sure how much imagination or fantasy there is in P's account of his business matters. I have to say that it did not strike me that P's presentational skills were anything out of the ordinary. He is clearly a man of some intelligence. I acknowledge that many of the transactions under examination may turn out to stand or fall together, in the event. That said, the basic principle is that P will need to be prepared to deal with them all, at least in the first instance. In my judgment, it would be a very real burden to expect him to take it all on, unaided by counsel. It will involve some sophisticated technical accounting arguments, possibly some cross-examination of the same nature. My estimation of P, having heard him today, is that he will not be up to that difficult task. The case will involve some legal argument. Again, he will not be up to that. I do say in tribute to Mr Lofthouse, that I have every confidence that he would deal with the legal arguments with scrupulous fairness and would be anxious to make up any for any disability P would be under but that can only go so far, it seems to me.
73. P would not be in the same sort of position as somebody who is subject to a criminal charge, where he can simply challenge and explore the prosecution case. It is also a fact, and an important one, that if I were to make an order for a sum in excess of £1 million, which is what is being asked for, P would face imprisonment in default of up to 10 years if he did not pay it. That would be approximately four times longer than the sentence he has already served. It does not seem to me to be a good answer to say that will only be if he does not pay up what the Court will have found is available: the reason the Court may have found it to be available may be because, P has not, without the assistance of counsel, successfully been able to discharge the burden of proof that is upon him.
74. Nor do I see the ability to appeal to the Court of Appeal as a particularly compelling counter-balancing factor. The Court of Appeals' powers are wide and are not confined to a point of law, although quite how far they do extend on the application of the defendant seems to me to be a matter still to be resolved. The one thing that there is no doubt in my mind about is this that the Court of Appeal is not the appropriate forum to rehear a confiscation hearing that has gone awry because of the defendant's lack of representation below. It seems to me that it would be quite wrong for me to fail to grapple with the issue whether or not P can have a fair trial in this court because I see the Court of Appeal as some sort of a safety net, although, of course, it must not be ignored, just as Wolfe LCJ did not ignore it in the passage I have already quoted.
75. The argument that I should get on with it and see how it works out, keeping in mind the question whether or not P is getting a fair trial and knowing that I have a duty to stand back and satisfy myself that there is no injustice before I make the order, is an attractive one.
76. It does, however, have points that seriously concern me. I am concerned that the more time and effort that is invested in the trial, the more involved the Court becomes in the day to day running of issues and, the making of special arrangements to accommodate P, the harder it may become to step back and take a fully objective, clear-eyed look at the over-all fairness of the trial.
77. It may be difficult to resist the feeling that because the Court has done everything it can to make the trial as fair as it can, therefore it must actually be fair. That would seem to me to make the error of logic of equating the ability to receive a fair trial of a defendant who, by his actions, has made it impossible to be represented as he needs to be, with the ability to receive a fair trial of a defendant through, who no fault of his own, finds it impossible to be represented as he needs to be. It seems to me that those men ought not to be treated as being in the same position.
78. It would also make the mistake of failing to acknowledge properly the contribution that counsel would be capable of making to P's case at the trial of the issue. Rather than seek to articulate those potential benefits myself, I gratefully turn to the case of Dietrich -v- The Queen [1992] 177 CLR page 292. This is a decision of the seven judges of the High Court of Australia. It has been shown to me on the issue as to whether or not representation by counsel is essential to a fair trial and whether, in the absence of it, the Court should stay. That is set out in the head-note. This case turned on the Australian law. It is of interest and, indeed, some persuasive force but it is not of much assistance, it seems to me, on the point I have to decide. In the joint judgment of Mason C.J. and McHugh J. they expressed the importance of representation by counsel with much greater clarity and authority than I could manage and which I, therefore, gratefully take a few moments to read.
79. After an interesting account of the history of representation by counsel, the Court said this (Bottom of page 301.) .

"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."

80. The judges then make the point that the right to retain counsel and the right to have counsel provided at the expense of the state are two different things. Of course, in this case, P will have neither, I find.
81. I would simply add to what Sutherland J said about the judge's ability to help out my comment that how much more difficult, indeed impossible, is it for the judge to take on the role of defence counsel when it is the judge and not the jury who has to determine the facts, as in confiscation proceedings? It would be particularly difficult in such circumstances for the judge to extend any real "helping hand" to the accused.
82. The more difficult the position of the defendant appears to be, the bigger the problems his case faces, the more he needs proper representation by competent counsel. I might have found it rather easier to contemplate that P could have a fair trial without counsel if he faced narrow issues with, as it seemed to me at first examination, a reasonably apparent easy answer. That is not how I see his position.
83. I am driven to the conclusion, I have to say reluctantly, that in the exceptional, possibly unique situation of P, he cannot have a fair trial of this confiscation issue without representation by the counsel he wishes to have and, in my view, needs. To use the language of McLean and Buchanan, I do think it is inevitable that he will suffer real prejudice without the assistance of counsel.
84. Now this is not quite the end of the matter because Mr Lofthouse makes another very interesting submission to me, based upon authorities from the Canadian courts. The founding authority seems to be R -v- Rowbotham and others. (1988) 41 C.C.C,(3d) 1. This was a decision of the Ontario Court of Appeal, Judges of Appeal Martin, Corey and Grange. The essential point is summed up at page 69:

"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."

85. The Court says that, although they base that upon the charter of the state, they were of the view that the trial judge had the power to do that even before the advent of the charter; in other words, under the Common Law.
86. I have been taken to other cases, indeed, one decided but a month ago (R v Dadshani 2008 Can LII 4266), in which it is shown that the courts in Canada are prepared to make orders that stay proceedings until funding is provided for a defendant.
87. This is a very attractive proposition because, given the importance of a balance between the public interest and justice to the defendant, it is a neat solution to stay the proceedings and then say to the guardian of the public interest, the Lord Chancellor and Minister of Justice, "over to you. I have stayed this matter because without representation this man cannot have a fair trial. If you think that the public interest justifies it, please arrange to pay the necessary in order to ensure that he is properly represented. If you do not think that, then that is a political judgement that is entirely a matter for you." I find this an extremely seductive proposition. Mr Lofthouse has sought to persuade me that just as I have the inherent power to order a stay, I have the inherent power to order a conditional stay and if I did, adding such a condition, it might produce the satisfactory result.
88. I agree that, in principle, I may have the power to order a conditional stay. I am more doubtful about the prediction of a satisfactory result. Mr Lofthouse said that the Legal Services Commission is probably obliged to fund simply in accordance with an established fee system that leaves it no further discretion but, he says, there would be nothing to stop the Government through the Lord Chancellor and Minister of Justice drawing on some contingency fund to make a payment if that was thought the right think to do.
89. Without debating the point at length, I was shown the Access to Justice Act 1999, and regulation 22(a) made under it, which contemplates that payments may, in some circumstances, be made by the Lord Chancellor. That provision might enable payment to be made in these exceptional circumstances, it was submitted.
90. I think that would be a surprising result. Tempting though it is, I am not going to make an order that would not only be unheard of in this jurisdiction but may very well be wasted effort and do nothing but create more uncertainty for the parties. It seems to me that if the prosecution believes that I have wrongly excluded the possibility of a Rowbotham or Fisher order from consideration, then the remedy lies with the Court of Appeal. The Ministry of Justice can intervene in that appeal and the powers, or otherwise, of the
91. Government to accede to any such order, if it were made, can be explored. If it is thought that any such order is appropriate then the matter will be pronounced upon with authority by the Court of Appeal, not by myself sitting in the Harrow Crown Court.
92. I am driven back to the conclusion that this matter must be stayed for the reasons that I have given. I repeat that this is not a conclusion I reach with any satisfaction. I have to say that I certainly reach it without much sympathy for P. He has been convicted of serious offences and I entirely understand why it is alleged that he has a criminal lifestyle. I fully appreciate the statutory purpose behind the confiscation legislation as summarised by Lord Steyn and I fully understand the public interest in it. I know perfectly well from my years in the Crown Court that to those who make a living from their crimes the loss of some of the material property and the comfort that their criminal profits have brought them may be a much greater punishment and a much greater deterrent to them than the, perhaps not very long prison sentences they serve.
93. In other words, the principle underlying confiscation is a just one so long as the confiscation is carried out justly. The over-riding principle is, in my judgment, that for these serious matters, the defendant must be able to have a fair trial and in this case I am confident that he cannot, unrepresented by counsel. I, therefore, stay these proceedings as an abuse of the process of the Court.
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