Kennedy Talbot QC and Barry Stancombe consider whether PoCA hearings can be heard remotely under Coronavirus Act
Confiscation and PoCA - Buttering Parsnips during Lockdown
This article examines whether Proceeds of Crime Act 2002 proceedings, particularly confiscation proceedings following conviction, may be conducted virtually. In particular, the effect of the Coronavirus Act 2020 on the ability of the court to hold such hearings in the absence of the defendant.
Principles
Social distancing restrictions affect the normal administration of justice in open court in the presence of the parties and the public. This engages two main principles. First, open justice. And second, the right of the parties - and often in a criminal context, the requirement of the defendant - to be present.
Open justice is a fundamental principle at common law. As Lord Toulson put it in Guardian News and Media [2013] QB 618:
“Open Justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? ... In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.”
Similarly under article 6 of the European Convention of Human Rights, obligations in civil and criminal proceedings must be determined in a public hearing. This does not mean that all decisions by a court at every stage of every case must be determined in public. Generally, where there is no substantive factual or legal issue for resolution, the questions which the court is required to answer are limited in scope and there is no wider public interest, proceedings may be determined administratively without a hearing (see the authorities cited in Malik [2007] 1 WLR 2455).
So in civil cases in the civil courts, para 8 of the Civil Justice in England and Wales Protocol Regarding Remote Hearings (26 March 2020) explains:
8…. remote hearings should, so far as possible, still be public hearings. This can be achieved in a number of ways: (a) one person (whether judge, clerk or official) relaying the audio and (if available) video of the hearing to an open court room; (b) allowing a media representative to log in to the remote hearing; and/or (c) live streaming of the hearing over the internet, where broadcasting hearings is authorised in legislation (such as the new s85A recently inserted into the Courts Act 2003). The principles of open justice remain paramount.
Similarly, the Criminal Practice Direction 2015 (as amended) at section 3N explains that trials must be conducted in a court room but pre trial hearings do not need to be. Where the hearing is one where principles of open justice apply, there must be a means by which the proceedings can be observed (so relayed through a court room or equivalent to which members of the public have access). But if the hearing is administrative, it may be conducted entirely virtually.
The Practice Direction also explains that it is not inherently unlawful or incompatible with the rule of law or the ECHR for the court to use video and audio links as an aid to conduct a hearing. Unless a statutory provision or rule provides otherwise, any participant in a hearing (even a member of the court) may appear by a link.
There is therefore nothing incompatible with common law principles or article 6 for the court to conduct hearings virtually to which the public have access. Further pre-trial proceedings, setting timetables, making orders for exchange of statements or the provision of information may be conducted administratively (without any hearing) or virtually.
Sentencing Generally
Self evidently, the passing of a sentence is not an administrative process. Principles of open justice apply both at common law and under article 6 requiring it to be conducted with full public scrutiny. Further, there is a general right for the defendant to be present. See for example the House of Lords in Hammond v Home Secretary [2006] 1 AC 603 at paragraph 16.
“It is plain beyond argument that the imposition of sentence at first instance is part of a criminal trial and ought in any ordinary case to take place in public at a hearing at which the defendant is present and represented and able to participate.”
To deal with this latter issue (the presence of the defendant), the Crime and Disorder Act 1998 introduced powers for the court to pass sentence in the physical absence of the defendant. Under sections 57A and 57D or 57E of the Crime and Disorder Act 1998 (“the CDA”) the court may pass sentence on a defendant in custody who attends by live link. The court may allow a defendant who is not in custody and who wishes to attend his or her sentencing by live link to do so by such means.
Proceeds of Crime Act 2002 confiscation and related proceedings.
So where does that leave PoCA proceedings, particularly confiscation proceedings following conviction? Are they part of sentence to which the above principles apply? And in particular how are they affected by the Coronavirus Act 2020 (“the 2020 Act”) which extends the scope of the CDA to hold virtual hearings in the physical absence of the defendant?
Generally, although confiscation hearings carry many characteristics of civil proceedings (inter alia reduced standard of proof, compulsory disclosure and order for the payment of a sum of money), at common law and under article 6, since they are made on conviction they are regarded as part of sentence (see Rezvi [2003] 1 AC 1099 (House of Lords)).
However, an issue appears to have arisen as to whether the 2020 Act treats them as such for the purpose of the extended powers to conduct virtual sentencing hearings.
A few weeks ago, Lord Burnett, the Lord Chief Justice, hailed the courts’ technical solution to the coronavirus crisis.
During the hearing of a PoCA confiscation case at Southwark Crown Court earlier this month issues were raised from various sources that Judges perceive that there is such a lacuna in the new legislation.
On 6 April 2020, one of the Judges who deals with PoCA matters at Harrow Crown Court gave an hour-long remote seminar / presentation.
It is understood that the Judge’s view was that there is a lacuna in the 2020 Act insofar as POCA hearings are concerned. In her view “sentence” is defined too narrowly for them to fall within that category and they are not listed in the “eligible criminal proceedings”.
It was the Judge’s view that it would be preferable – for example in confiscation proceedings where all parties have agreed in writing to the extension of a deadline for confiscation to be granted – for that and any other proposed orders to be put before a judge as an administrative application, and be granted administratively rather than at a remote hearing. That would avoid a challenge later down the line that the court had no power to deal with the confiscation hearing remotely. However, it is worth observing that generally a failure to observe the requirements imposed by the general common law, article 6 or even the 2020 Act is unlikely to render any order made unlawful and liable to be quashed on appeal (see for example Cox [2019] 4 WLR 88 where the Court of Appeal refused to quash a variation to a sentence which should have been conducted in a public hearing rather than administratively).
Further, there is nothing in PoCA which requires the defendant to be present for confiscation proceedings. Indeed if confiscation proceedings are postponed under PoCA and the court otherwise deals with the defendant, there is probably no power to require the defendant to surrender to custody or be present at a confiscation hearing. No doubt, in accordance with the general principles explained above, the defendant ought to be able to exercise a right to be present, but if for good reason he cannot be, a confiscation order made in his absence is not unlawful. A stark example is Baybasin [2014] EWCA Crim 2536, where the defendant was deported and could not attend court. Efforts were made by the prosecution to set up a video link for him to be present, but these failed. The confiscation order made in his (involuntary) absence was upheld by the Court of Appeal.
None of this means that the courts should not ensure there is compliance with legal requirements. The issue is to identify what they are.
As a result, the leading prosecution agencies have been actively considering this legislation and its impact.
The impact of any lacuna in the recent legislation would most likely be felt in confiscation proceedings as CrimPR r 33.34 provides that applications in restraint and receivership proceedings are to be dealt with without a hearing unless the Crown Court orders otherwise. However, in complex contested restraint and receivership cases a hearing is normally ordered.
The provisions of the 2020 Act which came into effect on 25 March 2020, make temporary modifications to existing legislation, so as to enable the use of technology either in video/audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities. Their purpose is to enable the defendant to be present, even though he appears by audio or video link.
The new statutory provisions are arranged in two groups, one dealing with trials, appeals and certain other hearings (by amendments to the Criminal Justice Act 2003 (CJA 2003) (Schedule 23 of the 2020 Act), and the other with preliminary, sentencing and enforcement hearings (by amendments to the CDA) (Schedule 24 of the 2020 Act).
Preliminary hearing – is defined in section 57A CDA
Sentencing hearing – is defined in section 57A CDA
Eligible criminal proceedings – is defined in section 51(2) CJA 2003
Enforcement hearings relating to confiscation orders are expressly referred to in s.57A (1) CDA.
“Sentencing hearing” means any hearing following conviction which is held for the purpose of—
• proceedings (in a magistrates' court) relating to committal to the Crown Court for sentencing; or
• sentencing the offender or determining how the court should deal with him in respect of the offence (including reviewing, amending or revoking such a sentence or determination); or
• determining—
(i) how the offender has complied with a sentence given in respect of the offence, or
(ii) how the offender should be dealt with in respect of compliance with such a sentence;
and here “sentence” includes any way in which a court has determined that the offender should be dealt with in respect of the offence.
It is settled jurisprudence that confiscation proceedings are part of the sentencing process. And, in the joint view of the authors, this statutory definition of “sentencing” is broad enough to include confiscation proceedings.
According to s.57A, a sentence includes “a way in which a court has determined that the offender should be dealt with in respect of the offence”. A confiscation order can only be made on conviction and the Court of Appeal in R v Johnson (1991) 2 Q.B. 249 clearly explained that these words (in that case, in the Criminal Appeal Act 1968) meant confiscation was part of sentence. In Johnson, Neill LJ stated at pg 258-A:
“A confiscation order is an order made on conviction and can therefore be treated as part of the sentence”
Interestingly, that was a case under the old Drug Trafficking Offences Act 1986 where the DTOA said the court shall “before sentencing” deal with confiscation. In contradistinction, there are no words in PoCA specifying that confiscation is separate from sentence. Therefore, confiscation hearings (and variations) are covered by the CDA (as amended by the 2020 Act).
However, other PoCA proceedings such as restraint and receivership are not expressly mentioned in the Act. Presumably this is because such matters are usually dealt with on the papers, there is no requirement for the defendant to be present and if there was to be a contested hearing there is no “live evidence” or need for personal attendance by the parties. Such applications are normally dealt with on the witness statements as filed and without cross-examination.
To summarise:
A confiscation hearing when the court considers and makes a confiscation order is part of sentence. Therefore, it ought to be conducted in a manner which allows the hearing to be public (even if some participants are virtual).
At any such confiscation hearing, it is not a legal requirement for a defendant to be present. It is plainly desirable that he should be and the hearing should only proceed in his absence if there is good reason and the hearing can be conducted fairly.
Sections 57A – 57E of the Crime and Disorder Act 1998 (as temporarily amended by the Coronavirus Act 2020) apply to confiscation hearings (including variations under the various provisions of PoCA), so if the court decides the defendant ought to be present, he may appear through the audio and video link procedure laid down in the 2020 Act.
Any failure to comply with these requirements would not (per se) render a confiscation order made unlawful or a nullity.
Some preparatory and other PoCA hearings may be conducted administratively without any hearing at all.
So, until the pandemic runs its course, the courts can, at a time when trials are not being heard, safely deal with all such PoCA confiscation work remotely under the 2020 Act and all other PoCA work under its existing case management powers.