R v McCool
| Jurisdiction | Northern Ireland |
| Judge | Lord Kerr,Lord Hughes,Lady Black,Lord Reed,Lord Mance |
| Judgment Date | 02 May 2018 |
| Neutral Citation | [2018] UKSC 23 |
| Court | Supreme Court |
| Date | 02 May 2018 |
[2018] UKSC 23
Lord Mance, Deputy President
Lord Kerr
Lord Reed
Lord Hughes
Lady Black
Appellant (McCool)
Barry Macdonald QC
Dessie Hutton
(Instructed by Madden & Finucane)
Appellant (Harkin)
Fiona Doherty QC
Catherine Devlin
(Instructed by Madden & Finucane)
Respondent
Liam McCollum QC
Rosemary Walsh
(Instructed by Public Prosecution Service)
Heard on 23 November 2017
Part 4 of the Proceeds of Crime Act 2002 deals with the circumstances where benefits obtained by persons in Northern Ireland by their criminal activity can be confiscated. By virtue of article 2 of and the Schedule to the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003, Part 4 of the Act came into force on 24 March 2003.
The first and central provision in Part 4 of the Act is section 156. That section is declared in the statute to be concerned with the making of confiscation orders. Subsection (1) of section 156 expressly requires that the Crown Court must proceed in accordance with the terms of the section, where two conditions are satisfied. The context for the way in which confiscation orders are to be applied for and obtained is therefore set. That context, in my view, is defined by the consideration that it is confined to confiscation orders which can be made under the Act.
Subsections (2) and (3) of section 156 set out the two conditions foreshadowed in subsection 1. The first of these is that the defendant against whom a confiscation order is sought must either have been convicted of an offence or offences before the Crown Court or have been committed to the Crown Court in respect of an offence under section 218. There is an important rider to, or explanation of, the latter of these conditions. It is to the effect that the committal should have been with a view to a confiscation order being considered. This reinforces the nature of the context in which these provisions fall to be considered. The purpose of the committal is to deal with confiscation orders that might be made under the 2002 Act.
The terms of section 218(1) again emphasise this essential aspect. Subsection (1)(b) makes clear that committal should take place when the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 156. Thus, under this provision, the court is principally concerned with the making of a confiscation order under the 2002 Act. The magistrates' court must commit the defendant to the Crown Court if requested to do so — section 218(2)(a). But it may also, under section 218(2)(b), commit him in respect of other offences falling within subsection (3). Offences falling within the latter subsection are those of which the defendant has been convicted by the magistrates' or other court and where the magistrates' court has the power to deal with them.
Thus, offences in respect of which it is not proposed to seek a confiscation order may be referred to the Crown Court. It is not difficult to deduce the reason for that. It would not be unusual for a defendant to be charged with a number of offences, only some of which would qualify for applications for a confiscation order. For administrative convenience, and to avoid the possibility of over penalisation, it may be considered prudent to commit the defendant to the Crown Court for a comprehensive sentencing exercise.
The section 218(2) distinction between the two categories of case which the magistrates' court may commit to the Crown Court is significant: those offences which are committed so that a confiscation order can be considered and other offences in which the question of a confiscation order does not arise. The important theme, in relation to this case, is that the first category relates to offences in respect of which a confiscation order can be made under the Act. This reflects the general, underlying purpose of the legislation, so far as concerns confiscation orders. It is that, in the first and principal instance, the cases which are to be dealt with by the Crown Court are those in respect of which a confiscation order under the 2002 Act can be made. The provision that a second type of case (the other offences category) can also be committed serves to demonstrate that the primary purpose of the Crown Court in dealing with cases emanating from the magistrates' court is to make confiscation orders which can be made under the Act.
Returning to section 156, the second condition which forms part of the enjoinder to the Crown Court to act is provided for in subsection (3). That condition is fulfilled where the prosecutor asks the court to proceed under the section or the court considers it is appropriate to do so. Both these alternatives are obviously geared to the making of confiscation orders that can be made under the Act.
The theme of facilitating or requiring the making of confiscation orders under the 2002 Act is again apparent from subsection (4) of section 156. The court is required to consider whether the defendant has a criminal lifestyle by subsection (4)(a) and, if it so decides, it must determine whether he has benefited from his general criminal conduct under subsection (4)(b). If the court decides that the defendant does not have a criminal lifestyle, it must consider whether he has benefited from particular criminal conduct — section 156(4)(c). All of these provisions have as their ultimate aim the ascertainment of whether a confiscation order under the Act is appropriate.
That basic objective is evident from the succeeding subsections (5) to (8) of section 156. These do not require to be set out, but subsection (9) is material for other reasons. It provides:
“References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).”
Drawing on the language used in this subsection and an allied provision, section 236(1), it is argued that the phrase, “the offence (or offences) concerned” is given a fixed and immutable meaning throughout the Act. (Section 236(1) provides that a reference to the offence (or offences) concerned must be construed in accordance with section 156(9)). Guidance as to that meaning is provided, it is suggested, by article 4 of the Commencement Order which provides:
“ Transitional provisions relating to confiscation orders — Northern Ireland
4(1) Section 156 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 156(2) was committed before 24 March 2003.”
In particular, the use of the words, “any of the offences” in article 4 is said to indicate that, if any of the offences on which a defendant has been committed predate 24 March 2003, none of the offences, even those which were committed after that date can be treated as candidates for confiscation orders under the 2002 Act but must be dealt with under legislation which applied on the date when the first offence occurred.
To say that this would produce a wholly anomalous result is not an exaggeration. This is particularly so since it is accepted by the appellants that, if the prosecution elects not to have a defendant committed to the Crown Court on a charge which might have warranted a confiscation order in respect of an offence committed before March 2003, and has the defendant committed only on offences committed after that date, it would be open to the Crown Court to make confiscation orders under the 2002 Act in respect of those offences. Likewise, it is accepted that in a case which starts in the Crown Court, if the prosecution chooses not to proceed on a charge relating to an offence committed before March 2003, a confiscation order may be made in relation to offences that occurred after 24 March 2003. In effect, therefore, the appellants accept that the jurisdiction of the court to make confiscation orders under the 2002 Act could be controlled by tactical decisions by the prosecution.
Ironically, the appellants object to what they portray as the election of the prosecution to proceed under the 2002 Act and to ignore offences to which they had pleaded guilty and which occurred before the relevant date, when pre- and post-24 March offences are proceeded with on the same indictment. They suggest that, in those circumstances, the prosecution should not be permitted to choose only the post-March offences on which to seek compensation orders. The respondent's riposte to this argument is, of course, that this is not a matter of election or choice. It submits that only offences which can be dealt with under the Act qualify for consideration as “confiscation offences”. It is therefore not a matter of tactical decision by the prosecution but, rather, the consequence of the correct construction of section 156.
The appellants counter this argument by pointing to, among other provisions, section 224(3)(b) of the Act. As noted at para 8 above, the court is required to consider whether the defendant has a criminal lifestyle by subsection (4)(a) of section 156. If it decides that the defendant does not have a criminal lifestyle, it must consider whether he has benefited from particular criminal conduct — section 156(4)(c). Section 224 deals with criminal conduct and benefit. Subsection (1) provides:
“Criminal conduct is conduct which —
(a) constitutes an offence in Northern Ireland, or
(b) would constitute such an offence if it occurred in Northern Ireland.”
A distinction is made between general criminal conduct and particular criminal conduct. General criminal conduct is dealt with in subsection (2). Particular...
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