R v Nield

JurisdictionEngland & Wales
JudgeMR JUSTICE DAVID CLARKE
Judgment Date29 March 2007
Neutral Citation[2007] EWCA Crim 993
CourtCourt of Appeal (Criminal Division)
Date29 March 2007
Docket NumberNo: 2006/4164/B2

[2007] EWCA Crim 993

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Sitting at Manchester Crown Court

Crown Square

Manchester

M3 3FL

Before

The Vice President

(Lord Justice Latham)

Mr Justice Mckinnon

Mr Justice David Clarke

No: 2006/4164/B2

Regina
and
Paul Nield

MR S MAGUIRE (Solicitor Advocate) appeared on behalf of the APPELLANT

MR D FRIESNER appeared on behalf of the CROWN

MR JUSTICE DAVID CLARKE
1

On 9th February 2006 the appellant, Paul Anthony Nield, pleaded guilty to five offences of false accounting and other offences of dishonesty and was committed to the Crown Court for sentence. On 7th April 2006 in the Crown Court at Manchester, Minshull Street, before Mr Recorder Wright, the appellant was sentenced to intermittent custody. Confiscation proceedings ensued and on 17th July 2006 at the Crown Court before His Honour Judge Thomas QC a confiscation order was made under the Proceeds of Crime Act 2002 in the sum of £9,500 to be paid within six months or in default to serve six months' imprisonment consecutive. The appellant appeals against the confiscation order by leave of the single judge.

2

The facts of the underlying prosecution were that as company accountant for a company based in Hyde, in a position of trust therefore which gave him access to the company bank account, the appellant abused his position by using company funds to pay for personal expenses. The total sum involved amounted to £10,066.73.

3

The matter which causes the case to come on appeal is that by the date of sentence he had repaid the total sum lost by the company.

4

The course of the confiscation proceedings was as follows. On the date of sentence the Crown invited the judge to postpone determination and to order the appellant to serve a statement of his assets and means. There was a suggestion at that time by the Crown that once such information was provided if such a hearing was unnecessary an application could be made to have the case removed. But counsel made it quite clear that despite the repayment the court could order confiscation and he did not wish to give the court or the appellant any impression to the contrary.

5

The matter came before His Honour Judge Thomas on 16th June. On that occasion the Crown indicated that they intended to pursue the confiscation order because of the mandatory provisions of the Proceeds of Crime Act 2002, section 6. Counsel for the defence told the court that a Crown Prosecution Service lawyer had told him the previous day that such an application would not be pursued. The judge had some sympathy with the appellant's position and granted an adjournment to allow the defence to consider the position further. He directed a skeleton argument be served by 30th June.

6

On 17th July the case came back before the learned judge. Mr Maguire, then as now appearing for the appellant, had not served a skeleton argument. He said that that was because the Crown had not served upon him copies of the authorities upon which they intended to rely. The learned judge understandably found that an explanation which was unsatisfactory, having made the order. However, the proceedings continued.

7

The submission was made that because the losses had been recovered there was, by analogy with section 6(6) of the Proceeds of Crime Act, a power rather than a duty to make a confiscation order. The learned judge rejected that argument by reference to the precise terminology of the Act and indicated that the Crown were entitled to pursue the application and that there was no discretion in the court not to act upon it. Accordingly, the confiscation order was made and no issue arose about its amount.

8

It is submitted before us by the Crown in a skeleton argument that the order was made by consent, the judge having rejected the appellant's submission, but having considered the full transcript that does not seem to be so. What is clear, however, as we have indicated is that there was no issue about the amount of the order to be made.

9

It is not necessary for the purpose of this judgment to set out the full terms of section 6 of the Proceeds of Crime Act 2002, but it is right to comment that this section sets out a mandatory framework once the confiscation proceedings are triggered by an application by the prosecutor to proceed under this section. The only modification of the strict terms of the duty arises under subsection 6 of the Act which reads:

“But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct.”

10

The appellant seeks to persuade us as a matter of principle that since he has fully repaid the victim of his offences and did so before the date of sentence and before the confiscation proceedings were instituted, the confiscation proceedings should be stayed as being an abuse of the process of the court. No such argument was advanced before the judge. Reliance, however, is placed on a passage in the judgment of Thomas LJ in R v Mahmood and Shahin [2005] EWCA Crim. 2168, a case which concerned section 71 of the Criminal Justice Act 1998 but which for present purposes was in similar terms.

11

The passage relied on in that judgment is in paragraph 26 which refers to the discretion in principle to stay proceedings if what the Crown are proceeding to do amounts to an abuse of process. The learned Lord Justice went on:

“A hypothetical example illustrates the point. If, prior to the institution of confiscation proceedings, a defendant and the Crown had agreed, after full disclosure, that restitution would be made in a particular way and, pursuant to that agreement, restitution had been made, a judge would in the event of confiscation proceedings have power to stay proceedings that unjustly or without proper cause sought to go behind such an agreement.”

12

The difficulty with that submission in the present case, as Mr Maguire recognises once the difficulty is pointed out to him, is that in the present case the learned...

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7 cases
  • R v Paulet and Others
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 28 Julio 2009
    ...possible, without the burden of initiating proceedings. 44 Our attention has been drawn to what was described as a “conundrum” addressed in R v Nield [2007] EWCA Crim 992. The court grappled with the following question: “If confiscation is to be tempered by the existence of an expectation o......
  • R v John Reginald David Morgan and Another
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 20 Junio 2008
    ...was rightly made by the Crown.” The same was accepted in R v Hockey [2007] EWCA Crim 1577; [2008] 1 Cr App R (S) 50 at 279, paragraph 18, R v Nield [2007] EWCA Crim 993, and R v Farquhar (supra) at paragraph 27 In none of those cases was abuse of process in fact established. The particula......
  • R v Mohammed Shabir
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 31 Julio 2008
    ...was rightly made by the Crown.” The same was accepted in R v Hockey [2007] EWCA Crim 1577; [2008] 1 Cr App R (S) 50 at 279, paragraph 18, R v Nield [2007] EWCA Crim 993, R v Farquhar (supra) at paragraph 12 and R v Morgan and Bygrave [2008] EWCA Crim 23 This jurisdiction must be exercise......
  • R v Hockey (Terence John)
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 12 Junio 2007
    ...be made. 25 It is not disputed that the sum of almost £300,000 did come within the definition of “benefit” under the Act. Recently in R v Nield [2007] EWCA Crim 993 this court explained the effect of section 6: “9. It is not necessary for the purpose of this judgment to set out the full te......
  • Request a trial to view additional results

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