The Claimant applied for permission to apply for judicial review of the decision of the Crown Court to issue various witness summonses upon the application of the private prosecutor in confiscation proceedings. The case touches on interesting and important issues as to confiscation proceedings and whether they are “criminal proceedings”, as well as the ability of a private prosecutor to obtain a witness summons in those proceedings.
The Facts
On 16 May 2023, the Claimant was convicted of fraud offences at Southwark Crown Court following a private prosecution in which Edmonds Marshall McMahon acted for the private prosecutor (the Interested Parties in the present claim for judicial review). Pursuant to s.6 of the Proceeds of Crime Act 2002 (“POCA”) the case proceeded to confiscation. The Claimant was required to comply with a s.18 POCA order to provide information in a witness statement, including particulars of all bank accounts held in his name or in relation to which he was an authorised signatory. The Claimant purported to comply by witness statement.
The s.18 order required the claimant to provide information for the relevant period (being six years from the date of charge). However, he provided information six years from the date of the .18 statement. As such, the Interested Parties served applications for witness summonses against eight different banks pursuant to s.2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (“the 1965 Act”). Each summons required the bank to produce in evidence bank records. The Claimant filed a claim for judicial review of the Crown Court’s decision to issue those summonses.
The Claimant’s case
Confiscation proceedings are not criminal proceedings
The primary ground advanced by the Claimant was whether the Crown Court had jurisdiction to issue the summonses in confiscation proceedings. This was based on the argument that s.2(1) of the 1965 Act requires the Crown Court satisfy itself that the respondent to the summons is likely to be able to produce a document “for the purpose of any criminal proceedings before the Crown Court”. The Claimant argued that “criminal proceedings” relate only to the determination of the criminal charges sent to the Crown Court. Relying on R v H [2003] UKHL [2003] 1 he submitted that confiscation proceedings are incidental to the determination of a criminal charge and the same applies to the sentencing process.
A private prosecutor is excluded from being able to apply for a witness summons
The Claimant referred to the case of R (Virgin Media Limited) v Zinga [2014] EWCA Crim 52 in which the Court of Appeal held that a private prosecutor can bring confiscation proceedings but said at paragraph 32 that POCA makes a distinction between those who can investigate and those who can prosecute. As such, the Claimant argued that a private prosecutor should be excluded from using s.2(1) of the 1965 Act as an investigatory power.
The Claimant said that a production order under POCA is not available to a private prosecutor and that in respect of confiscation proceedings, there are policy reasons why private prosecutors cannot apply for a production order. If a private prosecutor could obtain a s.2(1) witness summons, there would have been no purpose for the enactment of production order provisions under POCA.
Timing of the application
The Claimant also argued that the 1965 Act required the application for witness summons to be made as soon as reasonably practicable after service of the papers following sending for trial. The Claimant did not consider this had occurred and as a confiscation investigation proceeds alongside the substantive criminal proceedings, the application should have been made sooner.
The Response of the Interested Parties
The Interested Parties argued that the claim for judicial review should fail because (1) it was out of time, (2) the claim concerned a matter relating to trial on indictment and thus it did not fall within the supervisory jurisdiction of the Court and (3) judicial review is a remedy of last resort and there was an alternative remedy available (namely, an application to set aside the summonses).
As to issue (2) the Interested Parties advanced the argument that a matter relating to trial on indictment can only be subject to judicial review if the Crown Court has acted outside of its jurisdiction, which did not occur. The words “criminal proceedings” in the 1965 Act were not limited and did not restrict the power to issue a witness summons after the point of conviction.
The decision
The two issues the Court considered at length were (1) whether the claim related to a trial on indictment and therefore was outside their supervisory power, as the Interested Parties advanced, and (2) whether the Crown Court had jurisdiction to issue the summons, the primary ground on which the Claimant relied.
Trial on Indictment
The Court immediately excluded their jurisdiction to intervene on the basis that this was a matter relating to a trial on indictment.
Section 29(3) of the Senior Courts Act 1981 (the “SCA”) provides:
“In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders as the High Court possesses in relation to the jurisdiction of an inferior court.”
The Court referred to what was said in R v Smalley [1985] AC 622 (a case which pre-dated the existence of confiscation proceedings) by the House of Lords:
“….section 29(3) is apt to exclude….judicial review in relation to the verdict given or sentence passed at the conclusion of a trial on indictment, both of which are subject to appeal as provided by the Criminal Appeal Act 1968.”
The High Court rejected the Claimant’s argument that because the trial had concluded, and sentence had been passed his claim was not excluded by s.29(3) of the SCA. R v Zinga [2014] 1 WLR 2228 makes clear that confiscation proceedings form part of the sentencing process, and this was reiterated. A defendant can appeal a confiscation order to the Court of Appeal, Criminal Division and therefore any decision made in the course of confiscation proceedings may be the subject of an appeal if it impacts the propriety of the confiscation order. The Court concluded that the issue of a witness summons in the course of confiscation proceedings was an integral part of the trial process in its wider sense.
Did the Crown Court act outside its jurisdiction
If the Crown Court acted outside its jurisdiction in issuing the witness summons, then s.29(3) of the SCA would not apply and the High Court acting in its administrative jurisdiction could intervene despite the matter relating to a trial on indictment.
Referring to R (TM Eye) v Southampton Crown Court [2021] EWHC 2624 (Admin) [2022] 1 Cr App R 6 at [68] to [73], the Court reiterated the relevant principles:
“If the judge in the Crown Court has no jurisdiction to make the order they purport to make, the decision may be amenable to judicial review; the jurisdictional error must be of substantial gravity; there is a distinction between an order made without jurisdiction and a mistaken exercise of jurisdiction; there will be cases where it is difficult to say which side of the line the decision falls.”
Section 2(1)(a) of the 1965 Act says:
“(1) This section applies where the Crown Court is satisfied that—
(a) a person is likely to be able to give evidence likely to be material evidence, or produce any document or thing likely to be material evidence, for the purpose of any criminal proceedings before the Crown Court, and
(b) it is in the interests of justice to issue a summons under this section to secure the attendance of that person to give evidence or to produce the document or thing.”
The Claimant argued that the Crown Court’s power to issue a witness summons pursuant to s.2 of the 1965 Act ceases once a criminal charge has been determined. Therefore, “criminal proceedings” is limited to determination of a criminal charge. The Court did not agree and was satisfied that “criminal proceedings” is not restrictive but connotes the widest possible meaning of the term. Confiscation proceedings are criminal proceedings.
The ability of a private prosecutor to obtain a witness summons
The Court was satisfied that the Claimant’s proposition that there are policy reasons for preventing a private individual from using s.2 of the 1965 Act was ill-conceived and that the argument that the Interested Parties used the 1965 Act for a purpose for which it was not intended was “baseless”. It said:
“The terms of section 2(1) of the Act are clear. If the Crown Court is satisfied that what is sought is likely to be material evidence in any criminal proceedings, a witness summons will be issued “if it is in the interests justice” to do so. Thus, the Crown Court has to reach an evaluative judgment in relation to the evidence sought and thereafter to stand back and consider the interests of justice. There is nothing in section 2(1) which shows that it was not intended to be used by a party to the proceedings in the course of the sentencing process.”
The Court further stated that the Claimant gained no support from Zinga. The Interested Parties were not using investigatory powers when they applied for witness summonses. They were seeking to obtain evidence likely to be material in relation to the Claimant’s criminal conduct and/or his available assets.
Timing of application for witness summonses
As to the Claimant’s argument that the witness summonses were not applied for as soon as reasonably practicable, the Court said that though restraint proceedings can and frequently do begin at an early stage, as the trial is in progress or before the trial begins, confiscation proceedings cannot begin until after conviction. In many cases that will be the point at which the gathering of evidence will commence. In this case the timing of the application was dependent on service of the s.18 POCA statement after which point the summons applications were made when it was apparent that there was a need to.
Conclusion
Ultimately, there was no arguable claim for judicial review of the decision of the Crown Court. Permission to apply for judicial review was refused. The case reiterates the following important principles:
- Confiscation proceedings are a matter relating to a trial on indictment and therefore the High Court in its administrative jurisdiction has no power to intervene in decisions of the Crown Court made in the course of those proceedings.
- “Criminal proceedings” in s.2 of the 1965 Act connotes the widest meaning of the term and certainly includes confiscation proceedings. The Crown Court therefore has jurisdiction to issue a witness summons in confiscation proceedings.
- A private prosecutor is not prohibited from using s.2 of the 1965 Act to apply for a witness summons.
- The time for applying for a witness summons is dependent on the circumstances of the case and there is no requirement that applications must be made prior to proceeding to confiscation.
Mai Holdom. July 2024.
