R v Hilton - (01 Jul 2020)

Third parties must be afforded the chance to make representations at the stage of making the confiscation order

Criminal

On 22 September, 2015 Bernadette Hilton was convicted of three offences contrary to Section 105A of the Social Security Administration (Northern Ireland) Act, 1972. Following conviction, Ms Hilton was committed to the Crown Court and that court was asked to make a confiscation order under Section 156 of the Proceeds of Crime Act, 2002.

The application was heard by His Honour Judge Miller QC. He made a confiscation order in respect of £10,263.50, which was the equivalent of Ms Hilton’s half share of her matrimonial home. Ms Hilton appealed against the order. The Court of Appeal decided that Section 160A(2) of the Proceeds of Crime Act, 2002 required that, at the time of making a confiscation order, the Crown Court must give to anyone who is thought to hold an interest in the property an opportunity to make representations on whether a confiscation order should be made and, if so, in what amount. The failure to give Ms Hilton’s estranged partner and the building society the chance to make representations was “fatal to the decision of the judge” and the confiscation order was thus invalid. The Director of Public Prosecution appeals to this Court.

Where the court makes a Section 160A of Act, 2002 determination, third parties must be afforded the chance to make representations at the stage of making the confiscation order, as provided for by of Act, 2002. But where the court does not make a Section 160A of Act, 2002 determination and rather simply forms a view, at this first stage of the process, of the extent of the interest of the person in question, it will have to give third parties the chance to make representations at the enforcement stage. Where the court does not make a Section 160A of Act, 2002 determination, therefore, it is not incumbent upon it to give third parties the chance to make representations at the first stage of the process (the making of the order) because they will have the chance to do so at the second stage (enforcement) before the confiscation order is enforced.

The Court of Appeal’s judgment is premised on the proposition that on every occasion that third party interests arise, the court must proceed under Section 160A. This is contrary to the conclusion reached that the introduction of Section 160A of Act, 2002 has not modified the opportunity available to the Crown Court to make a confiscation order other than under Section 160A of Act, 2002.

The consequence of the Court of Appeal’s approach would involve a collapse of the traditional two stages – the making of an order and the enforcement of it – into one hearing with all the panoply of investigation of the merits of the rights of third parties, such as a former partner and the building society in the present appeal. This would inevitably introduce a cumbersome procedure to the making of the confiscation order. This was not intended.

The enactment of the section was designed to streamline the system, not to complicate it. Section 160A of Act, 2002 simply introduces a procedure allowing third parties to make representations at the confiscation stage, but only where the Crown Court makes a determination under Section 160A of Act, 2002. No determination under Section 160A of Act, 2002was made here. The appeal is therefore allowed.

Tags : CONFISCATION STAGE THIRD PARTY REPRESENTATIONS