The Importance of Delay in Forfeiture Appeals: James Fletcher


Overview

In R (at the request of the Chief Constable of the Lancashire Constabulary) v The Crown Court sitting at Preston v Kenneth Malin [2021] EWHC 2869 (Admin), the High Court considered a judicial review arising from applications for account forfeiture under the Proceeds of Crime Act 2002.

The High Court dismissed judicial review based on fundamental principles of public law. Interestingly, while the judgment referred to the interplay between the appellate provisions and the Crown Court rules allowing extensions of time, the decision made no reference to the case of the high court R v West London Magistrates Court (ex parte Lamai) July 6, 2000, which ruled that the 30-day time limit for appeals for confiscation is absolute and cannot be extended. In The May leave to appeal was refused by the Court of Appeal, which held that the 30-day period did not infringe Convention rights (see [2001] EWCA Civil 1501). Practitioners dealing with summary forfeiture should be aware of this case which remains important.

What was the factual background and argument?

On October 31, 2019, the magistrates issued an account confiscation order on the balance of the sums held in a bank account of the company, of which Mr. Malin was the sole director.

Section 303Z14(2) of the Proceeds of Crime Act 2002 (“POCA”) grants magistrates the power to forfeit, in civil proceedings and on a balance of probabilities, the balance of a bank account frozen to the extent that it is “well recoverable”; meaning property”obtained by or in exchange for unlawful conduct”.

Section 303Z16(1) POCA allows an appeal against a confiscation order to the Crown Court. Section 303Z16(2) provides that any appeal must be “dobefore the expiration of 30 days from the day the court makes the order or decision.

On November 29, 2019, Mr. Malin emailed a notice of appeal form to the trial court. It was the last day of the 30 day period to appeal.

However, the Chief Constable argued that Rule 7(2) of the Crown Court Rules, which governed to whom notice of appeal should be given, had not been complied with because it was not t had been notified of the appeal only on December 19, 2019 and that there was no request for an extension of time.

Rule 7(2) of the Crown Court Rules provides that an appeal from the Magistrates Court must be taken”by appellant’s notice of appeal … in writing and … to the officer appointed for the magistrates’ court … [and] …to any other party to the appeal”.

The chief of police considered that the appeal had been lodged out of time.

By decision dated December 10, 2019, the Crown Court, ex officio, authorized the appeal to continue but without hearing the parties.

The parties asked the Court for the reasoning behind the decision to allow the appeal, but without success. Eventually, the Chief Constable asked the Crown Court to declare a case, which the Crown Court declined to do on July 3, 2020.

The application for judicial review was filed on October 2, 2020.

The Court’s decision

The Court found it regrettable that the Crown Court did not provide its reasoning for the December 10, 2019 decision, but found that the pandemic may have had an effect on the Court’s record keeping.

The High Court noted that “the starting point must be the terms of POCA and the relevant rules”.

The High Court noted that Rule 7(5) of the Crown Court Rules empowered the Crown Court to extend the time for giving notice of appeal before or after the expiry of the time on a claim which was presented to him. But the Court noted that no request for an extension of time had been made by the applicant (see paragraph 32 of the judgment).

The Court found that the judicial review proceedings were unfounded for a number of reasons (see paragraph 34 of the judgment).

  1. The application to set aside decisions was late for any decision before July 3, 2020. This included all decisions except the Crown Court’s decision not to state a case (paragraph 35 of the judgment).
  2. The request for a case report was poorly designed; it was not used in the context of an appeal based on the stated case, but as a mechanism to obtain more information about the reasoning behind the earlier order of the Crown Court (paragraph 36 judgment).
  3. As of July 3, 2020, the parties had sufficient information to pursue or defend a request to vary the Court’s order dated December 10, 2019 (paragraph 37 of the judgment).
  4. There was another remedy, namely Rule 5A(9) of the Crown Court Rules which allowed the Chief Constable to apply to vary a Crown Court order made without a hearing or in l absence of a part.

For these reasons the case has been remitted to the Crown Court to consider applications to vary the Court’s order of 10 December 2019 and whether an extension of time could or should be granted. .

To analyse

In the end, the Court fell back on fundamental public law reasoning to reject judicial review.

What is interesting is that nowhere in the judgment is there any reference to the The May which provides that the 30-day period cannot be extended.

The Maywas a cash forfeiture case decided under the provisions of the Drug Trafficking Act 1994 (“DTA”), which has now been repealed and replaced by the Proceeds of Crime Act 2002. exported that were the proceeds of someone’s drug trade.

In The May a forfeiture order was issued. Section 44(2) of the DTA provided for an appeal to the Crown Court “before the expiry of the period of 30 days from the date on which it is brought”. Appeal provisions under POCA are worded in the same way.

In The May the notice of appeal was filed 6 days out of time but the Crown Court purported to grant leave to appeal out of time. The Court eventually withdrew its order after hearing conflicting submissions, but Mr. Lamai then sought leave to seek judicial review of the Court’s decision to withdraw the extension of time.

The only question for the Court was whether the Crown Court had jurisdiction to grant an extension of the time for appeal beyond the 30 days set out in the Statute.

The Court considered rule 7(5) of the Crown Court Rules which stated:

(5) The time for giving notice of appeal (whether prescribed under subsection (3) or under any enactment set out in Part I of Schedule 3) may be extended, before or after its expiry, by the Crown Court, on application in accordance with subsection (6).

All parties agreed that Rule 7(3) did not apply to forfeiture appeals because there was no offender, no penalty and the 21-day period referred to in Rule 7(3 ) was not the same for forfeiture appeals. HMRC argued that the appeal provisions under the Drug Trafficking Act 1994 were not in Part 1 of Schedule 3 and therefore there was no jurisdiction to extend the time limit appeal in confiscation cases. Andrew Bird of 5 SAH appeared on behalf of HMRC.

The Court held that: “There is and was no jurisdiction of the Crown Court to extend the 30 day time limit and the appeal must therefore be out of time.” Leave to appeal to the Court of Appeal was refused.

The latest version of Rule 7(5) of the Crown Court Rules currently in force is in the same terms and Part 1 of Schedule 3 does not include the Proceeds of Crime Act 2002.

This leaves the position that the appeal period is 30 days with no provision for an extension of that period under the Crown Court rules.

Therefore, rather than whether there is jurisdiction to extend the time for appeal, perhaps the more interesting question for the Crown Court to decide in Malin’s case is whether the notice of appeal initial email to the Magistrates Court within the 30 day period was sufficient. to ‘make’ an appeal, or whether failure to comply with Rule 7(2) of the Crown Court Rules has resulted in the appeal being ‘opened’ out of time. Is this procedural failure related to the notification to the other party sufficient to prevent an appeal? There have been a number of instances, including the reported appeal of Merseyside Police Chief Constable v Reynolds [2004] EWHC 2862 (Admin) who pointed out that the rules governing forfeiture applications were direct and non-mandatory and that failure to comply did not deprive the Court of jurisdiction. Could this reasoning apply to the Crown Court Rules, especially if the Chief Constable suffered no prejudice?

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