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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Okedare, R v [2014] EWCA Crim 1173 (15 May 2014) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/1173.html Cite as: [2014] WLR(D) 210, [2014] WLR 4088, [2014] 2 Cr App R (S) 68, [2014] Crim LR 916, [2014] EWCA Crim 1173, [2014] 1 WLR 4088, [2014] Lloyd's Rep FC 585

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		15th May 2014

1. MR JUSTICE JEREMY BAKER: This appeal is concerned with the issue of whether an individual who has absconded and subsequently been convicted of a criminal offence in his absence can be made the subject of a confiscation order under the Proceeds of Crime Act 2002 at a subsequent hearing which he has not attended due to his absconding having continued.
2. The proceedings in which this issue has arisen concerned Charles Okedare, who is 42 years of age, and was charged with an offence of conspiracy to defraud. He was due to appear at Croydon Crown Court in respect of those proceedings on 21st January 2011, but failed to do so and a warrant was issued for his arrest which has never been executed. Subsequently, on 19th April 2012, at the same court, he was convicted in his absence of an offence that between 1st January 2009 and 2nd October 2009 he conspired with others to defraud the Secretary of State for Work and Pensions of benefit monies to the total sum of £620,000. On 4th May 2012 he was sentenced, in his absence, to a period of 5 years' imprisonment. On 13th June 2013, at the same court and again in his absence he was made the subject of a confiscation order in the sum of £29,050.62, pursuant to section 6(5) of the Proceeds of Crime Act 2002, hereafter referred to as "POCA". He appeals with leave of the Full Court, (the Vice-President of the Court of Appeal (Criminal Division), Silber J and Green J) in relation to the making of the confiscation order.
3. The main provision of POCA under which confiscation orders are made is section 6 which provides as follows:

i. "(1)The Crown Court must proceed under this section if the following two conditions are satisfied

ii. (2)The first condition is that a defendant falls within any of the following paragraphs—

iii. (a)he is convicted of an offence or offences in proceedings before the Crown Court;

iv. (b)he is committed to the Crown Court for sentence in respect of an offence or offences under section 3, 4 or 6 of the Sentencing Act;

v. (c)he is committed to the Crown Court in respect of an offence or offences under section 70 below (committal with a view to a confiscation order being considered).

vi. (3)The second condition is that—

vii. (a)the prosecutor or the Director asks the court to proceed under this section, or

viii. (b)the court believes it is appropriate for it to do so.

ix. (4)The court must proceed as follows—

x. (a)it must decide whether the defendant has a criminal lifestyle;

xi. (b)if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;

xii. (c)if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.

xiii. (5)If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must—

xiv. (a)decide the recoverable amount, and

xv. (b)make an order (a confiscation order) requiring him to pay that amount.

xvi. (6)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.

xvii. (7)The court must decide any question arising under subsection (4) or (5) on a balance of probabilities.

xviii. (8)The first condition is not satisfied if the defendant absconds (but section 27 may apply).

xix. (9)References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2)."

4. However, under the main heading "Defendant absconds" sections 27 and 28 of POCA provide as follows:

i. "27 Defendant convicted or committed

ii. (1)This section applies if the following two conditions are satisfied.

iii. (2)The first condition is that a defendant absconds after—

iv. (a)he is convicted of an offence or offences in proceedings before the Crown Court,

v. (b)he is committed to the Crown Court for sentence in respect of an offence or offences under section 3, 4 or 6 of the Sentencing Act, or

vi. (c)he is committed to the Crown Court in respect of an offence or offences under section 70 below (committal with a view to a confiscation order being considered)

vii. (3)The second condition is that—

viii. (a)the prosecutor or the Director applies to the Crown Court to proceed under this section, and

ix. (b)the court believes it is appropriate for it to do so.

x. (4)If this section applies the court must proceed under section 6 in the same way as it must proceed if the two conditions there mentioned are satisfied; but this is subject to subsection (5).

xi. (5)If the court proceeds under section 6 as applied by this section, this Part has effect with these modifications—

xii. (a)any person the court believes is likely to be affected by an order under section 6 is entitled to appear before the court and make representations;

xiii. (b)the court must not make an order under section 6 unless the prosecutor or the Director (as the case may be) has taken reasonable steps to contact the defendant;

xiv. (c)section 6(9) applies as if the reference to subsection (2) were to subsection (2) of this section;

xv. (d)sections 10, 16(4), 17 and 18 must be ignored;

xvi. (e)sections 19, 20 and 21 must be ignored while the defendant is still an absconder.

xvii. (6)Once the defendant ceases to be an absconder section 19 has effect as if subsection (1)(a) read—

xviii. '(a)at a time when the first condition in section 27 was satisfied the court did not proceed under section 6.'

xix. (7)If the court does not believe it is appropriate for it to proceed under this section, once the defendant ceases to be an absconder section 19 has effect as if subsection (1)(b) read—

xx. '(b)there is evidence which was not available to the prosecutor or the Director on the relevant date.'

xxi. 28 Defendant neither convicted nor acquitted.

xxii. (1)This section applies if the following two conditions are satisfied.

xxiii. (2)The first condition is that—

xxiv. (a)proceedings for an offence or offences are started against a defendant but are not concluded,

xxv. (b)he absconds, and

xxvi. (c)the period of two years (starting with the day the court believes he absconded) has ended.

xxvii. (3)The second condition is that—

xxviii. (a)the prosecutor or the Director applies to the Crown Court to proceed under this section, and .

xxix. (b)the court believes it is appropriate for it to do so.

xxx. (4)If this section applies the court must proceed under section 6 in the same way as it must proceed if the two conditions there mentioned are satisfied; but this is subject to subsection (5).

xxxi. (5)If the court proceeds under section 6 as applied by this section, this Part has effect with these modifications—

xxxii. (a)any person the court believes is likely to be affected by an order under section 6 is entitled to appear before the court and make representations;

xxxiii. (b)the court must not make an order under section 6 unless the prosecutor or the Director (as the case may be) has taken reasonable steps to contact the defendant;

xxxiv. (c)section 6(9) applies as if the reference to subsection (2) were to subsection (2) of this section;

xxxv. (d)sections 10, 16(4) and 17 to 20 must be ignored;

xxxvi. (e)section 21 must be ignored while the defendant is still an absconder.

xxxvii. (6)Once the defendant has ceased to be an absconder section 21 has effect as if references to the date of conviction were to—

xxxviii. (a)the day when proceedings for the offence concerned were started against the defendant, or

xxxix. (b)if there are two or more offences and proceedings for them were started on different days, the earliest of those days.

xl. (7)If—

xli. (a)the court makes an order under section 6 as applied by this section, and

xlii. (b)the defendant is later convicted in proceedings before the Crown Court of the offence (or any of the offences) concerned,

xliii. section 6 does not apply so far as that conviction is concerned."

5. In the Crown court the respondent initially invited the judge to make a confiscation order under section 6 as applied by section 28 of POCA. However, after the judge had made some preliminary observations as to the potential applicability of section 6 alone to the present situation, those observations were supported by the respondent. The appellant, on the other hand, submitted that none of the POCA provisions covered the present situation and therefore the court was not entitled to make a confiscation order.
6. On 16th November 2012 His Honour Judge Stow QC gave a ruling that although neither sections 27 nor sections 28 applied to the present situation, section 6 did which required him to make a confiscation order under that section alone. He explained his reasoning in this manner:

i. "... It seems to me that if you read sections 6 and in particular, subsection (8), together with section 27, it is clear that subsection (8) is referring to the situation which arises when the defendant absconds after he is convicted ...

ii. At the end of the day it seems to me that the scheme of this legislation is as follows: if there is a conviction and the defendant then absconds, then the Crown must look to section 27 if they wish to proceed with confiscation proceedings against him. If, on the other hand, the defendant has not been convicted because the proceedings have not reached that stage, under section 28 the Prosecution can apply, after the lapse of two years from the defendant absconding ... for confiscation proceedings to go ahead against him...

iii. What is not expressly dealt with is the situation which arises where the defendant absconds before he is convicted...

iv. It seems to me that in those circumstances the position is covered by subsection (2), read with subsection (1) - the Crown Court must proceed under this section if the following two conditions are satisfied: the first condition is that the defendant falls within any of the following paragraphs 'a) he is convicted of an offence or offences'; second condition - the Prosecutor asks the court to proceed under this section ...

v. I do not accept that Parliament was so lax in their approach to this draconian legislation that they, in effect, allowed the situation to arise whereby if a defendant absconded before they were convicted in their absence, no confiscation proceedings could be brought against them."

7. Thereafter the judge gave timetable directions for the hearing of the confiscation proceedings which subsequently took place before Judge Baucher on 13th June 2013. By then the prosecution had served its statement of information, in accordance with section 16 of POCA, which set out a benefit figure for the appellant of £29,500 and its assessment of the available amount being £29,050.62; as represented by his 50% share of the equity in the matrimonial home at 6 Barrow Close, Enfield. Accordingly, the judge made a confiscation order under section 6(5) of POCA in that lesser sum, to be paid within 6 months or in default 14 months' custody.
8. In the grounds of appeal on behalf of the still absent appellant, it is maintained that where an accused absconds prior to his conviction, then none of the POCA provisions empower the court to make a subsequent confiscation order. It is submitted that a natural reading of section 6(8) is that where an accused has absconded, the first of the conditions set out in section 6(2) is not satisfied, thereby depriving the court of a power to make a confiscation order under section 6(5). Furthermore, the wording of section 27 is clear, that it only applies to a situation where an accused absconds after he is convicted of an offence and that it is equally clear that section 28 does not apply to the present situation because its subheading expressly states that it applies where an accused has not been convicted of an offence.
9. In this regard it is pointed out that section 28(7) provides that a further confiscation order cannot be made under section 6(5) if an accused is convicted of an offence in the future. Moreover, that sections 29 and 30 provide for what may occur if an accused is either convicted or acquitted in the future or the prosecution either abandons the prosecution or delays too long in proceeding with it. In such circumstances the accused may apply to the court to either vary or discharge the confiscation order that has been made under section 28 of POCA.
10. It is further submitted that the effect of the ruling of His Honour Judge Stow QC is to deprive those who have absconded prior to their conviction, of the type of protective measures which are provided to those who abscond after their conviction or, who have never been convicted at all. In this regard it is pointed out, inter alia, that under section 27(5) and section 28(5) there is an obligation on the prosecution to make reasonable efforts to contact an accused, that those potentially affected by the confiscation order have a right to be heard at the hearing and the statutory assumptions under section 10 will not apply. Additionally, under section 28(2)(c) no confiscation order can be sought until a period of 2 years has elapsed from the commencement of the proceedings for the offence.
11. In its response the respondent reverts to its original position, namely that in the present situation the court is entitled to make a confiscation order under section 6 as applied by section 28. Originally in its written submissions the respondents also sought to uphold the ruling in the Crown court, pointing out that any deprivation of the protections afforded to those dealt with under section 27 or 28 could be met by the court providing them in any event and points out that in the present case not only was there a period in excess of 2 years from the start of the proceedings, but steps had been made to contact the appellant through his solicitor. None of the section 10 assumptions were made and the appellant's wife could have been heard at a confiscation hearing; indeed she would in any event be entitled to make representations at the enforcement stage of the proceedings.
12. The respondent submitted that the legislative intent behind POCA was to bolster the previous provisions of the Drug Trafficking Act 1994 (herein after referred to as "DTA") so as to ensure that no accused should be enabled to escape being made subject of confiscation proceedings by absconding. It points out that in a similar situation to the present the court had been empowered under the DTA to make a confiscation order. Moreover, not only should a purposive interpretation be given to POCA, but that if necessary rectification could take place, most simply by the insertion of the words "before or" immediately in front of the word "after" in section 27(2) of POCA, thus bringing the present situation in line with those who abscond after their conviction.
13. However, in extremely helpful submissions made on behalf of both the appellant by Mr Payne of counsel and Mr Little of Counsel on behalf of the respondent, it is now jointly conceded that neither the route chosen by the judge in the Crown court, namely to rely upon section 6 of POCA alone, can be supported and that the wording of section 27 is sufficiently clear that nor is that a route that can be taken. Therefore, the respondent seeks to revert to its original submission, namely that the court would in these circumstances be entitled to make a confiscation order under section 6 as applied by section 28. The appellant submits that the analysis and conclusion is wrong.
14. The DTA was part of the precursor legislation to POCA and provided for the situation where an accused had either absconded or died in the following manner in section 19:

i. "Powers of High Court where defendant has absconded or died.

ii. (1)Subsection (2) below applies where a person has been convicted of one or more drug trafficking offences.

iii. (2)If the prosecutor asks it to proceed under this section, the High Court may exercise the powers of the Crown Court under this Act to make a confiscation order against the defendant if satisfied that the defendant has died or absconded.

iv. (3)Subsection (4) below applies where proceedings for one or more drug trafficking offences have been instituted against a person but have not been concluded.

v. (4)If the prosecutor asks it to proceed under this section, the High Court may exercise the powers of the Crown Court under this Act to make a confiscation order against the defendant if satisfied that the defendant has absconded.

vi. (5)The power conferred by subsection (4) above may not be exercised at any time before the end of the period of two years beginning with the date which is, in the opinion of the court, the date on which the defendant absconded.

vii. (6)In any proceedings on an application under this section—

viii. (a)section 4(2) of this Act shall not apply;

ix. (b)section 11 of this Act shall apply as it applies where the prosecutor asks the court to proceed under section 2 of this Act, but with the omission of subsections (5), (7) and (8);

x. (c)the court shall not make a confiscation order against a person who has absconded unless it is satisfied that the prosecutor has taken reasonable steps to contact him; and

xi. (d)any person appearing to the court to be likely to be affected by the making of a confiscation order by the court shall be entitled to appear before the court and make representations.

xii. (7)Subject to subsection (8) below, section 9 of this Act applies in relation to confiscation orders made by the High Court by virtue of this section as it applies in relation to confiscation orders made by the Crown Court and, for that purpose, references to the Crown Court in the provisions of [the 2000 Act] referred to in subsection (1) of that section (except in [section 140(1)(b)] of that Act) shall be construed as references to the High Court.

xiii. (8)Where the High Court makes a confiscation order by virtue of this section in relation to a defendant who has died, section 9(1) of this Act shall be read as referring only to [sections 139(1) and 140(1) of the 2000 Act].

xiv. (9)Where the High Court—

xv. (a)has been asked to proceed under this section in relation to a defendant who has absconded, but

xvi. (b)has decided not to make a confiscation order against him,

xvii. Section 14 of this Act shall not apply at any time while he remains an absconder.

xviii. (10)Where a confiscation order has been made in relation to any defendant by virtue of this section, section 15 of this Act shall not apply at any time while he is an absconder."

15. It is clear from the wording of section 19(2) of the DTA that it did not seek to distinguish between the situation where an accused had absconded either before or after his conviction. In both set of circumstances the High Court was empowered to make a confiscation order. On the other hand, it is equally clear that when section 27(2) of POCA came to be drafted, those responsible inserted the word "after", thus on the face of it precluding an accused such as the appellant being made the subject of a confiscation order under that section where he has absconded prior to his conviction. Section 19 of the DTA received the attention of Stanley Burnton J (as he then was) whilst sitting in the Administrative Court in R (on the application of) CPS v D [2006] EWHC 2738 (Admin). The circumstances of that case involved an accused who had been convicted of a drug trafficking offence and had subsequently absconded. The court had to consider its power to make a confiscation order under section 19 of the DTA. Stanley Burton J accepted that in those circumstances he was empowered to make such an order under section 19(2). However, at paragraphs 9 and 10 of the judgment he went on to consider whether he was also empowered to make a confiscation order under section 19(4). He concluded that he was empowered to do so but that for reasons which he explained, in particular that section 19(2) provided for an express power to do so, he would proceed to make the order under subsection (2). He explained the position as follows:

i. "9. There is also a power under subsection (4). Subsection 4 provides:

ii. 'If the prosecutor asks it to proceed under this section, the High Court may exercise the powers of the Crown Court under this Act to make a confiscation order against the defendant if satisfied that the defendant has absconded.'

iii. 10. Subsection (3) provides that that subsection applies where proceedings for one or more drug trafficking offences have been instituted against that person but have not been concluded. The reference to the conclusion of proceedings for drug trafficking offences calls up the definition provisions of the Act. Section 41(3) provides that proceedings for drug trafficking offences are concluded:

iv. '(a) when the defendant is acquitted on all counts;

v. (b) if he is convicted on one or more counts, but the court decides not to make a confiscation order against him, when it makes that decision; or.

vi. (c) if a confiscation order is made against him in those proceedings, when the order is satisfied.'

vii. Clearly (a) does not apply, nor does (b), nor does (c), and it follows that the proceedings for the drug trafficking offence for which [D] was found guilty had not concluded. But although by virtue of that definition a conviction does not bring proceedings for a drug trafficking offence to an end and therefore on the face of it we have power under subsection (4) of section 19 in the present circumstances, it is clear to me that where there has been a conviction, the appropriate power to be exercised by the High Court is that in subsection (2)."

16. It would appear from the explanatory notes to POCA that just as section 27 of POCA was designed to replace section 19(2) of the DTA, so too was it envisaged that section 28 of POCA would have the same effect in relation to section 19(4) of the DTA. Section 28(2) and (3) of POCA requires two preliminary sets of conditions to be met prior to providing the court with a power to make a confiscation order. No issue arises in relation to the second of these sets of conditions. However, the first of these, under section 28(2), requires inter alia that "proceedings for an offence or offences are started against the defendant but are not concluded" and the defendant absconds. This in turn requires consideration of the interpretation provision of section 85 of POCA which provides:

i. "Proceedings

ii. (1)Proceedings for an offence are started—

iii. Warrant under section 1 of the Magistrates' Courts Act 1980 (c. 43) in respect of the offence;

iv. (b)when a person is charged with the offence after being taken into custody without a warrant;

v. (c)when a bill of indictment is preferred under section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36) in a case falling within subsection (2)(b) of that section (preferment by Court of Appeal or High Court judge)

vi. (2)If more than one time is found under subsection (1) in relation to proceedings they are started at the earliest of them.

vii. (3)If the defendant is acquitted on all counts in proceedings for an offence, the proceedings are concluded when he is acquitted.

viii. (4)If the defendant is convicted in proceedings for an offence and the conviction is quashed or the defendant is pardoned before a confiscation order is made, the proceedings are concluded when the conviction is quashed or the defendant is pardoned.

ix. (5)If a confiscation order is made against the defendant in proceedings for an offence (whether the order is made by the Crown Court or the Court of Appeal) the proceedings are concluded—

17. (a)when the order is satisfied or discharged, or

i. (b)when the order is quashed and there is no further possibility of an appeal against the decision to quash the order.

ii. (6)If the defendant is convicted in proceedings for an offence but the Crown Court decides not to make a confiscation order against him, the following rules apply—

iii. (a)if an application for leave to appeal under section 31(2) is refused, the proceedings are concluded when the decision to refuse is made;

iv. (b)if the time for applying for leave to appeal under section 31(2) expires without an application being made, the proceedings are concluded when the time expires;

v. (c)if on appeal under section 31(2) the Court of Appeal confirms the Crown Court's decision, and an application for leave to appeal under section 33 is refused, the proceedings are concluded when the decision to refuse is made;

vi. (d)if on appeal under section 31(2) the Court of Appeal confirms the Crown Court's decision, and the time for applying for leave to appeal under section 33 expires without an application being made, the proceedings are concluded when the time expires;

vii. (e)if on appeal under section 31(2) the Court of Appeal confirms the Crown Court's decision, and on appeal under section 33 the House of Lords confirms the Court of Appeal's decision, the proceedings are concluded when the House of Lords confirms the decision;

viii. (f)if on appeal under section 31(2) the Court of Appeal directs the Crown Court to reconsider the case, and on reconsideration the Crown Court decides not to make a confiscation order against the defendant, the proceedings are concluded when the Crown Court makes that decision;

ix. (g)if on appeal under section 33 the House of Lords directs the Crown Court to reconsider the case, and on reconsideration the Crown Court decides not to make a confiscation order against the defendant, the proceedings are concluded when the Crown Court makes that decision

x. (7)In applying subsection (6) any power to extend the time for making an application for leave to appeal must be ignored

xi. (8)In applying subsection (6) the fact that a court may decide on a later occasion to make a confiscation order against the defendant must be ignored."

18. There is no dispute in this case but that proceedings for an offence had been started in this case prior to the 21st January 2011. Moreover, it is clear that subsections (3) to (6) of section 85 do not apply. Such at the time of making the confiscation order in this case the proceedings for the offence against the appellant had not been concluded. In addition the appellant had absconded.
19. In addition, 2 years had elapsed since those proceedings had started and the prosecutor had applied to the court to proceed under that section and we have no doubt that had the judge considered that this section empowered him to make a confiscation order he would have considered it was appropriate to do so.
20. In these circumstances, and subject to compliance with those matters set out in section in 28(5), we consider that the court in this case would have been entitled to proceed to make a confiscation order under section 6 as applied by section 28 of POCA. The wording of the section permits it and nothing in that or the following sections precludes it. We have borne in mind the submission of Mr Payne on behalf of the appellant that where penal legislation is involved, a strict interpretation is required and if there is doubt then it should be applied in favour of the defendant, or in this case the appellant. Equally so to our mind, the legislative intent in this case was clear; that it was intended to not only carry on the regime that had been provided for by the DTA but indeed to enforce and expand it. Indeed it would be bizarre in the extreme, as Mr Payne realistically accepts, for a person in the situation of the appellant to escape being made the subject of confiscation proceedings under POCA. In our judgment, bearing in mind the clear purpose behind this legislation and being of the view that section 28 is capable of the interpretation that we have placed upon it, we are satisfied that a court in such a situation would be entitled to make a confiscation order under section 6 as applied by section 28 of POCA.
21. We accept that the subheading of this section, "Defendant neither convicted nor acquitted", may be considered to be at variance with such an interpretation. However, we see no reason to believe that the time at which an accused is "neither convicted nor acquitted" is necessarily referable to the date of the making of the confiscation order and may equally well refer to the date when an accused absconds.
22. Moreover, as Lord Reid observed in DPP v Schildkamp [1971] AC 1:

i. "The side note is a poor guide to the scope of a section, for it can do no more than indicate the main subject with which the section deals."

23. Further, in the sixth edition of Bennion on Statutory Interpretation at page 696, the learned editor points out:

i. "A sidenote, marginal note or heading to a section is part of the Act. It may be considered in construing the section or any other provision of the Act, provided due account is taken of the fact that its function is merely to serve as a brief, and therefore possibly inaccurate, guide to content of the section. Due to a change of practice brought about by Parliamentary Counsel Office at the beginning of 2001, sidenotes to sections have been replaced by headings. This does not effect any change in their status or use of interpretation ... The sidenote of heading is of very limited use in an interpretation because of its necessary brief and therefore possibly inaccurate nature."

24. We derive support for our interpretation of section 28 of POCA from what Stanley Burton J said in the case of R (on the application) CPS v D had to say about section 19(4) of the DTA. In that regard it is apparent that the main reason why he proceeded under section 19(2) rather than section 19(4) of the DTA was not because the latter subsection did not empower him to proceed under it, but because subsection (2) of section 19 provided for it in express terms. In contrast, in the present case, it is apparent that section 27 of POCA would not have empowered the court to make a confiscation order in the present circumstances.
25. We derive some further support for our interpretation from views expressed by the late Dr Thomas QC in his Article of the Crim LR (Crim LR [2011] 1 71-73), commenting on the decision of another constitution of this court in R v Spearing [2010] EWCA Crim 2169. That case concerned the confiscatory provisions of the Criminal Justice Act 1988, where Silber J had expressed the obiter view that in similar circumstances to those pertaining in the present case section 6(8) of POCA would not prevent the court from making a confiscation order. Although Dr Thomas raised a query as to the stage at which the court in such circumstances would be entitled to make an order under section 28 he said:

i. "Section 28 applies where 'proceedings for an offence or offences are started against a defendant but are not concluded' and he absconds. This provision would presumably have applied to the applicant, although the trial is continued in his absence and he was convicted. (Section 28(7), together with ss 29 and 30, appear to contemplate that the confiscation proceedings will take place before the defendant has been convicted, but those provisions do not appear to limit the power of the Crown Court to proceed to make a confiscation order in the case of a defendant who has absconded during the trial and been convicted in his absence.)'"

26. We too accept that sections 29 and 30 of POCA appear to contemplate that the confiscation proceedings will take place before the defendant has been convicted or acquitted. Indeed, where that has occurred those sections set out the relevant criteria which have to be satisfied in the event that such a person subsequently seeks to challenge the confiscation order. However, although those sections supplement section 28, they do not limit its operation which, as we have said, permits a confiscation order being made in circumstances such as the present. Nothing in either that section or the following sections to our mind precludes it.
27. To any extent that such a person might not, on the face of it, be able to comply with the time limit for challenging such an order, not only might this in itself require a purposive interpretation so as to enable such a person to challenge the original order, but in any event if the confiscation order has caused potential injustice it will be open to the individual to seek to have this remedied on appeal to this court.
28. We have given careful consideration to the interpretation by His Honour Judge Stow QC of sections 6, 27 and 28 of POCA. We do not, with respect, believe that it is borne out by the terms of those sections. Not only is the wording of section 6(8) clear, in that although it makes reference to section 27, it is not limited, in our judgment, to a situation where an accused absconds only after he has been convicted. Moreover, where an accused is absent because he has absconded the scheme of the Act envisages that he will be afforded the protections provided by section 27(5) and section 28(5) of the Act, none of which are afforded by any similar provisions under section 6 alone. We do not consider that it would be appropriate for the court to seek to add in these protective measures in order to make good their clear omission, where they are provided in express terms by these other sections of POCA.
29. Therefore, we have reached the conclusion upon the issue raised in this case that an individual who has absconded and subsequently is convicted of a criminal offence in his absence can subsequently be made subject of a confiscation order under POCA at a hearing which he has not attended due to continuation of his absconding. The appropriate provision being section 6 as applied by section 28 of that Act.
30. Having reached that conclusion, we have not found it necessary to decide whether, absent the enabling power of section 28, a purposive interpretation including rectification could be given to section 27, so as to enable such an order to be made under that section. Clearly this could be achieved by the deletion of the word "after" in section 27(2), or the addition of the words "before or" immediately preceding it. That would require, amongst other matters, full consideration of the principles set out in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586. However, as we, for the reasons explained, do not consider that it is necessary to consider that matter further, we express no observations as to the likelihood of its success.
31. We have then had to consider whether or not we should uphold the present confiscation order on the basis that the judge would have been entitled to make a confiscation order under section 6 as applied by section 28 of POCA, or to quash the present order because it was made under section 6 alone and to remit for rehearing before the Crown court.
32. The countervailing submissions on that point can be summarised in this way. On behalf of the respondent it is submitted that there is no purpose to be served by the remission of the matter for consideration by the Crown court because there has been no prejudice suffered by the appellant as a result of the manner in which it was dealt with by the judge in the Crown court. It is pointed out that the only available assets which were sought to be made the subject of the confiscation order was the 50% equity interest in the matrimonial home which was likely, in any event, to be the basis of any order that would be made. Secondly, that the respondent had sought to take some steps to notify the appellant of the proceedings by corresponding with the appellant's solicitors who were still acting for him at that time and that, in reality, if the only other person who had an equitable interest in the matrimonial home, namely the appellant's wife had sought to make submissions in the Crown court in the course of those confiscation proceedings it is likely that the judge would have permitted her to do so and there is no reason to believe that any submissions beyond that of the 50% interest in the equitable interest of the matrimonial home would have been established by her.
33. On the other hand, the appellant submits that there is a possibility here of prejudice because it may be that there are arguments which, if the wife was heard she would want to raise, namely about the value of the home at the material time and indeed her contribution to mortgage repayments and the like. In any event, the appellant submits that the terms of section 28(5)(a) and (b) are clear and provide protective safeguards for an appellant.
34. We have considered the competing arguments carefully and although we are not necessarily convinced that there has been substantial prejudice arising out of the manner in which the confiscation order was made in the Crown court, we do consider that there is sufficient merit in the argument by the appellant that as a matter of principle the protective measures which have been afforded by Parliament under section 28(5) should be provided to the appellant before any confiscation order is made in this case.
35. Of course it may be that if, as we propose, we remit this matter to the Crown court for re-hearing, under section 6 as applied by section 28 of POCA, there is a risk that the court will make an award that is less favourable to the appellant than the existing one. But that is not a matter for us, it will be a matter for the Crown court to decide.
36. In the result we propose to quash the existing confiscation order and to remit for rehearing the confiscation application made by the respondent for consideration by the Crown court under section 6 as applied by section 28 of POCA. To that extent this appeal succeeds.
37. MR PAYNE: I am obliged. Might I invite the court to certify a point under section 33 of the Criminal Appeal 1968? I have drafted a question which I have shown to my learned friend. Might I hand it up to the court with apologises for my handwriting (Same Handed) Might I read it out?

i. "Does the Crown Court have jurisdiction under the Proceeds of Crime Act 2002 to make a confiscation order against an absconder who absconds pre conviction but is convicted in absence. If so, does the jurisdiction lie under section 6, section 27 or section 28 of the Proceeds of Crime Act 2002?"

38. LORD JUSTICE ELIAS: "Does the jurisdiction lie under section 6, section 27 or section 28 under the Proceeds of Crime Act ... who absconds perhaps prior to his conviction but is subsequently convicted in his absence?"
39. MR PAYNE: My Lord, yes.
40. LORD JUSTICE ELIAS: So you want two things. One to certify that question that involves a matter of public interest and then to decide whether or not we grant leave to the Supreme Court. We will rise.
41. (Short Adjournment)
41. LORD JUSTICE ELIAS: We are prepared to certify this question as a matter of public importance:

i. "Does the Crown Court have jurisdiction under the Proceeds of Crime Act 2002 to make a confiscation order against an absconder who absconds prior to his conviction but is subsequently convicted in his absence? If so, does the jurisdiction lie under section 6, section 27 or section 28 of that Act?"

42. We will not grant you leave, you have to persuade the Supreme Court.
43. MR LITTLE: Could I ask for one consequential direction which is that the matter be listed perhaps within 28 days, so there is some expedition for the matter proceeding in the Crown Court, not for confiscation hearing but at least "For Mention", because history dictates in other cases there is some significant delay sometimes in getting listed when they are remitted back to the Crown Court?
44. LORD JUSTICE ELIAS: I think there are time limits specified in the rules about time for lodging appeals in the Supreme Court.
45. MR LITTLE: No, I am talking about the remitting of this matter back to the Crown Court for reconsideration so that if this court directs simply that the case be listed "For Mention" within 28 days of the today, that will ensure that Croydon Crown Court do ensure it is listed sooner rather than later.
46. LORD JUSTICE ELIAS: We are prepared to do that, yes. Can you draw up an order between you for the Registrar to deal with this question. Thank you very much indeed, both of you, for the quality of the arguments on what was a very interesting issue.