Criminal Law Week
Can a confiscation order be made against a defendant who has absconded?
The following article is written for Police Professional by the editors of Criminal Law Week. Criminal Law Week is used by criminal justice professionals including police officers, the CPS, judges and lawyers to stay up to date with changes in criminal law. Published 46 times a year, each issue summarises important cases and legislation, keeping you on top of the latest developments regarding offences, police powers, the rules of procedure and evidence, and more. Incisive commentary is also provided by James Richardson Q.C., the editor of Archbold. Our online service gives you access to all Criminal Law Week issues, from 1997 to today. These are pulled together in a fully-searchable database, complemented by annotated key criminal legislation. For more information about Criminal Law Week, or to sign up for a free trial of our online service, please visit www.criminal-law.co.uk or call 01483 414 599. Can a confiscation order be made against a defendant who has absconded? Yes, said the Court of Appeal in R v Nevitt (CLW/17/21/6). The defendant, Raymond Nevitt, was the managing director of a company that provided training in the North West of England. Under his direction, a group of companies called the Ravelle Group was set up using false documents. These companies were controlled by the defendant. Companies within the Ravelle Group made applications for public funds in the form of grants for training. In fact, no training occurred. Various fictitious documents were created in support of these applications, which resulted in a payment of over £66,000 from the Engineering and Marine Training Authority. He was also involved in the dishonest promotion and management of three of the companies within the Ravelle Group. The defendant was charged with conspiracy to defraud (in respect of the applications for public funds) and fraudulent trading (in relation to the dishonest promotion and management). In 2006, he was convicted of the conspiracy charge. His sentence was adjourned and he was granted bail, but he then absconded. He was subsequently sentenced in his absence to 27 months imprisonment, reduced on appeal to 18 months imprisonment. In 2008, he was convicted in his absence of the fraudulent trading charge. He was again sentenced in his absence, this time to 45 months imprisonment, concurrent with his previous sentence. Later that year, the judge proceeded with confiscation proceedings (under the Criminal Justice Act 1988) in the defendants absence, and imposed a confiscation order for £1.6 million. Years later, having by then been arrested and taken to prison to serve his sentences, the defendant appealed against the confiscation order. He argued, amongst other things, that the judge had not been entitled to impose it in his absence. The court held that the 2010 decision of the Court of Appeal in R v Spearing is authority for the proposition that confiscation proceedings can proceed in the absence of a defendant who absconds. It said that in that judgment, the court correctly applied to confiscation proceedings by analogy the approach taken by the House of Lords in 2002 in R v Jones (Anthony), in which it was held that, when a defendant absconded from trial, he thereby waived his right to legal representation, both at common law and under the European Convention on Human Rights. While the Drug Trafficking Act 1994 had a scheme that allowed for review of a confiscation order made against an absent defendant, it was not possible to reason backwards to the 1988 Act, so as to reach the conclusion that the absence of any such scheme in the 1988 Act meant that Parliament had intended a confiscation order under that Act could not be made in a defendants absence. The defendants appeal was accordingly dismissed. CLW comment As to R v Spearing, as is noted in the commentary to that case, the House of Lords in R v Jones (Anthony) did not say that a defendant who absconds was to be taken to have waived his right to legal representation. What they said was that he had waived his ri