Remote Evidence by Defendants in Confiscation Proceedings:
Commentary on R v Miah [2025] EWCA Crim 1569

1. Introduction

This commentary examines the decision of the Court of Appeal (Criminal Division) in R v Miah [2025] EWCA Crim 1569, a significant authority on the use of live links by defendants in criminal proceedings following the reform of Part 8 of the Criminal Justice Act 2003 (“CJA 2003”) by the Police, Crime, Sentencing and Courts Act 2022 (“PCSC Act 2022”).

The appeal arose from a confiscation order made against the appellant, Fawaz Miah, under the Proceeds of Crime Act 2002 (“POCA 2002”). The central and novel point of law concerned whether, and in what terms, a defendant can lawfully be permitted to give evidence via a live audio or video link in criminal proceedings – specifically, in confiscation proceedings which form part of the sentencing process.

Three grounds of appeal were advanced:

Ground 1: There was allegedly no statutory power allowing a defendant to give evidence by live link in confiscation proceedings under the current version of section 51 CJA 2003.
Ground 2: If such a power existed, it was discretionary and should not have been exercised on the facts; alternatively, the Recorder should have halted the hearing when difficulties emerged.
Ground 3: The Recorder allegedly made incorrect factual findings on the “available amount”, leading to an erroneous confiscation order of £246,071.

The Court of Appeal dismissed the appeal on all grounds and, in doing so, articulated an important interpretation of section 51 CJA 2003 (as amended) which will guide the use of live links for defendants in a wide range of criminal proceedings.

2. Factual and Procedural Background

2.1 The Fraud Conspiracy

The appellant was one of five defendants involved in a sophisticated telephone fraud targeting sixteen elderly and vulnerable victims. Posing as police officers investigating fraud on the victims’ bank accounts, members of the group induced victims to withdraw large sums of cash or purchase foreign currency, then hand this to couriers on the false premise that it would be used in an investigation. The funds were in fact stolen.

Roles in the conspiracy included:

“The Voice” – callers impersonating police officers and building the victims’ trust; and
Couriers – individuals collecting the cash or currency from victims.

His Honour Judge Singh, sentencing on 31 January 2022, described the group as a “highly motivated crime group” and found that Miah and one co-defendant, Mr Zaman, were at the very top of the hierarchy, sometimes themselves acting as “the Voice”.

The evidence against the appellant included:

Cell-site data placing his phone in locations consistent with involvement as “the Voice” and with handling the proceeds;
The address of one victim stored on his phone;
Videos and images of the appellant with Rolex watches and bags full of cash.

The judge concluded that Miah played a leading role within the Sentencing Council fraud guideline, in a conspiracy requiring significant planning, recruitment, acquisition of hardware and concealment/disposal of criminal property, and operating over several months. He fell into category 1A (high culpability, high harm).

With a previous four-year sentence for fraud and a guilty plea in the present case, he received six years’ imprisonment, representing an eight-year starting point with a 25% guilty-plea reduction.

2.2 The Confiscation Proceedings

Pursuant to section 6 POCA 2002, confiscation proceedings were commenced. The court had to determine:

whether the appellant had benefited from his criminal conduct, and
if so, the recoverable amount under sections 7–9 POCA.

The prosecution served a section 16 POCA statement asserting:

Benefit figure: £720,563.35 from the criminal conduct;
Available amount: at least £245,951, based primarily on:
- three Rolex watches shown in images, with an estimated value of £53,451; and
- a screenshot on the appellant’s phone showing balances of £192,500 across three bank accounts (account holders unknown).

A later discovery of £120 in a bank account in the appellant’s name increased the alleged available amount to £246,071.

The appellant’s section 17 POCA statement took a radically different stance:

He claimed involvement in only three of the sixteen victim incidents, for a personal benefit of about £11,600.
He asserted that this had long been spent on living expenses and football matches.
He denied ownership of the Rolex watches and the £192,500 in the accounts shown in the screenshot.

2.3 Vulnerability, Intermediary Application and Expert Evidence

The appellant applied for the assistance of an intermediary for the confiscation hearing, supported by an intermediary’s report recommending their involvement for the entirety of the hearing due to identified communication difficulties.

However, the appellant had earlier obtained a psychologist’s report which:

Found extremely low IQ scores, indicating “considerable cognitive functioning difficulties”; but
Also included performance validity tests suggesting possible malingering and suboptimal effort, such that a firm diagnosis of a cognitive disorder could not be made.

Crucially, the intermediary had not been shown this psychological report. A judge considering the application on the papers, and again at a renewed oral hearing, refused to appoint an intermediary, emphasising the evidence of possible malingering and leaving it to the defence to decide whether to provide the report to the intermediary.

2.4 The Confiscation Hearing and Live Link Direction

At the confiscation hearing on 21 September 2023, the appellant had not been physically produced from prison. His counsel raised the fairness of proceeding in his absence and proposed that he give evidence via live link (the “CVP” video platform).

The Recorder queried whether he had a discretion “in the interests of justice” to allow the appellant to give evidence over CVP. Defence counsel accepted that this was possible and indicated that the appellant’s oral evidence would be directed solely to the available amount, not the benefit figure, which would not be contested. The main practical concern was how to show videos and photographs to the appellant.

The Recorder:

Accepted that the appellant could give evidence fairly over video link;
Noted that the appellant had advance notice of the case against him through the section 16 statement and had provided a section 17 statement;
Indicated he would revisit the position if practical difficulties arose (e.g. if the appellant could not see key exhibits).

The hearing went ahead by live link. The prosecution financial investigator was cross‑examined. The appellant then gave evidence, adopting his section 17 statement and denying that he owned Rolex watches or substantial funds. Under cross-examination, he accepted making some money (£15,000–£20,000) from the conspiracy, but claimed that photographs and videos showing him with large amounts of money and watches related to a previous case and that much of the material was showing off on social media, not evidence of actual wealth retained.

He admitted having a bitcoin account with £6,000–£7,000 in it, though he claimed to have forgotten the password.

3. Issues Before the Court of Appeal

3.1 Ground 1: Power to Allow Defendant Evidence by Live Link

The first and most important ground challenged the Recorder’s very jurisdiction to permit the appellant, as a defendant, to give oral evidence via live link at a confiscation hearing. The argument turned on the meaning of section 51 CJA 2003, as amended by the PCSC Act 2022, and on the interaction with the definition provisions in section 56 and the Lord Chief Justice’s guidance.

3.2 Ground 2: Proper Exercise of the Discretion

Assuming such a power existed, Ground 2 argued that:

Given the appellant’s learning difficulties and previous expert evidence, it was not in the interests of justice to take his evidence by live link; and/or
Once difficulties allegedly became apparent during the hearing (including potential misunderstandings and issues with audibility), the Recorder should have halted the hearing rather than continue.

3.3 Ground 3: Factual Errors in Confiscation Findings

The final ground challenged the Recorder’s factual findings on the available amount:

It was said there was no proper evidence that the £192,500 shown in the screenshot was the appellant’s money, especially as the accounts were not in his name and the account holders were unknown.
It was also suggested that there was insufficient evidence of the value of the Rolex watches.

The appellant maintained that the Recorder’s conclusion that the available amount was £246,071 was not open on the evidence.

4. Summary of the Judgment

The Court of Appeal dismissed the appeal in its entirety.

On Ground 1, the Court held that section 51 CJA 2003, as substituted by the PCSC Act 2022, does empower a court to require or permit a defendant to give evidence by live audio or video link in “eligible criminal proceedings”, including confiscation hearings, provided the statutory “interests of justice” test is met.
On Ground 2, it held that the Recorder properly exercised that discretion. The hearing was fair; the appellant had a meaningful opportunity to give evidence; there was no point at which it became unjust to continue by live link.
On Ground 3, the Court upheld the Recorder’s findings on the available amount, stressing that:
- the benefit figure was not disputed;
- the burden lay on the appellant to show that the available amount was less;
- the Recorder was entitled to disbelieve the appellant’s account and infer that a substantial proportion of the proceeds remained hidden and available.

The Court confirmed that confiscation is not a forum for re‑arguing sentencing findings (such as role in the conspiracy), and that the order of £246,071 was proportionate in light of the scale of the fraud and the appellant’s leading role.

5. Detailed Analysis

5.1 The Statutory Framework for Live Links

5.1.1 Section 51 CJA 2003 as Originally Enacted

Originally, section 51 CJA 2003 confined live link directions to witnesses (other than the defendant) giving evidence in specified criminal proceedings. The key features were:

The power applied only to a “witness (other than the defendant)” – an explicit exclusion of defendants from the category of persons permitted to give evidence by live link.
The direction’s subject matter was the giving of evidence (not broader participation).
The court could not make a direction unless satisfied it was in the interests of the “efficient or effective administration of justice”.
In deciding whether to give a direction, the court had to consider specified circumstances such as availability of the witness, need for attendance in person, importance of the evidence, witness’s views, and whether the live link might inhibit effective cross-examination.

Thus, under the original regime, defendants could not give their evidence remotely under section 51.

5.1.2 Covid‑Era Modifications

During the Coronavirus pandemic, section 51 was temporarily expanded by paragraph 2 of Schedule 23 to the Coronavirus Act 2020. The amended section 51:

Allowed “a person” to take part in eligible criminal proceedings via live audio or video link;
Explicitly included judges and justices, but excluded jurors from participating via live link;
Reflected the urgent need to facilitate remote participation across the system to reduce in‑person attendance.

These Covid‑specific provisions were repealed on 27 June 2022, but they informed the structure and wording of the post‑pandemic reforms.

5.1.3 Section 51 CJA 2003 as Substituted by the PCSC Act 2022

With effect from 28 June 2022, section 51 was comprehensively redrafted. The relevant features, as set out in the judgment, are:

Section 51(1): “The court may, by a direction, require or permit a person to take part in eligible criminal proceedings through (a) a live audio link, or (b) a live video link.”
Section 51(2): governing the limited circumstances in which jurors may participate via video.
Section 51(3): defining “eligible criminal proceedings”, including “a sentencing hearing”. Confiscation proceedings, consistently with established authority, are a component of sentencing.
Section 51(4): A direction may not be given unless:
- the court is satisfied it is in the interests of justice for the person to take part via live link;
- the parties have opportunity to make representations; and
- where applicable, the youth offending team has been consulted.
Section 51(5)–(6): The court must consider any guidance by the Lord Chief Justice and all the circumstances, including the person’s availability, any need for attendance in person, their views, the suitability of facilities, their ability to participate effectively, and, where the person is a witness, the importance of their evidence and the impact on effective testing of that evidence. It must also consider arrangements for public access.

The language has moved from “witness” to “a person” and from “giving evidence” to “taking part in eligible criminal proceedings”.

5.1.4 Section 56: Definitions

Section 56 CJA 2003 contains definitions relevant to Part 8 as amended:

“Defendant” includes a person “accused of or convicted of an offence”.
“Witness”, in relation to criminal proceedings, means a person called or proposed to be called to give evidence.
Section 56(1A): “In this Part, reference to taking part in proceedings means taking part in whatever capacity, including hearing the proceedings as a member of the court.”
Section 56(1B): In relation to a witness, taking part in proceedings includes attendance for purposes preliminary or incidental to giving evidence.

These definitions are central to the Court’s reasoning on Ground 1.

5.2 Ground 1 – Power to Hear Defendant Evidence via Live Link

5.2.1 The Appellant’s Argument

Counsel for the appellant, Mr Rosser, accepted that section 51 CJA 2003 permitted a person to “take part” in eligible criminal proceedings but argued that:

“Taking part” did not extend to a defendant giving evidence in those proceedings;
The term “witness” did not include a defendant, and the statute maintained a distinction between “defendant” and “witness”;
The Lord Chief Justice’s guidance supported that distinction: for example, paragraph 3 separately lists “counsel, solicitors, witnesses and defendants” as persons who may take part in proceedings by live link, and later paragraphs distinguish between defendants’ attendance at hearings and witnesses giving evidence by live link;
The Court of Appeal’s decision in R v Pierini [2023] EWCA Crim 1189 did not resolve this issue because the Court in that case held only that it was not in the interests of justice to exercise any such power, without fully analysing section 56 or the scope of “witness” or “defendant”.

On this view, while defendants might attend hearings by live link (for example, to listen, enter pleas, or be addressed by the court), the statutory power did not extend to their evidence‑giving.

5.2.2 The Respondent’s Argument

Counsel for the Crown, Ms Dyer, argued that:

The language of section 51(1) and section 56(1A) (“a person” and “taking part in whatever capacity”) was deliberately broad and plainly encompassed defendants giving evidence;
Once the court is satisfied that it is in the interests of justice, nothing in the statute excludes a defendant from giving evidence over live link;
The Lord Chief Justice’s guidance could not cut down the statutory language.

5.2.3 The Court’s Construction of Section 51

The Court’s core conclusion was unequivocal:

On a proper interpretation of section 51 CJA 2003, a court does have power to direct that a defendant give evidence via live link in eligible criminal proceedings, including confiscation hearings.

The reasoning was multi‑layered:

Textual analysis of section 51 and section 56
The Court emphasised:
- Section 51(1) refers broadly to “a person” taking part in proceedings via live link;
- Section 56(1A) defines “taking part in proceedings” as “taking part in whatever capacity”, explicitly wide language;
- A “person” includes a defendant (as defined in section 56) and a defendant can take part in many capacities, including pleading, instructing counsel, and giving evidence.
The Court considered that, once one accepts that giving evidence is one way in which a person “takes part” in proceedings, the power to “require or permit a person to take part” necessarily includes the power to require or permit a defendant to give evidence by live link.
Legislative history
The Court placed considerable weight on the evolution of section 51:
- Originally, section 51 empowered the court to direct that “a witness (other than the defendant)” give evidence by live link.
- This explicit carve‑out implied that, absent such wording, a witness could include a defendant giving evidence. Parliament therefore found it necessary to exclude defendants expressly.
- The new section 51 dropped the language of “witness” and its exception for defendants, in favour of “a person” taking part in proceedings in any capacity.
The Court took the view that this change in language, against the background of the Covid-era provisions and the original section 51, indicated a legislative intent to broaden the category of persons and activities that could be conducted via live link. The deliberate omission of the earlier exclusion of defendants was significant.
Expanded scope from “giving evidence” to “taking part”
The Court stressed that the new regime no longer confines the power to the giving of evidence. It covers participation in all aspects of proceedings (in whatever capacity). That includes, but is not limited to, evidence‑giving:
- For a defendant: entering pleas, addressing the court, being sentenced, and giving evidence;
- For others: judges, counsel, witnesses, and court staff participating remotely.

Thus, the Court regarded the statutory language as “plain” in authorising the use of live links for defendants to give evidence, subject to the interests of justice test.

5.2.4 The Lord Chief Justice’s Guidance

The Court rejected the argument that the guidance limited the power to allow defendants to give evidence by live link:

Paragraph 3 of the guidance, which lists “counsel, solicitors, witnesses and defendants” as people who may take part in proceedings via live link, was seen as descriptive rather than definitional; it did not intend to distinguish between activities different participants might undertake;
Paragraphs dealing separately with defendants’ attendance and witnesses giving evidence were concerned with practicalities, not with setting statutory limits;
The guidance cannot override or narrow the statutory powers conferred by Parliament in section 51.

In short, the guidance is a tool for helping courts apply section 51, particularly the interests of justice test, but cannot be used to circumscribe the statutory concept of “taking part”.

5.2.5 The Role of R v Pierini [2023] EWCA Crim 1189

In Pierini, the Court of Appeal refused a defendant’s application to participate by live link from abroad, primarily on the basis that it was not in the interests of justice to do so. The Court in Miah observed:

Pierini at least assumes the existence of a power to allow a defendant to give evidence via live link;
However, Pierini did not analyse in detail section 56 or the definitions of “defendant” and “witness”, so it was not determinative of the point now raised.

The Court in Miah thus treated its own decision as providing the first explicit and authoritative clarification that section 51(1) empowers the court to direct that a defendant give evidence by live link in eligible proceedings.

5.3 Ground 2 – Whether the Discretion Was Properly Exercised

5.3.1 The “Interests of Justice” Test in Section 51(4)

Having established the existence of the power, the Court examined whether the Recorder had lawfully and properly exercised his discretion under section 51(4).

Key statutory requirements for making a direction are:

The court must be satisfied it is in the interests of justice for the person to participate by live link;
The parties must have been given the opportunity to make representations;
The court must have regard to the Lord Chief Justice’s guidance and all relevant circumstances listed in section 51(6).

The Court emphasised that the “interests of justice” are context‑sensitive and depend on:

the nature of the hearing (here, a confiscation hearing without a jury);
the issues in dispute (only the available amount, not the benefit figure);
the type of participation required (defendant giving evidence);
the impact on fairness and efficiency.

5.3.2 Factors Supporting the Direction

Several factors justified the Recorder’s decision to proceed by live link:

Nature of the hearing
This was a judge‑only confiscation hearing. The concerns that might arise if a defendant gives evidence before a jury via live link (for example, potential prejudice or undermining of the dignity of the trial) did not apply with comparable weight here.
Need to avoid delay
The Recorder noted the already protracted time taken to fix the confiscation hearing. Further adjournment to secure the appellant’s production would cause additional delay and inefficiency. The Lord Chief Justice’s guidance recognises the avoidance of delay and disruption as a legitimate factor in favour of live link use.
Opportunity for representations
Both parties, and particularly defence counsel, were given the opportunity to make submissions. Defence counsel accepted that a live link was possible and did not press for adjournment on fairness grounds; the main practical concern was sharing visual evidence (videos/photographs) with the appellant, which the Recorder addressed by stating he would pause to resolve any problems and review the position if necessary.
Prior disclosure and preparation
The appellant had received the section 16 statement and had provided a detailed section 17 statement. The Recorder was entitled to conclude that he was adequately prepared to give evidence and to respond to the case on the available amount.
Continued fairness during the hearing
The Recorder remained alert to fairness, encouraging counsel to intervene if questions were not understood and making provision to show visual evidence to the appellant. The Court of Appeal, having reviewed the entire transcript, found no point at which the hearing became unfair.

5.3.3 Vulnerability, Learning Difficulties and the Role of Counsel

The appellant’s cognitive functioning and the earlier refusal to appoint an intermediary were central to his argument that it was not in the interests of justice to take his evidence by live link.

However:

The intermediary application had been refused on the basis that the expert psychological evidence suggested possible malingering and suboptimal effort; no challenge to that ruling was before the Court of Appeal.
There was no evidence that the appellant’s difficulties, whatever their true nature, were so severe that he could not understand questions and give coherent answers by video link.
The Recorder explicitly invited counsel to flag any comprehension issues. The Court saw no sign that counsel considered the appellant unable to engage effectively.

The Court rejected the suggestion that the Recorder had “abdicated” his responsibility to keep the fairness of proceedings under review. Rather, he involved counsel in that task while retaining ultimate control and making clear that he would revisit matters if problems arose.

5.3.4 Alleged Misunderstandings and Transcript Points

Mr Rosser highlighted passages in the transcript where:

answers may not have been fully audible; or
prosecuting counsel curtailed the appellant’s explanations, particularly when he appeared to dispute his leading role in the conspiracy despite having been sentenced on that basis.

The Court made two key points:

Any alleged misunderstanding did not result in unfairness of such gravity as to vitiate the hearing. The appellant had ample opportunity to give his account of the available amount and to explain his position on the images of money and watches.
When the appellant attempted to contest his leading role, the Recorder was entitled to curtail that line of evidence: a confiscation hearing is not an occasion to re‑open the factual basis on which the sentence was passed. The sentencing judge, having heard three co‑defendants at trial, was better placed to assess the appellant’s role. The Recorder was right to rely on those sentencing findings rather than allow them to be re‑litigated collaterally.

The Court therefore upheld the Recorder’s exercise of discretion and rejected Ground 2.

5.4 Ground 3 – Factual Findings on the Confiscation Order

5.4.1 POCA Structure: Benefit, Available Amount and Recoverable Amount

Under sections 6–9 POCA 2002:

The court must determine whether a defendant has benefited from criminal conduct (s 6(4)).
The recoverable amount is prima facie equal to the defendant’s benefit (s 7(1)).
However, if the defendant shows that the available amount (as defined by s 9) is less than the benefit, the recoverable amount is:
- the available amount; or
- a nominal amount if the available amount is nil (s 7(2)).

Thus:

The prosecution bears the burden of showing benefit;
The defendant then bears the burden (on a balance of probabilities) of proving that his available amount is less than that benefit.

In Miah, the benefit figure was not disputed; the only live issue was the available amount.

5.4.2 Evidence Relevant to the Available Amount

Key elements considered by the Recorder included:

The scale of the conspiracy: victims lost approximately £680,400, by the time of the hearing valued at about £729,536.35.
The appellant’s leading role in a group of five conspirators.
Images and videos of the appellant:
- wearing three Rolex watches;
- handling large bundles of cash, including foreign currency (Euros and dollars);
- in designer clothing.
A screenshot on his phone showing balances of £192,500 in three bank accounts (account names unknown);
His admission of having a bitcoin account worth around £6,000–£7,000 (albeit with an alleged forgotten password);
The £120 held in his own bank account.

The appellant’s case was that:

He obtained only £11,600–£20,000 from the conspiracy;
Any money he did make had been spent on living expenses and lifestyle;
The Rolex watches were borrowed, fake or not his;
The screenshot of the bank accounts related to a victim’s accounts, not his own.

5.4.3 The Recorder’s Findings and Reasoning

The Recorder found the appellant’s account implausible and unreliable, for three main reasons:

Inconsistency with the scale and nature of the conspiracy
It was inherently unlikely that someone in a leading role in a fraud yielding over £680,000 in loss would personally receive only a very small amount and then quickly dissipate it, leaving virtually nothing.
Images of wealth
The appellant was shown multiple times in images and videos wearing high‑value watches and handling large sums of cash in different currencies. The Recorder considered these to be strong indications of access to substantial funds and assets inconsistent with the appellant’s account of limited gains and rapid dissipation.
The bank account screenshot
The Recorder rejected the claim that the screenshot represented a victim’s account balances:
- The appellant could not identify the alleged victim;
- There was no supporting evidence linking those balances to any particular victim;
- The appellant had not mentioned this explanation in his section 17 statement.

Additionally, the appellant had conceded having a bitcoin account with several thousand pounds in it, contradicting his portrayal of having no realisable assets.

The Recorder concluded that the appellant had failed to demonstrate that the benefit was not available to him:

“[His evidence] was implausible, not reliable, and I’m not satisfied that he has demonstrated that the benefit figure is not available to him. I am satisfied that it is. The inference is that it is hidden in some way…”

However, the Recorder also carried out a proportionality check (in line with modern confiscation jurisprudence) rather than automatically ordering the full benefit amount as recoverable.

5.4.4 Proportionality and the £246,071 Order

To assess proportionality, the Recorder:

Considered the likely share of proceeds
With five conspirators and the appellant in a leading role, a crude equal division would give him around £150,000, but a leader might reasonably have taken more than one‑fifth. Given the images of wealth and his senior position, the Recorder was entitled to infer that he had retained a sizeable proportion of the total proceeds.
Considered the prosecution’s proposed figure
The prosecution did not seek the full benefit figure as the recoverable amount, but a lesser sum of £246,071, calculated by reference to:
- the estimated value of the three Rolex watches;
- the £192,500 shown in the screenshot;
- the £120 in the appellant’s own bank account.
The Recorder regarded an order in this amount as proportionate, particularly in light of the total benefit of over £729,000.

The Court of Appeal endorsed this approach, noting that the Recorder:

Did not have to be certain that the specific £192,500 belonged to the appellant or precisely where the funds were held at the time of the hearing;
Was entitled to draw reasonable inferences from the overall evidence and the appellant’s lack of credible explanation;
Properly applied the POCA framework by placing the burden on the appellant to establish that the available amount was less than the benefit, a burden he failed to discharge.

Ground 3 was therefore dismissed.

6. Precedents and Authorities Cited

6.1 R v Pierini [2023] EWCA Crim 1189

Pierini concerned a defendant who wished to participate and give evidence by live link from abroad. The Court of Appeal refused the application on the basis that it was not in the interests of justice, but did not engage in a detailed analysis of the definitional provisions in section 56 or the precise scope of the term “witness” and “defendant”.

In Miah, the Court:

Regarded Pierini as implying that the Court considered such a power to exist;
Placed emphasis on its own role in now expressly confirming the existence of the power and clarifying the statutory interpretation of section 51 as modified by the PCSC Act 2022.

6.2 Lord Chief Justice’s Guidance under Section 51(5)

The Lord Chief Justice’s guidance, issued pursuant to section 51(5), on the use of live links in criminal proceedings was central to the appellant’s argument. The Court treated it as:

Relevant to the exercise of discretion (e.g., avoiding unnecessary delay, maintaining fairness);
Not capable of redefining key statutory terms such as “a person” or “taking part in proceedings”;
Non‑determinative on the legal question whether defendants can give evidence by live link.

The guidance remains important as a practical tool for judges applying section 51, but its role is advisory and subordinate to the statute.

7. Complex Concepts Simplified

7.1 Confiscation Under POCA 2002

A confiscation order is a court order requiring a convicted defendant to pay a specified sum representing the value of their criminal benefit, using their available assets. It does not require the court to find the specific property obtained from the crime; it is a calculation‑based process with its own assumptions and burdens.

7.2 Benefit, Available Amount and Recoverable Amount

Benefit from criminal conduct – The total value of property obtained by the defendant as a result of the offence (or, in “criminal lifestyle” cases, a broader range of conduct).
Available amount – The value of all the defendant’s property at the time of the confiscation hearing, minus certain prior obligations. It is not limited to assets directly traceable to the crime.
Recoverable amount – Normally equal to the benefit figure. But if the defendant proves that their available amount is less than their benefit, the recoverable amount is the lower available amount (or a nominal sum if nothing is available).

In Miah, the prosecution’s benefit figure was £720,563.35. The question was whether Miah could prove that less than that amount was available to him; the Recorder and the Court of Appeal held that he could not.

7.3 “Particular Criminal Conduct” vs “Criminal Lifestyle”

POCA distinguishes between:

Particular criminal conduct – the conduct constituting the offences of which the defendant has been convicted (e.g., the specific conspiracy to defraud in Miah); and
Criminal lifestyle – where a defendant’s offending meets certain criteria (e.g., specified offences, pattern of conduct or lifestyle indications), triggering assumptions about broader benefit from general criminal conduct.

Although section 6 requires the court to consider both concepts, the case as reported here centred on the benefit from the particular conspiracy, not on a wider “criminal lifestyle” analysis.

7.4 Live Links: Audio and Video

A live audio link allows participation by sound only (e.g., telephone); a live video link allows the court and the participant to see and hear each other (e.g., CVP platform).

After the 2022 reforms:

“Taking part in proceedings” includes any role a person might play in the hearing;
This covers judges, advocates, witnesses, defendants, and others;
For defendants, it can include appearing from prison for case management, entering pleas, being sentenced, or giving evidence.

7.5 Intermediaries and Cognitive Difficulties

An intermediary is a communication specialist who assists vulnerable defendants or witnesses in understanding questions and communicating their answers. They are not advocates and do not give evidence about the truthfulness of the person they assist.

In Miah:

The intermediary’s report identified communication difficulties and recommended assistance;
The psychological report, however, suggested both cognitive difficulties and potential malingering and suboptimal effort;
Because the intermediary was not a psychologist and had not been shown the psychological report, the judge was not persuaded to appoint an intermediary.

The Court of Appeal considered the refusal to appoint an intermediary as part of the background, but the key issue before it was whether the subsequent use of a live link rendered the confiscation hearing unfair. It held that it did not.

8. Impact and Future Significance

8.1 Authoritative Confirmation of Defendants’ Live Link Evidence

Miah provides the first clear, appellate‑level confirmation that:

Section 51 CJA 2003, post‑PCSC Act 2022, empowers courts to require or permit defendants to give evidence by live audio or video link in eligible criminal proceedings;
This applies to confiscation proceedings as part of the sentencing hearing, and by parity of reasoning, to other eligible stages (e.g., certain trials, appeals, and sentencing hearings more generally).

This resolves any residual uncertainty left after the Covid-era modifications and Pierini, and it will guide case management decisions where logistics, safety, cost, or delay make remote participation attractive.

8.2 Confiscation Practice

The judgment reinforces several points of ongoing practical importance in POCA cases:

The benefit figure is presumptively recoverable; defendants bear the burden of showing that their available amount is less.
Courts are entitled to draw robust inferences from unexplained and implausible discrepancies between a defendant’s claimed limited means and evidence of substantial assets or lifestyle indicators.
Precise tracing of funds into current bank accounts is not always necessary; what matters is whether, on a balance of probabilities, the defendant has access to assets representing the benefit.
Confiscation is not an opportunity to re‑litigate issues already decided at sentencing, such as the defendant’s role in a conspiracy.

The approach in Miah will be of particular relevance where defendants seek to minimise their available amount despite evidence of conspicuous consumption or hidden wealth.

8.3 Vulnerable Defendants and Remote Hearings

The judgment underscores that:

Remote participation by a vulnerable defendant is not inherently unfair, provided appropriate safeguards are in place and the defendant can understand and answer questions;
The judiciary must remain alert, throughout the hearing, to any signs that a defendant is unable to participate effectively, but can properly rely on counsel to raise genuine concerns;
Where expert evidence raises doubts about the genuineness of claimed impairments (as with possible malingering), courts are entitled to be cautious about ordering special measures such as intermediaries, provided that the overall fairness of the process is maintained.

8.4 Remote Justice Post‑Pandemic

More broadly, Miah sits within the continuing adjustment to increased use of technology after the Covid‑19 pandemic:

It confirms the legislative intention to normalise and broaden the use of live links in criminal proceedings;
It highlights the need to calibrate live link use against the interests of justice in each case – especially in trials with juries, or where the credibility of a defendant giving evidence is central;
It illustrates how courts may balance fairness, efficiency and practicality, and it implicitly engages with Article 6 ECHR values (fair hearing, ability to examine witnesses, participation), even though these are not expressly discussed.

9. Key Takeaways and Conclusion

The decision in R v Miah [2025] EWCA Crim 1569 is significant for two main reasons:

Clarification of section 51 CJA 2003 post‑2022
The Court of Appeal has authoritatively held that:
- Section 51 empowers courts to require or permit defendants to give evidence via live link in eligible criminal proceedings, including confiscation hearings as part of sentencing;
- This interpretation is supported by the shift from “witness (other than the defendant)” and “giving evidence” to “a person” and “taking part in whatever capacity”;
- Lord Chief Justice’s guidance cannot narrow that statutory power, although it guides its exercise.
Reinforcement of confiscation principles and practice
The judgment:
- Reaffirms that the benefit figure stands unless the defendant proves that their available amount is lower;
- Confirms that courts may infer hidden assets and reject implausible explanations, particularly where lifestyle evidence contradicts claimed poverty;
- Emphasises proportionality in setting the confiscation order but upholds robust, evidence‑based assessments of the available amount;
- Confirms that sentencing findings (such as a leading role in a conspiracy) are not to be re‑litigated at the confiscation stage.

On the facts, the Court held that the Recorder:

Lawfully directed that the appellant give evidence by live link;
Conducted a fair hearing, despite the absence of an intermediary and the use of remote evidence;
Was entitled to conclude that the appellant had not shown that the available amount was less than the benefit, and that an order for £246,071 was both justified and proportionate.

Miah will therefore stand as a leading authority on the scope of section 51 CJA 2003 after the 2022 reforms and will inform the future management of remote participation by defendants in criminal proceedings, particularly in confiscation and other sentencing-related hearings.

Remote Evidence by Defendants in Confiscation Proceedings: Commentary on R v Miah [2025] EWCA Crim 1569