Anonymized Summary of Opinion

Factual and Procedural Background

This appeal arises from a confiscation order made under the Proceeds of Crime Act 2002 ("the 2002 Act") by Judge Smith in the Crown Court at The City. The Appellant pleaded guilty to conspiracy to commit fraud and was one of five defendants involved in a scheme targeting vulnerable elderly victims. The sentencing judge, Judge Singh, concluded the Appellant played a leading role and imposed a custodial sentence. Separate confiscation proceedings under the 2002 Act were conducted to determine the recoverable amount. At the confiscation hearing (21 September 2023) the Appellant participated by live video link, gave evidence and was cross‑examined. Judge Smith ordered the Appellant to pay £246,071, with a default custodial term of 30 months if the sum was not paid. The Appellant obtained leave to appeal to the full court on three grounds challenging (1) the legal power to permit a defendant to give evidence via live link, (2) the exercise of the discretion to permit live‑link evidence in the circumstances of the case, and (3) factual findings by Judge Smith about the available amount.

Legal Issues Presented

1. Whether section 51 of the Criminal Justice Act 2003, as substituted by the Police, Crime, Sentencing and Courts Act 2022, empowers a court to permit a defendant to give evidence via a live audio or video link in eligible criminal proceedings (including confiscation hearings).
2. Whether, if such a power exists, the judge properly exercised the discretion to permit the Appellant to give evidence by live link in the specific circumstances of this confiscation hearing (including consideration of the Appellant's communication and cognitive difficulties).
3. Whether Judge Smith made incorrect factual findings when concluding that the available amount was £246,071 (i.e. whether the Appellant had shown on the balance of probabilities that the available amount was less than his benefit from the criminal conduct).

Arguments of the Parties

Appellant's Arguments (Attorney Rosser)

• Section 51 should not be interpreted as permitting a defendant to give evidence via live link; the term "witness" does not extend to defendants giving evidence and a distinction should be maintained between witnesses and defendants.
• The Lord Chief Justice's guidance (referred to in argument) distinguishes between defendant attendance and witness evidence by live link, reinforcing that a defendant should not be treated as a witness for this purpose.
• Even if the power exists, the judge should not have exercised it in this case because the Appellant had significant learning and communication difficulties; the judge ought to have monitored and intervened as difficulties emerged and should have stopped the hearing if fairness was compromised.
• The judge made factual errors: the prosecution had not established ownership of bank accounts shown in a screenshot and had not sufficiently evidenced the value or ownership of the Rolex watches relied upon; therefore the available amount was not proved to the required balance of probabilities.

Respondent's Arguments (Attorney Dyer)

• Section 51, properly interpreted, permits a court to authorise the use of a live link for a person taking part in eligible criminal proceedings and that includes a defendant giving evidence where it is in the interests of justice to do so.
• The statutory text and definitional provisions (including the definition of "taking part" in section 56) support an inclusive interpretation that covers defendants.
• The judge in the confiscation hearing acted within the statutory criteria (section 51(4)–(6)) and the guidance, gave parties an opportunity to make representations, and managed the hearing appropriately so that it remained fair.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's analysis proceeded in three main stages corresponding to the three grounds of appeal.

1. Construction of section 51 (Ground 1)

The court examined the statutory text of section 51 (as substituted by the 2022 Act) and related interpretive provisions in section 56. It emphasised that section 51 now uses the expression "a person" and that section 56 defines "taking part" as "taking part in whatever capacity". From those textual points the court concluded that a person who is a defendant may take part in proceedings in any relevant capacity, including giving evidence. The court traced the legislative history: the original wording limited the provision to "a witness (other than the defendant)" which, the court reasoned, demonstrated Parliament's awareness that a defendant giving evidence was encompassed by the concept of witnesses unless specifically excluded. The 2022 substitution broadened the provision; its purpose was to remove limits on use of live links. The court rejected the submission that the Lord Chief Justice's guidance narrows the statutory power; it treated the guidance as explanatory and not capable of overriding Parliament's section 51 wording. The court concluded that section 51(4)–(6) supply the conditions and safeguards (interests of justice test, opportunity to make representations, consideration of guidance and all circumstances) for permitting a defendant to give evidence by live link.

2. Discretionary exercise of the power (Ground 2)

The court reiterated the statutory conditions for exercise of the power: satisfaction that it is in the interests of justice, opportunity for parties to make representations, and regard to the Lord Chief Justice's guidance and circumstances set out in section 51(6). It then reviewed the procedural steps Judge Smith took at the hearing: identifying the issue at the outset, inviting representations, noting the Appellant's previously filed section 17 statement and expert material (intermediary and psychologist reports), and making a pragmatic decision to avoid further delay. The court considered the particular nature of a confiscation hearing (judge only; balance of probabilities; the issue being available assets) and distinguished it from a defendant giving evidence before a jury. The court examined the transcript and concluded the Appellant had a fair opportunity to give evidence, was shown images and videos, answered questions, and that the judge kept an active role (including advising counsel to indicate if the Appellant did not understand). The court rejected the complaint that the judge abdicated monitoring to counsel, and it found no point in the transcript demonstrating that fairness was compromised or that answers were systematically misunderstood. The court therefore held that the discretion was properly exercised in the circumstances.

3. Factual conclusions on available amount (Ground 3)

The court summarised the relevant statutory framework under the 2002 Act: the recoverable amount is the defendant's benefit unless the defendant shows the available amount is less. Judge Smith accepted the benefit figure (not contested) and assessed whether the Appellant had shown that available assets were less than that benefit. Having heard the evidence (including social media images, photographs of watches and cash, screenshots of bank balances on the Appellant's phone, and the Appellant's answers), Judge Smith disbelieved the Appellant's account that he had only received modest sums and had spent them on living expenses. The court considered the judge's proportionality reasoning (comparison with five conspirators' likely shares, the Appellant's leading role, the prosecution's proposed sum of £246,071 reflecting watch values, bank screenshots and £120 identified in an account in the Appellant's name) and found that the judge did not make incorrect factual findings. The court emphasised that the judge was entitled to disbelieve the Appellant's evidence and to conclude that a substantial proportion of the proceeds remained available.

Holding and Implications

APPEAL DISMISSED

Holding:

• The court held that section 51(1) of the Criminal Justice Act 2003 (as substituted) empowers a court to direct that a defendant may give evidence by live audio or live video link in eligible criminal proceedings, subject to the conditions in section 51(4)–(6) (including the interests of justice test and opportunity to make representations).
• The court held that Judge Smith properly exercised his discretion to permit the Appellant to give evidence by live link in the confiscation hearing and that the hearing remained fair.
• The court held that Judge Smith's factual findings about the available amount (ordering payment of £246,071 with a 30‑month default custodial term) were not incorrect and that the Appellant had not discharged the burden of showing that available assets were less than the benefit figure.

Implications:

The direct consequence of the decision is that the confiscation order made by Judge Smith in the Crown Court at The City (payment of £246,071 with a default custodial term) stands. The court also provided an authoritative construction of section 51: courts may permit defendants to take part (including giving evidence) by live link where the statutory conditions are met. The opinion does not purport to establish a broader novel precedent beyond that statutory interpretation and its application to the present facts; the ruling applied those principles to uphold the fairness and outcome of the specific confiscation hearing.