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Bewley, R. v
Factual and Procedural Background
The Registrar referred an application by Company A for leave to appeal against a ruling of Judge Mayo (Crown Court) dated 27 April 2026. Judge Mayo had set aside a restraint order originally made by Judge Harbage on 20 August 2024 pursuant to section 42(7)(a) of the Proceeds of Crime Act 2002 ("POCA") on the basis that proceedings had not been commenced within a reasonable time. The restraint order had been made against the Defendant and Other Affected Person in relation to an investigation (Operation Gosling) conducted by Company B into unlawful supply and distribution of Class A drugs. The Defendant was arrested on 25 July 2024 at The Address; items including cash, watches and exhibits were seized; and a Lloyds bank account and jointly-owned property were identified. The original order included a three-monthly reporting requirement under section 41(7B). A series of six periodic (quarterly) witness statements from a Financial Investigator recorded investigatory steps and timeline between August 2024 and March 2026. The Defendant and Other Affected Person applied to discharge the restraint order under POCA; hearings were listed and adjourned in April 2026 before Judge Mayo, who discharged the order on 27 April 2026. Company A sought leave to appeal; the Court of Appeal (Judges Popplewell, Goose and Saini) refused leave on 19 May 2026.
Legal Issues Presented
- Whether Judge Mayo erred in law in discharging the restraint order under section 42(7)(a) and/or section 41(7B) of POCA by concluding that proceedings had not been commenced within a reasonable time.
- Whether the judge failed to apply the principles in R v S [2019] EWCA Crim 1728; [2020] 1 WLR 109 correctly when assessing the reasonableness of delay.
- Whether the judge should have taken account of a decision to charge or of proceedings authorised (or commenced) during the period between the hearing and the written ruling.
- Whether the "legislative steer" in section 69 of POCA ought to have been applied when considering discharge under the mandatory criterion in section 42(7)(a).
Arguments of the Parties
Company A's Arguments
- The judge failed to apply R v S rigorously and correctly to the facts before him.
- The judge failed to take account of the decision to charge the Defendant on 15 April 2026 (and of an alleged breach of the restraint order).
- The judge erred in not applying or giving sufficient weight to section 69 of POCA (the "legislative steer").
- As a matter of law, proceedings had been started within the meaning of POCA by the time the judge gave his ruling, so the judge applied the wrong test.
Defendant's Arguments
- The application to discharge relied on the content of the periodic reports and submitted that police enquiries had completed by June 2025 and that Company A had been guilty of unreasonable delay thereafter in providing charging advice.
- The Defendant provided documentary evidence that he traded under the Construction Industry Scheme to explain deposits and declared income, which he said had been supplied to Company A in August 2024.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v S [2019] EWCA Crim 1728 [2020] 1 WLR 109 | Clarification of the mandatory duty in section 42(7)(a) to discharge restraint orders if proceedings are not started within a reasonable time; identification of factors to be considered and the evaluative multifactorial nature of the assessment. | The court summarised the principles from R v S and applied them, observing that section 42(7)(a) is mandatory and listing the usual factors to be considered; it held Judge Mayo applied those principles appropriately. |
| Dyer v Watson [2004] 1 AC 379 | Reference to "practical realities" of investigation and charging processes. | The court noted the need to consider practical realities but held that such realities must be evidenced in context; they did not excuse lack of focused evidential material in this case. |
| R v B [2008] EWCA Crim 1144 | Standard of review for appellate interference with evaluative judgments in criminal cases. | The court applied the standard that an appellate court will not disturb an evaluative judgment absent error of law, irrelevant/material factor failure, or a conclusion no reasonable judge could reach; it upheld Judge Mayo's evaluative conclusion on that basis. |
| R v B ogie [2023] EWCA Crim 1280 | Authorities on standards of review for evaluative assessments in criminal proceedings. | The court referred to it as part of the body of authorities supporting the applicable standard of review for evaluative judgements; it treated Judge Mayo's decision as within the permissible range of conclusions. |
| Waya [2013] 1 AC 294 | Confiscation regime rationale (contextual reference regarding that regime's purposes). | The judge referred to Waya when acknowledging the balance between discharge under section 42(7) and the purposes of the confiscation regime; the appellate court reiterated that consequences cannot negate the mandatory duty to discharge when the statutory criterion is met. |
Court's Reasoning and Analysis
The court restated the statutory framework (sections 40–47 POCA), emphasising that section 42(7)(a) and section 41(7B) impose a mandatory duty to discharge a restraint order if proceedings are not started within a reasonable time. It relied principally on the guidance in R v S, summarising the relevant factors for assessing reasonableness of delay (elapsed time; reasons for delay; pre-order investigative depth; nature/extent of order; complexity of subsequent proceedings; assistance/obstruction to investigation). The court analysed the factual chronology and the evidential material before Judge Mayo (the FI witness statements and the six periodic reports) and found the prosecution's evidential material sparse, generic and lacking specifics as to what investigations were outstanding, the volume and nature of evidence, the number of devices or documents requiring review, and the precise reasons for delay after June 2025. The court held that: (a) the "legislative steer" in section 69 applies to discretionary exercises of power and does not displace the mandatory duty under section 42(7)(a); (b) commencement of proceedings after the date of the application cannot retrospectively avoid the statutory duty to discharge when a reasonable time had already elapsed; and (c) allegations or assertions in counsel's skeleton are not a substitute for proper evidential material. Applying the R v S factors and the standard of appellate review for evaluative judgements, the court concluded Judge Mayo had not erred in principle, had properly evaluated the available evidence, and reached a conclusion within the range of reasonable outcomes.
Holding and Implications
LEAVE REFUSED
Holding: The Court of Appeal refused leave to appeal; it declined to interfere with Judge Mayo's decision to discharge the restraint order. The court concluded there was no error of law or principle, and that the judge's multifactorial evaluative judgment was within the range of reasonable conclusions.
Implications: The direct effect is that Judge Mayo's ruling setting aside the restraint order remains in force. The court emphasised that a subsequent commencement of proceedings does not negate the mandatory statutory duty to discharge a restraint order where proceedings were not started within a reasonable time, and it reaffirmed the evidential expectation on prosecutors when opposing applications under section 42(7)(a). No new legal principle beyond the application of existing authorities was established.
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