Appeals
Section 31: Appeal by prosecutor or Director
68.Section 31 gives the prosecutor and the Director a new power to appeal against any confiscation order made by the Crown Court, and against any decision of the Crown Court not to make a confiscation order. The appeal lies on any ground because the Act does not specify the kind of appeal involved. However, only an appeal on a point of law or fact will be possible under these provisions. The reason for this is that the post-conviction confiscation procedures are mandatory and therefore it is not possible for there to be an appeal on the merits in such a case (but see next paragraph for the position on revaluation cases etc). The appeal will be available where, for example, the prosecutor or the Director believe that the court has failed to take account of property which should be taken account of, or has made some miscalculation concerning the amount of the order.
69.A prosecutor’s or Director’s appeal does not, however, lie against a decision of the Crown Court under sections 19 and 20 (reconsideration), or under sections 27 and 28 (convicted and unconvicted absconders). These sections all grant the Crown Court a wide degree of discretion and it would be possible to give the prosecutor and the Director an appeal on the merits in such a case. The target of their appeal rights in this Act, however, is not the court’s exercise of a discretion but its application of the mandatory confiscation procedures.
Section 32: Court’s powers on appeal
70.Section 32 provides the Court of Appeal with broad powers. The Court of Appeal may confirm, quash or vary the Crown Court’s confiscation order and, where the Crown Court decided not to make a confiscation order, it may either go through the confiscation procedures itself or direct the Crown Court to proceed afresh.
71.If the Court of Appeal makes or varies a confiscation order or directs the Crown Court to go through the confiscation procedures afresh and the Crown Court has in the meantime imposed a fine or ancillary order such as a forfeiture order on the defendant as part of the sentencing process, subsection (4) requires the court to have regard to the fine or order. However, the court is not required to take account of an order if it has already taken account of the order in working out what the free property held by the defendant is (to avoid double counting – see the note on sections 19-21 above).
72.Under subsection (7), where a compensation order has been made against the defendant, the Court of Appeal and the Crown Court proceeding afresh must have regard to it but may not order its payment out of confiscated monies. This is to prevent different treatment on appeal from in the substantive proceedings.
Section 33: Appeal to House of Lords
73.Section 33 enables the Court of Appeal’s decision to be further appealed to the House of Lords. Section 33 provides the House of Lords with similar powers to the Court of Appeal. They are not identical, however, because the House of Lords is reviewing the decision of the Court of Appeal, rather than the original decision of the Crown Court. Where a confiscation order has been made or confirmed by the Court of Appeal, the House of Lords may confirm, quash or vary the order. Where the Court of Appeal confirms the Crown Court’s decision not to make a confiscation order or quashes the Crown Court’s order, the House of Lords may confirm the decision or remit the case to the Crown Court, with directions, to proceed afresh. For practical reasons, the House of Lords will not itself proceed under section 6.
