Hearsay evidence in confiscation proceedings

I have put a new article on my blog concerning the admissibility of hearsay evidence in confiscation proceedings.

It's a pretty technical area and will be of interest to only a handful readers here, so I will not reproduce it on this site.

However a brief non-technical summary is:

Most evidence in criminal courts is given orally by a witness who is then subject to cross-examination.  But sometimes evidence can be given in court where the witness is unavailable (for example a written statement written by a witness who has since died may be read out in court).  Obviously in these circumstances there can be no supplementary questions or cross-examination.  Such evidence is called "hearsay" evidence.

The general rule is that hearsay evidence is not permitted in criminal proceedings (because it cannot be effectively challenged and so allowing it could be unfair) - but this is subject to certain exceptions.

The question has arisen as to whether those same rules apply in confiscation proceedings (where decisions are made on the balance of probabilities, which is the normal standard of 'proof' in CIVIL courts).

Essentially the Court of Appeal decided that hearsay evidence could be given in confiscation proceedings where the judge was satisfied that that was in the interests of justice.

But there is more detail in the blog article.

David

Comments
Gerard Murray's picture

Totality of the Information Before the ourt

Gerard Murray | | Permalink

Hi David

From a legal perspective, the Clipston case is of great interest. I do wonder if even the court of Appeal had found differently whether it would have affected the Crown Court determination of both the criminal benefit and available amount in this particular case.

Alex Clipston was found guilty of conspiracy to supply Class A drugs and the sentencing judge noted that he was both a very substantial dealer in Class A drugs and he was as the Court of Appeal stated in paragraph 31 of its judgment "director of the drug dealing operation and had been at the head of the conspiracy, maintaining and supporting the activities of those beneath him in the hierarchy." In addition to 'the Menga evidence' there were ledgers, phone records and police surveillance intelligence and it seems quite reasonable that the totality of the information was taken into account. 

The defence appears to have been arguing that if 'the Menga evidence' ought not to have been adduced then the available amount of Alex Clipston would have been his identifiable assets of £21,383 as opposed to the figure of £500,000. The difference being the'hidden assets' an issue that has prompted a previous thread from me. In this instance, the judge in the confiscation proceedings appears to have made the point that her determination of the available amount was after applying appropraite caution to 'the Menga evidence' especially as there were grounds for finding an available amount figure of £1 million as opposed to £500K.   

davidwinch's picture

And another thing . . .

davidwinch | | Permalink

Gerard

Yes, there were a number of interesting features in the Clipston case.

One intriguing point is that, as you will know, in law either side (or both sides) can appeal against the Crown Court judge's decision in a confiscation case.

Mr Clipston appealed against the order made for £500,000 - but the Crown did not.

In the circumstances, could the Court of Appeal increase the order on hearing the defendant's appeal that it should be reduced?

It seems the Court of Appeal were not sure - but the Crown resolved the issue by saying it would not seek an increase on the £500,000 even if the Court of Appeal thought that figure had been too low.

In law, of course, it is for the defendant to satisfy the Crown Court that his 'available amount' is less than his benefit.  In the case of R v Barwick [2000] EWCA Crim 3551 at para 44 the Court of Appeal said

"once the benefit has been proved, it is permissible and ought normally to be the approach of the court, to conclude that the benefit remains available until the defendant proves otherwise".

So if, in Mr Clipston's case, the Crown Court judge was not satisfied about the true level of the defendant's assets she (arguably) should simply have made an order for the amount of the benefit - £1.6 million.  That however is to take a Draconian view of Draconian legislation!

David

cymraeg_draig's picture

Erosion of justice

cymraeg_draig | | Permalink

I'm afraid this is symptomatic of the increasing attacks upon defendant's rights. Along with the proposals to reduce legal aid, remove the right to trial by jury from many defendants, and other assorted "adjustments" it is clear that justice is slowly being eroded until across the board we will have the presumption of "guilty until proven innocent".

In my view the burden of proof in civil cases should be raised to the criminal standard, not eroded.

 

Gerard Murray's picture

Erosion of Justice

Gerard Murray | | Permalink

c-d

In the Clipston case, the Court of Appeal has considered and approved the Decision of the Crown court judge to take into account the ‘totality of the information,’ including the hearsay evidence of Mr Menga in determining the criminal benefit and amount available of Alex Clipston.

To accounting practitioners this appears to represent another incremental change in the interpretation of the proceeds of crime law. However, there have been on-going re-interpretations of this law since the introduction of the Proceeds of Crime Act 2002. For example in R v Anwoir /EWCA/Crim/2008/1354 in determining what was property derived from crime the Court of Appeal at paragraph 21stated the following: “ We consider that in the present case the Crown are correct in their submission that there are two ways in which the Crown can prove the property derives from crime, a) by showing that it derives from conduct of a specific kind or kinds and that conduct of that kind or those kinds is unlawful, or b) by evidence of the circumstances in which the property is handled which are such as to give rise to the irresistible inference that it can only be derived from crime. This may seem to be lowering the threshold for guilt from ‘beyond reasonable doubt.’   

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