McCool, R v (Northern Ireland) (Rev 1)

Easter Term

[2018] UKSC 23

On appeal from: [2015] NICA 31

LORD KERR:

Introduction

1.                  Part 4 of the Proceeds of Crime Act 2002 deals with the circumstances where benefits obtained by persons in Northern Ireland by their criminal activity can be confiscated. By virtue of article 2 of and the Schedule to the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003, Part 4 of the Act came into force on 24 March 2003.

2.                  The first and central provision in Part 4 of the Act is section 156. That section is declared in the statute to be concerned with the making of confiscation orders. Subsection (1) of section 156 expressly requires that the Crown Court must proceed in accordance with the terms of the section, where two conditions are satisfied. The context for the way in which confiscation orders are to be applied for and obtained is therefore set. That context, in my view, is defined by the consideration that it is confined to confiscation orders which can be made under the Act.

The relevant statutory provisions

3.                  Subsections (2) and (3) of section 156 set out the two conditions foreshadowed in subsection 1. The first of these is that the defendant against whom a confiscation order is sought must either have been convicted of an offence or offences before the Crown Court or have been committed to the Crown Court in respect of an offence under section 218. There is an important rider to, or explanation of, the latter of these conditions. It is to the effect that the committal should have been with a view to a confiscation order being considered. This reinforces the nature of the context in which these provisions fall to be considered. The purpose of the committal is to deal with confiscation orders that might be made under the 2002 Act.

4.                  The terms of section 218(1) again emphasise this essential aspect. Subsection (1)(b) makes clear that committal should take place when the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 156. Thus, under this provision, the court is principally concerned with the making of a confiscation order under the 2002 Act. The magistrates’ court must commit the defendant to the Crown Court if requested to do so - section 218(2)(a). But it may also, under section 218(2)(b), commit him in respect of other offences falling within subsection (3). Offences falling within the latter subsection are those of…