R v Harkin (Appellant) (Northern Ireland) - [2018] UKSC 23

Easter Term

[2018] UKSC 23

On appeal from: [2015] NICA 31

JUDGMENT

R v McCool (Appellant) (Northern Ireland) R v Harkin (Appellant) (Northern Ireland)

before

Lord Mance, Deputy President

Lord Kerr
Lord Reed
Lord Hughes
Lady Black

JUDGMENT GIVEN ON

2 May 2018

Heard on 23 November 2017

Appellant (McCool) Respondent

Barry Macdonald QC

Liam McCollum QC

Dessie Hutton Rosemary Walsh

(Instructed by Madden &

(Instructed by Public

Finucane) Prosecution Service)
Appellant (Harkin)
Fiona Doherty QC
Catherine Devlin

(Instructed by Madden &

Finucane)

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] UKSC 23
Decision Date

CaseChat Overview and Summary

The Supreme Court heard an appeal by two defendants, McCool and Harkin, who were convicted of benefit fraud. McCool was convicted of four offences, one of which occurred before the commencement of the Proceeds of Crime Act 2002. Harkin was convicted of offences which all occurred after the Act commenced. The Crown Court made confiscation orders against them under the 2002 Act. The appellants argued that the court did not have jurisdiction to make the orders because of their convictions of pre-commencement offences. The Court of Appeal dismissed the appeals. The Supreme Court allowed McCool and Harkin's appeals. The majority of the Supreme Court held that the confiscation orders should have been made under the confiscation regime in force at the time the earliest of the offences concerned was committed. The confiscation orders made under the 2002 Act should be quashed and replaced with orders under the earlier legislation. Lord Kerr disagreed with the majority. In his view, the confiscation orders made under the 2002 Act were valid because the Crown disclaimed any reliance on the pre-commencement offences. There was no unfairness to the appellants in making the orders under the 2002 Act. The appellants were subject to the confiscation consequences of their post-commencement offences, as required by the 2002 Act, unless those consequences differed in some way from what they would have been if the earlier offences had never occurred. They did not.

Orders