R v Hilton (Respondent) (Northern Ireland) - [2020] UKSC 29

Trinity Term

[2020] UKSC 29
On appeal from: [2017] NICA 73

Appellant Respondent

David McDowell QC	Gavan Duffy QC
Andrew Brownlie BL	Luke Curran BL
(Instructed by Public	(Instructed by McKeown
Prosecution Service	& Co Solicitors (Belfast))
(Northern Ireland))

LORD KERR: (with whom Lord Wilson, Lord Lloyd-Jones, Lord Briggs and

Lady Arden agree)

Introduction

1. On 22 September 2015, Bernadette Hilton was convicted at Belfast Magistrates’ court on her plea of guilty of three offences contrary to section 105A of the Social Security Administration (Northern Ireland) Act 1992. One of the offences related to her failure to notify the Social Security Agency of a change in her circumstance which would have affected her entitlement to claim Income Support. The other two offences involved the making of false statements in order to obtain Income Support.

2. Following her conviction, Ms Hilton was committed to the Crown Court and that court was asked to make a confiscation order under section 156 of the Proceeds of Crime Act 2002. This application was heard by His Honour Judge Miller QC on 20 October 2016. It had been calculated that Ms Hilton had wrongly obtained a total sum of £16,517.59 as a result of her crimes. The judge assessed the benefit that she had gained to be that sum.

3. The only property held by Ms Hilton at the time of the hearing before Judge Miller was a house which was owned jointly with a former partner. She contended that the value of her half share in the property, after deduction of an outstanding mortgage was £10,263.50. The judge accepted that contention. He assessed the available amount as that sum and made a confiscation order in respect of it. Ms Hilton was ordered to pay that amount within three months. In default of its payment, it was directed that she serve six months’ imprisonment.

4. Ms Hilton appealed. Although not included in her original grounds of appeal, before the Court of Appeal she argued that Judge Miller had failed to comply with the requirements of section 160A(2) of the 2002 Act because neither the co-owner nor the mortgagee had been given the opportunity to make representations about the making of the confiscation order. It transpired that neither Ms Hilton’s former partner nor the building society which was the mortgagee was aware of the criminal proceedings or the application for a confiscation order.

The proceedings in the Court of Appeal

5. Deeny J in an extempore judgment gave the decision of the court (Gillen LJ, Deeny J and Keegan J) on 12 May 2017: [2017] NICA 73. The principal issue which concerned the court (and which is the only matter involved in the appeal before us) was in relation to the requirements of section 160A(2) of the 2002 Act and whether the judge’s order contravened those requirements. Two other matters were argued before the Court of Appeal, namely, whether a reduction in the amount to be recovered should have been made in order to reflect the…

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.

Continue reading R v Hilton (Respondent) (Northern Ireland)

Details

AGLC: R v Hilton (Respondent) (Northern Ireland) [2020] UKSC 29
Case: [2020] UKSC 29
Decision Date

CaseChat Overview and Summary

In the case of R v Hilton, the Supreme Court of the United Kingdom addressed the issue of the application of section 160A of the Proceeds of Crime Act 2002 in the context of making a confiscation order. Bernadette Hilton was convicted of three offences related to her failure to notify the Social Security Agency of a change in her circumstances and making false statements to obtain Income Support. Following her conviction, a confiscation order was made in respect of the sum of £10,263.50, which represented her half share in a jointly owned property, after deduction of an outstanding mortgage. Hilton appealed against the confiscation order, arguing that the judge had failed to comply with the requirements of section 160A(2) of the 2002 Act because neither the co-owner nor the mortgagee had been given the opportunity to make representations about the making of the confiscation order.

The primary legal issue before the court was whether the confiscation order was invalid due to the failure to give the co-owner and the mortgagee the opportunity to make representations. The court considered the two-stage process involved in making a confiscation order and securing its enforcement. The court concluded that the making of a confiscation order was a computation exercise to decide how much the defendant had benefited from their criminal activity and to assess what assets they have that might be recoverable. Whether those assets were in fact realisable was left to the enforcement stage. The court found that the confiscation order in this case was made without a determination under section 160A, and therefore, the opportunity for third parties to make representations was not precluded. The appeal was allowed, and the learned County Court judge's order was restored. It would be open to the third parties to make representations at the enforcement stage of the proceedings.

This case highlights the importance of distinguishing between the two stages of confiscation proceedings: the making of the confiscation order and the enforcement or realisation of that order. While section 160A of the 2002 Act provides for the opportunity for third parties to make representations when a determination is made, it does not preclude the possibility of a confiscation order being made without such a determination. In cases where third-party interests have been identified, the court may still make a confiscation order other than under section 160A, preserving the traditional two-stage process.

Orders