Confiscation Proceedings: How to Admit Hearsay Evidence?
In the recent case of R v Clipston the Court of Appeal held that hearsay evidence was admissible in confiscation proceedings and that the Criminal Justice Act 2003, s 114 was applicable in such cases. Mark George QC , of GCN, was interviewed for Lexis Nexis Current Awareness (published 16.3.11) about the fair and flexible approach of the court in this case.
Extracts from the article as follows:
This judgment provides helpful guidance on the issue of the admissibility of hearsay evidence in confiscation proceedings, according to Mark George QC. He explains: âThe Crown wished to rely on the evidence of a co-accused who refused to testify in person. The judge at the confiscation hearing admitted the evidence under the Criminal Justice Act 2003, s 114(1)(d) as being âin the interests of justiceâ. On appeal the defence argued the CJA 2003 hearsay provisions could not apply and assistance should instead be sought in the regime under the Civil Evidence Act 1995. The Crown maintained the CJA 2003 provisions did apply.â
He thus poses the question: âHow then to square this particular circle? The answer from the court involved rejecting the submissions of both sides. The solution was that whilst the CEA 1995 regime plainly did not apply at all, neither did the regime under the CJA 2003, at least not directly. There was no question that hearsay evidence was not admissible, plainly it was. What was required at this stage of the proceedings was an approach that was fair and flexible. In cases where this problem arises, the most appropriate method would be to apply the CJA 2003 regime by analogy. The guidance in s 114(2) as well as the test under s 114(1) provides proper assistance. If the issue is the weight to be attached to the evidence rather than admissibility itself then the âchecklistâ in s 114(2) again provides suitable guidance as do the matters listed in s 116 of the Act.â
George says the judgment has clarified the provision for the admissibility of hearsay evidence in confiscation proceedings, but there are implications for practitioners. He explains âLay clients are frequently surprised at just how draconian the regime under the Proceeds of Crime Act 2002 is and find it hard to come to terms with the apparent unfairness of the process. A clear explanation of the way in which the court will proceed is always required from practitioners.
âThis case is a reminder, if one were needed, that once the trial is over and the client has been convicted the full rigour of the rules of admissibility no longer applies and the Crownâs task in adducing evidence is made that little bit easier.â