Miah, R. v [2025] EWCA Crim 1569 (13 November 2025)

Neutral Citation Number: [2025] EWCA Crim 1569 CASE NO: 202401969 B4 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT DURHAM (MR RECORDER D SMITH) (T20217112) Royal Courts of Justice Strand London WC2A 2LL 13 November 2025 B e f o r e : LORD JUSTICE LEWIS MRS JUSTICE CHEEMA-GRUBB RECORDER OF LIVERPOOL (His Honour Judge Menary KC) ____________________ REX - v - FAWAZ MIAH Appeal against a confiscation order ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) ____________________ MR RHYS ROSSER appeared on behalf of the Appellant MS POLLY DYER appeared on behalf of the Crown ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. LORD JUSTICE LEWIS: Introduction This appeal concerns a confiscation order made against the appellant, Fawaz Miah, by Mr Recorder Smith in the Crown Court at Durham under the Proceeds of Crime Act 2002 ("the 2002 Act"). The appellant had been convicted, following a guilty plea, of conspiracy to commit fraud. On 21 September 2023 a hearing was held to determine whether a confiscation order should be made. The appellant was not present in court but was present over a live link. He gave evidence and he was cross-examined. The Recorder ordered that the appellant pay the sum of £246,071 and, in default of payment, that he should serve a period of 30 months' imprisonment. The appellant appeals with the leave of the full court on three grounds: • Ground 1 is that there is no power permitting the appellant as the defendant in the confiscation proceedings to give evidence over a live link. That issue, which is of general importance, concerns the proper interpretation of section 51 of the Criminal Justice Act 2003 ("the 2003 Act") as substituted by the Police, Crime, Sentencing and Courts Act 2022 ("the 2022 Act"). • Ground 2 is that if there is a power to allow a defendant to give evidence in confiscation proceedings by live link, that power is discretionary. On the facts here, the Recorder should not have exercised that power; or alternatively, should have stopped the hearing when clear difficulties became apparent and it was not in the interests of justice to allow evidence to be received by live link. • Ground 3 is that the Recorder made factual conclusions which were incorrect and he therefore erred in finding that the available amount was £246,071. The factual background The conspiracy The appellant was one of five defendants sentenced to conspiracy to commit fraud by false representation. Two of the defendants (the appellant and one other) pleaded guilty. The other three were convicted by a jury following trial. The nature of the fraud appears from the sentencing remarks of His Honour Judge Singh, who sentenced the five defendants on 31 January 2022. Elderly vulnerable victims (sixteen in total) were targeted. The fraud would begin by someone contacting the victim by telephone, purporting to be a police officer investigating fraudulent activity on the victim's bank account. The victim's trust was obtained. The victim was falsely told that there were people at the bank who were complicit in the offending. The defendants then engaged in a series of sophisticated steps to build up the victim's trust, to persuade the victim that they (the callers) were genuine police officers, and eventually to persuade the victim to withdraw large amounts of cash from the bank, or on occasions, to obtain foreign currency (Euros and dollars) from exchange bureaux. Victims were told not to discuss the case with the bank staff or anyone else. The victims complied, believing they were dealing with and helping genuine police officers. They were persuaded to hand the money to a courier to be taken to the people they believed were police officers. The money was then stolen. The sentencing judge described the five defendants as a highly motivated crime group. Each played different roles in the conspiracy. The role described as "the Voice" was very important as "the Voice" was the person who telephoned the vulnerable victims and built up the victims' trust. Others involved were couriers, collecting the money withdrawn by the elderly vulnerable victims from the bank. The sentencing judge considered that the appellant was heavily involved in this conspiracy and that the appellant and another defendant, Mr Zaman, were at the very top of the conspiracy. As the sentencing judge said, at times the appellant was one of the voices, telephoning the victims and gaining their trust. There was cell site evidence locating the appellant's phone in the same place as other persons playing the part of "the Voice" or in the vicinity when couriers returned with the money. The appellant's phone had on it the address of one of the victims. There were videos and still images showing the appellant wearing Rolex watches and standing with carrier bags stuffed with cash. The sentencing judge concluded that the appellant and Mr Zaman played a leading role within the relevant Sentencing Council guideline definition. The conspiracy was extremely sophisticated and required significant planning: hardware had to be bought; individuals recruited and organised, from "the Voice" through to the couriers; and property had to be concealed or disposed of. The conspiracy continued for months. The appellant and Mr Zaman fell within category 1A within the relevant guidelines. The appellant also had a previous conviction for fraud for which he had been sentenced to 4 years' imprisonment. He had pleaded guilty to the current. The sentencing judge therefore sentenced him to 6 years in custody, reflecting a sentence of 8 years' imprisonment which was reduced by 25% to reflect the guilty plea. The confiscation proceedings Confiscation proceedings were begun under section 6 of the 2002 Act. That requires the court to identify, amongst other things, whether the appellant has benefited from the particular criminal conduct or whether the defendant has a criminal lifestyle. If so, the court will decide what the recoverable amount is. That is defined in section 7 as follows: "(1) The recoverable amount for the purposes of section 6 is an amount equal to the defendant's benefit from the conduct concerned. (2) But if the defendant shows that the available amount is less than that benefit the recoverable amount is— (a) the available amount, or (b) a nominal amount, if the available amount is nil." The available amount is the value of all the property held by the defendant less any amount payable under any obligations having priority: see section 9 of the 2002 Act. The prosecution served a statement on the appellant under section 16 of the 2002 Act. That identified the benefit obtained by the appellant as a result of his criminal conduct as £720,563.35. The statement said that, given the appellant's role within the conspiracy, evidence of the appellant wearing Rolex watches with an estimated value of £53,451, and evidence in the form of a snapshot on his phone showing bank balances of £192,500 in three accounts at two banks, the appellant had at least the sum of £245,951 still available. The moneys in the bank accounts were not held in accounts in the appellant's name and it was not possible to identify in whose name the accounts were held. Subsequently an amount of £120 was identified in another bank account which was in the appellant's name and that was added to the amount available, bringing that amount of £246,071. In a statement made ahead of the confiscation hearing by the appellant under section 17 of the 2002 Act, the appellant contended that he was only involved in obtaining money from three of the sixteen victims and the amount of the benefit obtained by him was approximately £11,600. He said that money had long since been spent on living expenses and attending football matches. He said the three Rolex watches did not belong to him. He said that the accounts with £192,500 did not belong to him. The appellant applied to be able to give evidence using an intermediary. He obtained an intermediary's report dated 14 July 2023. The intermediary had interviewed the appellant remotely and identified communication difficulties in certain areas. The author of the report recommended that an intermediary be appointed for the whole of the confiscation hearing, not simply when the appellant was giving evidence. The appellant had previously obtained a psychologist's report dated 23 October 2022 which he had in fact exhibited to his section 17 statement. The author of that report had been instructed to assess the appellant's IQ and cognitive ability. The report recorded that certain psychometric assessments had been carried out. The appellant's IQ scores on those assessments were extremely low — 99 % of his peer group would have scored higher. The results of the assessment generally were "indicative of considerable cognitive functioning difficulties". A test which is used to discriminate between persons with actual memory problems and people described as malingerers was conducted as a way of assessing the likely validity of the cognitive functioning assessment. The report recorded that the appellant's results were below expectation, "indicating the possibility of malingering" and which suggested that the appellant "was giving a non-credible or suboptimal performance on the other assessments in which he participated". A second type of test was conducted which "indicates that again he may not have been extending his best efforts during the assessment". The conclusions in the report were that the scores were indicative of cognitive functioning difficulties, but a formal diagnosis could not be made, and further, that on the scores on the other tests there were indications that he was performing at a suboptimal level, he was possibly malingering, but that a diagnosis of malingering could not be made solely on the basis of results from the two tests. That report had not been shown to the person who wrote the report on the need for an intermediary. The application for the appointment of an intermediary was rejected by a judge on the papers. That application was renewed orally at a hearing on 24 July 2023. The judge hearing that application commented on the fact that the intermediary was not a psychologist but a communications expert. It was confirmed that the intermediary had not seen the psychologist's report. The judge refused the application and refused to appoint an intermediary on the basis that there was expert evidence that the appellant may be a malingerer. He noted that it was for the appellant's representatives to decide whether they wished the intermediary to see the psychologist's report. The judge fixed the hearing of the confiscation proceedings for 21 September 2023. The confiscation hearing took place on that date, 21 September 2023. At the start of the hearing, counsel who was then representing the appellant raised the fact that the appellant was not present as he had not, through no fault of his own, been produced from prison. Counsel said that the issue was whether the proceedings could be conducted fairly. The question was raised as to whether the appellant could give evidence via a live link. The Recorder asked, "Do I have a discretion, in the interests of justice, to allow him to give evidence over the CVP?" Counsel for the appellant confirmed that that was possible. Counsel accepted that the appellant would not in fact be in a position to challenge the figure for the benefit from the criminal conduct but the appellant wanted to give evidence about the available amount. Counsel indicated that the real concern was how to show certain videos and photographs to the appellant during the hearing. The Recorder was satisfied that the appellant had had time to address the relevant issues and, of course, he had had the section 16 statement in advance and had prepared his own section 17 statement. The Recorder was satisfied that the appellant could give evidence equally well over the video link. The Recorder indicated that if there were a difficulty with the appellant not being able to see things that were shown to him, time would be made available, and if it was not possible to deal with any difficulties, then he would review the position. The Recorder considered that there had already been delays and that the case should be brought to a conclusion. The hearing proceeded. The prosecution witness gave evidence adopting the section 16 statement and he was cross-examined. He confirmed that there were no account details or names on the accounts with the total balance of £192,500 and that it had not been possible to trace in whose names those accounts were held. He confirmed that £120 had been found in a bank account in the appellant's name. Then the appellant gave evidence. The Recorder said at the outset that if counsel thought the appellant did not understand a question, counsel should say so, and he said if the appellant could not understand a question, he should say so. The appellant then began to give evidence. He adopted his section 17 statement. He was then asked further questions by his counsel. He said that he did not possess any Rolex watches or money in any bank account. He was asked questions by his own counsel about comments found on his mobile phone that he would have his "future bought" and "it's an investment. I'm trying to have fifteen watches by the end of the year", and "Stacking up so I can leave the stress behind and never come back". He said he never had fifteen watches and he was just showing off on Snapchat. He had one watch, worth about £10,000, which the police had seized. He said the £192,500 in the accounts were what a victim had had in his account and the appellant had been sent a screenshot of that, but the money was for someone further up the chain in the conspiracy, not for him. He said he did not have £246,000 available. The appellant was then cross-examined by prosecuting counsel. He accepted that he had made some money out of the conspiracy. He said he could not remember exactly how much but it was roughly £15,000 to £20,000. He was shown a photograph of him with a bundle of dollars and he said that was from a victim. He said that money was split up and he got about the equivalent of £600 and that the photograph came from the earlier case, that is the previous conviction that he had for a similar offence, not from the present conspiracy. He was asked about a photograph showing him with another bundle of money, which he thought contained about £8,000 and which he said again came from that earlier conspiracy. Asked what had happened to that money, he said that he had used it for lifestyle and day-to-day living expenses. He was asked about a photograph of him with a bundle of Euros and the message "stacking up so I can leave the stress behind and never come back". He said "stacking up" meant saving. He said he was not saving that money; it had come from a victim. He had taken a picture of it, and he was just trying to show off. He was referred to another message and he said that referred to £5,000 from a victim but he only got £1,000 from that. The appellant was shown photographs of him wearing three Rolex watches on different occasions. In relation to the first, he said he did not know what had happened to the watch and he just took a photograph of him wearing the watch to show off. When asked about other photographs on other days showing him wearing the same watch, the appellant said that he would borrow it off the person but he had no idea where the watch was. He said of photographs showing him wearing a second Rolex watch, that the watch was fake. He was asked about a third watch (referred to as a diamond watch) that was in a photograph where he was seen wearing the watch and he said he was just wearing it to show off. He was shown and asked about photographs of himself in designer clothing. He was asked if he was saving and hiding money by putting it into other bank accounts and he denied he was doing that. He was then shown videos of him with various amounts of cash and said the money had been split between the conspirators or that it had been spent. He admitted to having a bitcoin account with about £6,000 or £7,000 in it, but he did not know the password to enable him to gain access to the account. Counsel for the appellant had no questions in re-examination. Counsel then made submissions on behalf of the appellant. The ruling In his ruling the Recorder noted that there was no dispute about the amount of the benefit that the appellant had received from the particular criminal conduct. That was an amount of £729,536.35. He said that he was entitled to assume that the recoverable amount was the amount of the benefit but that it was open to the appellant to demonstrate that the amount available to him was less than the amount of the benefit. The Recorder said the prosecution case was that the evidence was that the appellant had in fact obtained money from the fraud and that it was inconceivable that the money was no longer available. The prosecution pointed to the images of the appellant wearing expensive watches and handling large bundles of cash. The Recorder also noted the comments made by the appellant about looking to the future and wanting to save. The Recorder then considered the appellant's evidence and his case that he had received a limited amount of money from the crime and he had frittered that away on day-to-day living expenses and lifestyle. The Recorder concluded that the appellant had not given a reliable account. The Recorder gave a number of reasons for that conclusion. • First, the account was inconsistent with the offence and the role that the appellant had played, namely a leading role in the conspiracy involving loss to the victims of initially £680,400 but that amount was now worth £729,000 approximately. • Secondly, the Recorder took into account the images in the videos on social media showing the appellant wearing the Rolex watches and in possession of large amounts of cash, which, as the Recorder observed, appeared to be in multiples of many thousands of pounds • Thirdly, in relation to the screenshot of the £192,500 in the bank accounts, the Recorder noted the appellant's account that it was a screenshot of a victim's accounts, but he also noted that the appellant could not identify the victim and there was nothing in any of the other evidence to tie those amounts with any victim. Further, the appellant had not suggested in the section 17 statement that the screenshot was of victims' bank accounts. In addition, the Recorder noted that the appellant had admitted that he had one asset — the bitcoin account with £6,000 to £7,000 in it. The Recorder concluded that the appellant's evidence "was implausible, not reliable, and I'm not satisfied that he has demonstrated that the benefit figure is not available to him. I am satisfied that it is. The inference is that it is hidden in some way ..." The judge then moved on to consider what the proportionate order would be. The prosecution was only seeking an order in the amount of £246,071 as being the available amount. That reflected their estimated value of the watches and the money in the bank accounts. The Recorder noted that the appellant was one of five persons in the conspiracy and had played a leading role. As such he was likely to have received more than one-fifth of the total proceeds. In all the circumstances he concluded that it was proportionate to order the appellant to pay the sum of £246,071. He ordered that the appellant serve a term of 2 years and 6 months' imprisonment if he failed to pay that sum by a stipulated date. The statutory framework The issue of principle in this case concerns whether a court has a power to hear evidence from a defendant via a live link. It is helpful to set out the relevant provisions of the 2003 Act as originally enacted and as substituted at various stages. Section 51 as originally enacted Section 51 as originally enacted provided, so far as material, as follows: " 51. Live links in criminal proceedings (1) A witness (other than the defendant) may, if the court so directs, give evidence through a live link in the following criminal proceedings. (2) They are— (a) a summary trial, (b) an appeal to the Crown Court arising out of such a trial, (c) a trial on indictment, (d) an appeal to the Criminal Division of the Court of Appeal (e) the hearing of a reference under section 9 or 11 of the Criminal Appeal Act 1995 (c.35), (f) a hearing before a magistrates' court or the Crown Court which is held after the defendant has entered a plea of guilty, and (g) a hearing before the Court of Appeal under section 80 of this Act. (3) A direction may be given under this section— (a) on an application by a party to the proceedings, or (b) of the court's own motion. (4) But a direction may not be given under this section unless— (a) the court is satisfied that it is in the interests of the efficient or effective administration of justice for the person concerned to give evidence in the proceedings through a live link. ..... (6) In deciding whether to give a direction under this section the court must consider all the circumstances of the case. (7) Those circumstances include in particular— (a) the availability of the witness, (b) the need for the witness to attend in person, (c) the importance of the witness's evidence to the proceedings, (d) the views of the witness, (e) the suitability of the facilities at the place where the witness would give evidence through a live link, (f) whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness's evidence. (8) The court must state in open court its reasons for refusing an application for a direction under this section ..." At various times during the Coronavirus pandemic section 51 was amended. During the pandemic, of course, different measures were taken and different restrictions imposed at various times to reduce the risk of the Coronavirus spreading by reducing the opportunities for people to meet or be in the same place. Paragraph 2 of Schedule 23 to the Coronavirus Act 2020 amended section 51. It provided, amongst other things, that 51(1) be substituted with the following subsection: "(1) A person may, if the court so directs, take part in eligible criminal proceedings through— (a) a live audio link, or (b) a live video link. (1A) A direction under this section may be given for a judge or justice to take part in eligible criminal proceedings through a live audio link or a live video link. (1B) But no direction under this section may be given for any member of a jury to take part in eligible criminal proceedings through a live audio link or a live video link." Those provisions were in force until they were repealed on 27 June 2022. The current provisions of the 2003 Act Various sections of the 2003 Act were substituted with effect from 28 June 2022 by the 2022 Act. Section 51, so far as it is material to this appeal, provides as follows: "Directions for live links in criminal proceedings (1) The court may, by a direction, require or permit a person to take part in eligible criminal proceedings through— (a) a live audio link, or (b) a live video link. (2) A direction under this section may be given in relation to a member of a jury only if the direction requires all members of the jury to take part through a live video link while present at the same place. (3) In this Part 'eligible criminal proceeding' means— ... (o) a sentencing hearing ... (4) The court may not give a direction under this section unless— (a) the court is satisfied that it is in the interests of justice for the person to whom the direction relates to take part in the proceedings in accordance with the direction through the live audio link or live video link, (b) the parties to the proceedings have been given the opportunity to make representations, and (c) if so required by section 52(9), the relevant youth offending team has been given the opportunity to make representations. (5) In deciding whether to give a direction under this section, the court must consider— (a) any guidance given by the Lord Chief Justice, and (b) all the circumstances of the case. (6) Those circumstances include in particular— (a) the availability of the person to whom the direction would relate, (b) any need for that person to attend in person, (c) the views of that person (d) the suitability of the facilities at the place where that person would take part in the proceedings in accordance with the direction, (e) whether that person would be able to take part in the proceedings effectively if the person took part in accordance with the direction, (f) in the case of a direction relating to a witness— (i) the importance of the witness's evidence to the proceedings, and (ii) whether the direction might tend to inhibit any party to the proceedings from effectively testing the witness's evidence, and (g) the arrangements that would or could be put in place for members of the public to see or hear the proceedings as conducted in accordance with the direction." There are provisions in section 56 governing the interpretation of Part 8 of the 2003 Act. The material provisions were amended by the 2022 Act. Live audio link and live video link are defined. The section provides that a defendant "includes a person accused of convicted of an offence ..." . Witness "in relation to any criminal proceedings means a person called or proposed to be called to give evidence in those proceedings". Sections 56(1A) and 1B, as inserted by the 2022 Act, provide that: "(1A) In this Part, reference to taking part in proceedings means taking part in whatever capacity, including hearing the proceedings as a member of the court. (1B) In the application of this Part in relation to a witness, a reference to taking part in proceedings includes attending those proceedings for a purpose preliminary or incidental to the giving of evidence." The history of the legislative provisions was outlined by this court in R v Pierini [2023] EWCA Crim 1189 . Ground 1 — whether there is a power to hear evidence from a defendant via a live link. Mr Rosser for the appellant accepted that section 51 of the 2023 Act permitted a person to take part in eligible criminal proceedings, which includes a confiscation hearing. He submitted, however, that the power to enable a person to take part does not extend to permitting a defendant to give evidence during criminal proceedings. Mr Rosser submitted that the meaning of "a witness" does not extend to a defendant and that a distinction needs to be drawn between a witness and a defendant. He submitted that that approach was consistent with the guidance issued by the Lord Chief Justice pursuant to section 51(5) of the 2003 Act. He referred to paragraph 3 of the guidance which says that: "A live link direction may only be made in respect of those who are taking part in the proceedings, (including, counsel, solicitors, witnesses and defendants)." That again, he submitted, drew a distinction between witnesses and defendants. Paragraphs 8-11 of the guidance deals with defendant's attendance at hearings. Paragraph 15 deals with witnesses and refers to a court allowing a witness to give evidence by live link. Mr Rosser submits that the distinction between a defendant attending a hearing by live link and a witness who may give evidence by live link was reflected in that guidance. In relation to the decision of this court in Pierini , Mr Rosser submitted that the court did not ultimately have to deal with the question of whether or not a power to allow a defendant to give evidence by live link was available because it concluded that it was not in the interests of justice in any event for any such power to be exercised. Further, the Court of Appeal in that case did not refer to section 56 and the definition of a defendant and a witness. Ms Dyer for the respondent submitted that section 51 does enable a live link to be used when it is in the interests of justice to do so. She submitted that the section enabled the court to permit witnesses to give evidence via live link including a defendant, and she set those arguments out in her very helpful skeleton which we have read. Discussion and conclusion On a proper interpretation of section 51 of the 2003 Act, a court does have power to give a direction requiring or permitting a defendant to give evidence through a live audio link or a live video link. That conclusion follows from the wording of section 51 itself. First, the section applies to "a person". Secondly, section 56 defines "taking part" as "taking part in whatever capacity". "A person" includes a defendant (i.e. a person accused or convicted of a criminal offence). Such a person may take part in any capacity. That may include, for example, pleading to the charge or having an application made on his behalf. It may include giving evidence during the course of the proceedings. The words of section 51 confer a power to enable the defendant to take part, and that includes a power to hear evidence from the defendant via a live link. The circumstances in which a court may exercise that power are then prescribed in section 51(4): the court must be satisfied that it in the interests of justice for the person to take part in proceedings and the parties must have been given the opportunity to make representations. Further, a court must consider any guidance given by the Lord or Lady Chief Justice and all the circumstances of the case. That interpretation is supported by the legislative history of section 51 of the 2003 Act. As originally enacted, section 51 provided a power for a court to direct that "a witness other than a defendant" may give evidence via a live link. First, that power was limited to the giving of evidence. Secondly, Parliament must have understood that a reference to a witness would, unless other provision was made, include a defendant giving evidence. That is why section 51(1) referred to "a witness (other than a defendant)". Further, Parliament must have understood that conferring a power on a court to enable a witness to give evidence would normally have included defendants who were giving evidence, otherwise it would not have been necessary for Parliament specifically to exclude a defendant from the definition of those witnesses who may give evidence via video link. The obvious purpose of the substituted section 51 of the 2003 Act is to remove limitations on the ability of courts to direct that matters can be dealt with via a live link. That is reflected in the fact that the reference to "a witness" in the opening words of section 51 has now become a reference to "a person". That is clearly intended to broaden the scope of the persons to whom the section applies. Further, the section is no longer limited to the giving of evidence. It concerns persons "taking part in proceedings", and that is in turn defined to include "taking part in any capacity". It may include the giving of evidence by a person; it may include other steps involving taking part — such as, eg, pleading guilty or not guilty to a charge, which will only be relevant to a defendant. The legislative history confirms that the intention of Parliament was to enable a broader range of matters to be dealt with via a live link if the requirements of section 51(4) were satisfied. We do not consider that the guidance issued by the Lord Chief Justice suggests any different result. Paragraph 3 of that guidance is summarising when a live link may be used, i.e. in respect of those taking part in the proceedings. It recognises that that includes a number of different persons, such as counsel, solicitors, witnesses and defendants. It was not seeking to define or limit to the meaning of "taking part" and was not suggesting that a live link cannot be used in appropriate circumstances to enable a defendant to give evidence. Similarly, paragraphs 8-11 of the guidance dealt with some of the situations in which a defendant may be required or permitted to attend a hearing via a live link. It was not seeking to, and could not, limit the scope of the powers conferred by Parliament in section 51 of the Act itself. Finally, we do not consider that the decision in Pierini assists the appellant. Indeed, if anything, it is inconsistent with his submission. There, there was a refusal of an application by a defendant to participate by live link from abroad and the defendant wanted to give evidence via the live link. The court did decide that it was not in the interests of justice for the application to be granted. But at the very least the Court of Appeal in that case assumed that the power to require or permit a defendant to give evidence via a live link existed. In any event, for the reasons that we have given, we consider that such a power exists. The court may, pursuant to section 51, direct that a defendant, such as the appellant, give evidence at a confiscation hearing via a live link, and we therefore dismiss Ground 1 of the appeal. Ground 2 — whether the discretion was properly exercised Mr Rosser submitted that the Recorder should not have exercised the discretion to hear evidence via CVP or should have stopped the hearing when difficulties became apparent. Mr Rosser referred to the learning difficulties that the appellant has. He submitted that the Recorder should have kept the position under review but he abdicated that function to counsel. Further, Mr Rosser identified specific points at the hearing by reference to the transcript where there were difficulties, he submitted, with hearing the answers of the appellant and suggested that the Recorder may have misunderstood the answers. Discussion and conclusion A court may make a direction for a live link if satisfied that it is in the interests of justice to allow a person to participate by a live link and if the parties to the proceeding are given the opportunity to make representations: see section 51(4). A court must also have regard to the guidance issued by the Lord or Lady Chief Justice and all the circumstances of the case: see section 51(5). Those circumstances include the matters set out in section 51(6). In considering whether to make such a direction, it is appropriate to bear in mind the nature of the hearing, the nature of the issues that arise, the nature of the participation in question and any other relevant circumstance. The situation in the present case involved a confiscation hearing before a judge. The issue was whether the appellant could show on the balance of probabilities that the amount of money available to him was less than the benefit that he had received from the criminal conduct. That would require the appellant to give evidence. This was not however a case of a defendant giving evidence before a jury, where different considerations as to what is in the interests of justice may arise. The Recorder was well aware that he could only give a direction if it was in the interests of justice to do so. He identified that at the very outset of the proceedings. The particular concern that he had was the time that it had taken to fix the confiscation hearing and the prospect of further delay if it did not proceed on that day and was adjourned to another day. The need to avoid delays and disruption is identified at paragraph 3 of the Lord Chief Justice's guidance as a situation where it may be in the interests of justice for a defendant to attend a hearing via a live link. The Recorder gave the parties, including in particular counsel for the appellant, an opportunity to make representations as to why the appellant should give evidence in person and not via live link. The potential problem the counsel for the appellant foresaw was the need for the appellant to give evidence and in particular to be shown videos and still images. The Recorder considered that that could be dealt with fairly, and if it did not prove possible in the course of the hearing, then he would review matters. We are satisfied that the Recorder did properly exercise his discretion to make the direction that he made. Further, we do not consider that anything that occurred during the hearing suggested that it had been or became unfair, or that the Recorder should have stopped the hearing. We have read the entirety of the transcript. The key issue was that the appellant should have a fair opportunity to give evidence to demonstrate on a balance of probabilities that the amount of money or assets available to him was less than the benefit he had. He was given that opportunity. He had already made his section 17 statement setting out his case. In his evidence he explained again why he said he did not have any realisable assets. He was shown the video images and the still images, and he gave his explanations as to why he was wearing Rolex watches but he did not have them any longer, and why, even though he was shown standing next to large sums of money, he did not in fact have that money. He gave his explanation for having a screenshot on his phone of bank accounts containing £192,500. He explained what he meant by saving and looking to the future. The hearing, we are satisfied, was entirely fair. The Recorder gave clear, comprehensive reasons as to why he found the appellant's evidence implausible and unreliable. The reasoning does not display any error. We will deal with one specific point. Mr Rosser pointed to one point in the transcript where prosecuting counsel cut off the explanations in response to a question. Reading that section of the transcript, the appellant was trying to explain that although he had pleaded guilty he had not in fact played a leading role in the conspiracy. The Recorder was not required, nor would it be appropriate for a judge at a confiscation hearing to reopen the basis upon which the appellant had been sentenced. Indeed, as the Recorder noted, the judge who had sentenced the appellant and the other defendants (three of whom had received a trial) knew far more of the facts than he did. For those reasons he took into account the finding of the sentencing judge that the appellant was one of the leading figures in the conspiracy. The Recorder was entitled to proceed on that basis. A confiscation hearing is not an opportunity to reopen the basis upon which a sentence was passed. Ground 3 — whether the judge made incorrect factual findings Mr Rosser submitted that the Recorder made incorrect factual conclusions and therefore erred in determining that the available amount was the £276,071. He submitted that the Recorder must have relied upon the prosecution evidence relating to £192,500 in bank accounts, but no investigation had been done by the prosecution to establish who owned those accounts; all the prosecution had been able to establish is that the appellant did not have accounts for those balances. He further submitted that there was no evidence as to the value of the Rolex watches. We can deal with this ground shortly. The Recorder in this case had to decide if the appellant had benefited from this particular conduct: see section 6(4)(c) of the 2002 Act. He decided that the appellant had. This was a conspiracy to defraud where the victims lost £680,400 — a sum that had by the time of the confiscation hearing increased in value to £729,536.35. The Recorder was satisfied that the appellant had benefited from his criminal conduct. The benefit figure was not disputed. The recoverable amount is an amount equal to the defendant's benefit unless the defendant can show that the available amount is less than the benefit. Here, the Recorder was not satisfied that the appellant had shown that he had an amount available which was less than that benefit. He disbelieved the appellant's evidence for the reasons he gave. The Recorder also recognised that any order had to be proportionate. In that regard he tested the proportionality of the order in a number of ways. • First, he considered that there were five conspirators, and if the proceeds had been divided equally, the appellant would have received about £150,000. As in fact the appellant played a leading role in the conspiracy, it is likely that he had received more than a one-fifth share of the proceeds. We would also remind ourselves, of course, that the Recorder did not believe the appellant's evidence that he did not receive much money from the conspiracy. The Recorder did not believe that it had been spent on living expenses, and there were also the images of the appellant wearing Rolex watches and having large amounts of cash, and his comments that he was saving and looking to the future. In all the circumstances the Recorder was entitled to reach the conclusion that the appellant had available a sizeable proportion of the benefit from the conspiracy. • Secondly, he considered the amount of the order that the prosecution were seeking. That was £246,071, to reflect the estimated value of the Rolex watches, the money in the accounts showing the snapshot on the appellant's phone, and indeed the £120 in the appellant's own bank account. An order in that sum one would be proportionate. In all the circumstances, the Recorder did not make factually incorrect conclusions. He considered that he was entitled to conclude that the appellant had received a substantial proportion of the proceeds from the conspiracy and that was still available to the appellant. The appellant had not shown on a balance of probabilities that the money was not available to him. We would dismiss this ground of appeal. Conclusion In conclusion, therefore, we will dismiss this appeal. We are satisfied that section 51(1) of the 2003 Act does empower a court to direct that a defendant may give evidence via a live link in the proceedings listed in section 51(2). That power may be exercised if the conditions in section 51(4) are met. Having given the parties the opportunity of making representations, the Recorder was entitled in the circumstances of this case to take the view that it was in the interests of justice that the appellant give evidence in these confiscation proceedings via a live link. The hearing was fair and the appellant did have the opportunity to give his evidence. The Recorder reached conclusions and disbelieved the appellant in circumstances where he was entitled to reach those conclusions on the evidence before him. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII