Issue 189  17th April 2021

This is an application by the prosecutor (London Borough of Barnet: 'LBB') pursuant to s.31(1) Proceeds of Crime Act 2002 (POCA) for leave to appeal the Confiscation Order in the sum of £270 imposed on the respondent, Mr Hamid Kamyab, by HHJ Cole in the Crown Court at Harrow on 16 December 2019 following his ruling against LBB on a preliminary point...

Unlike the judge, we have the benefit of this Court's subsequent decision in Roth. The reasoning in that decision applies equally to the present case. On its proper construction the summons does not confine the respondent's offending to a single day. On the contrary, it identifies the (extended) date for compliance (1 June 2013) and the offence continuing thereafter. As in Roth, this is in contrast to the different language of the summons in Panayi. Further, and in any event, whether an offence is by its nature a continuing offence or a "once and for all" offence is a matter of construction of the offence creating provision, as explained in Hodgetts and Russnak-Johnston. Where, as here, the nature of the offence charged is that it is a single offence which is committed throughout the period of non-compliance we would suggest that it would require very clear words in the summons and in the presentation of the case to limit it to a particular day. No rational prosecutor would wish to proceed in that way without some wholly exceptional circumstance, and no rational defendant would understand the charge as being limited to one day unless the prosecutor specifically said that this was the position. Once the offence is a continuing offence starting at the expiry of the date for compliance and ending, if at all, at some point thereafter, the end date is not, we would suggest, a material averment in the determination of guilt. If it is disputed, which it was not in this case, it will be a matter for the trial court to determine if it is relevant to sentence. Absent some special circumstance, the court is not constrained in that exercise by dates in a summons or an indictment. Still less is it constrained when dealing with confiscation because of the terms of ss.8 and 76 of POCA...

...We hold that there is no power to remit the case to the Crown Court following a successful prosecution appeal under s. 31(1) of POCA. This is because of the clear terms of s. 32(1)... Therefore, on this one occasion only, the court is prepared to make the following order... The court will consider at a further hearing what the remedy should be and whether to vary the confiscation order made by the Harrow Crown Court, and will conduct a confiscation hearing in order to do so.

This appeal raises the issue of whether the appellants had a reasonable excuse, within the meaning of the Stonehenge Regulations 1997, for entering the stone circle at Stonehenge on 4 February 2018 and 6 May 2018...

For the detailed reasons set out above I would answer the stated questions as follows: (1) the Court was not wrong when it reached its determination on proportionality because there was sufficient evidence to show that the restrictions on the appellants' rights were justifiable and proportionate; and (2) the Court was not wrong in its analysis of regulation 3(h) of the Stonehenge Regulations because, on the relevant facts, the appellants did not have a reasonable excuse for entering the stone circle at Stonehenge to which access was restricted by barrier and prohibited by notice.