Confiscation - Extradition to UK for Confiscation

CAN DEFENDANTS BE EXTRADITED BACK TO THE UK IN CONFISCATION ENFORCEMENT PROCEEDINGS TO SERVE A TERM OF IMPRISONMENT IN DEFAULT ?


Written February 2014 by:

Emma Stuart Smith - 25 Bedford Row - Called 2009


Emma has an exclusively Criminal Defence practice which includes Serious Violence, Sexual Offences, Drugs, Money Laundering and Fraud offences. She has extensive experience of Confiscation Proceedings and enforcement and is also instructed in Extradition proceedings.

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  • An individual can be extradited back to the UK for two purposes: either 1) to be prosecuted for an offence or 2) to be sentenced or to serve a sentence of imprisonment imposed in respect of an offence. Having been extradited for the specific offence in the warrant, the individual is then protected by the rule of specialty from being prosecuted or punished for other offences committed before the extradition (save for where certain exceptions apply). 

  • Therefore, whether someone can be extradited back to the UK to serve a default term for a confiscation order depends on whether it can be said fall into either of the two purposes, or whether it falls beyond the scope of an extradition request as civil proceedings.

  • The issue was considered in the case of The Queen (on the application of the Director of Revenue and Customs Prosecutions) v Birmingham Magistrates' Court v Raymond Woolley [2010] EWHC (Admin) 12. The High Court held that a default term for the confiscation order was part of the sentence for that order. Hence, where the extradition was requested for the individual to serve the sentence for an offence, the individual can also be required to serve the sentence of imprisonment in default of the confiscation order for the same offence. 

    The Facts in Woolley MrWoolley had been sentenced to 9 years imprisonment for conspiracy to cheat the public revenue, receiving no separate penalty for money laundering offences. In February 2005 he walked out of an open prison having served less than half of his sentence; he fled to Switzerland.
  • On 3rd March 2005 Birmingham Crown Court made a confiscation order with a four-year term of imprisonment in default. Mr Woolley was absent but represented by counsel. On 3rd April 2007 an enforcement and receivership order was made against Mr Woolley to recover the unpaid sum.

  • On 6th February 2008 the UK Government issued a request to the Swiss Government for Mr Woolley’s extradition on the basis that he had been convicted of the conspiracy and secondly that he was accused of escape from lawful custody. A diplomatic note stated that the confiscation order was part of the sentence passed for the conspiracy; his extradition was not sought in respect of non-payment of the order, it was sought to finish serving his sentence and for the offence of escape. (Ultimately it was accepted by the prosecution that this note was “unhappily worded”.)

  • There were subsequent diplomatic notes in which the UK HMRC Prosecution office stated that there was no charge in existence or proposed for non-payment of the confiscation order and his extradition was not sought in respect of that.

  • Having been extradited in relation to his conviction for the conspiracy, the Prosecutor’s Office applied to enforce the four-year term of imprisonment in default. 

  • Mr Woolley argued that the proceedings were barred by the rule of specialty. In the alternative it was argued that the proceedings were an abuse of process. The hearing in the Magistrates Court was adjourned to allow the parties to bring judicial review proceedings.

    The High Court Decision 
  • The High Court held that the default term formed part of the original sentence, it being an integral part of the confiscation order which was (and was agreed between the parties) to be part of the original sentence as per s.50 of the Criminal Appeal Act 1968. It therefore formed part of the sentence imposed upon Mr Woolley for the convictions/offences for which he was extradited. Therefore, there was no infringement of the rule of specialty, nor any abuse of process (see paras.22-32).

  • Mr Woolley’s argument that enforcement of the default term involved proving the commission of a further separate offence was rejected. His alternative argument, that there must be a mechanism for dealing with the express reservation of the Swiss authorities (that extradition was not sought for non-payment of the confiscation order), was also rejected. The Court held that this reservation was made due to a misunderstanding by the Swiss authorities of the extent of the UK’s clearly expressed request.

  • The ECHR agreed with the findings of the High Court and found no violation of Article 5 or 6: Woolley v The United Kingdom, Application no.28019/10.

  • Applying this judgment, a person can be extradited for a sentence of imprisonment in default of a confiscation order but only if the extradition request was in respect of the offence for which it was imposed. Conversely, if a person is extradited for an offence other than that for which the confiscation order was imposed, subsequent enforcement of the default term would breach the rule of specialty.

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Expert Confiscation Solicitor: 
Majad J Habib: Director - Stuart Miller Solicitors

The expert Confiscation Solicitors at Stuart Miller Solicitors are proficient with Confiscation legislation, knowledgeable in creating the best strategy & able to analyse huge volumes of evidence to find the grain of detail required to achieve success for you. Having Specialist Confiscation Lawyers on your side is vital to achieve the best result and ensure fairness in the proceedings. Challenging Confiscation proceedings successfully is not a stroll in the park by any means, thus ensuring your Confiscation Solicitors are leading experts will maximise your chances of retaining your assets and avoiding additional jail time.

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This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of its content.