CA guidance on disclosure in confiscation cases

In Onuigbo [2014] EWCA 65 the Court of Appeal was concerned with a confiscation order in the sum of £2.6m made following conviction for various money laundering offences arising out of fraudulent conduct in Nigeria which spanned a period of about 6 years prior to and after the enactment of POCA 2002. In fact, the appeal against the making of the Order was decided on the basis of an issue relating to the procedure whereby benefit had been quantified which the appellant successfully challenged as being unfair. Of greater interest to practitioners were the comments made obiter about a lien held by the former solicitors over case papers and also guidance regarding prosecution disclosure obligations.  Regarding the lien Pitchford LJ said: "it seems to us that if the solicitors discharged themselves for non-payment they have had a difficult time maintaining the justification for their lien upon an application to the High Court for the release of those papers in the interests of justice" (emphasis added). The fact that the solicitors exercised the lien led to a dispute with the Crown over its disclosure obligations in confiscation proceedings to which Pitchford LJ said: "assuming that the material is, in this sense, available for use, the prosecutor's function is the same as it would be in preparation for trial".