England and Wales Court of Appeal (Criminal Division) Decisions

SHEVKI and Michael John STEELE, R v. [2000] EWCA Crim 70 (14th December, 2000)

Cases: 2000/2948/Y3 & 1999/5880/Z2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 14th December 2000

LORD JUSTICE JUDGE:

1. In view of the dates on which the confiscation orders in these cases purported to be made, these appeals, which are otherwise wholly unconnected, raise important questions about the jurisdiction of the Crown Court under the Drug Trafficking Act 1994. The critical question in them both is whether, given the dates on which the orders were made, there was jurisdiction in the Crown Court to make them, or either of them.

R v Shevki

2. In the Crown Court at Wood Green, this appellant was jointly indicted with Khemphand Sajnani on two counts of conspiracy to contravene s20 of the Misuse of Drugs Act 1971.

3. The allegations related to the supply of heroin in Belgium. A very brief recital of the relevant facts will suffice. An undercover police officer was in contact with Sajnani, who told the him that he had a contact who could supply good quality heroin. On 10th October 1996 the officer met Sajnani. He paid £20,000 in cash for 1 kilogram of heroin to be supplied, unknown to Sajnani, to another undercover officer. Sajnani was given the name of the hotel at which the second undercover officer was staying. He contacted the appellant to make arrangements for the delivery, and she indicated that she wanted the officer receiving the heroin to hire a car and leave it unattended in a location identified by her. The heroin would then be left in the car. Those arrangements were duly organised. The delivery of heroin went ahead.

4. A week later Sajnani met the appellant and the first undercover officer with whom he was dealing. A second delivery was arranged. On this occasion 13 kilograms of heroin were involved. The arrangement was for the heroin to be left in the boot of a car in Brussels in exactly the same way as before. £247,000 was paid in cash to Sajnani. The arrangements were subsequently altered so that there would be two deliveries, the first, 5 kilograms, followed subsequently by delivery of the remainder. The 5 kilograms were delivered and Belgian police arrested the men who delivered it. The appellant telephoned Sajnani to confirm this delivery. On 23rd October both the appellant and Sajnani were arrested in central London.

5. Sajnani pleaded guilty at the first opportunity. He was sentenced to 7 years imprisonment. Having pleaded not guilty at the outset, the appellant changed her plea to guilty before His Honour Judge Finney on 12th November 1997. On 5th December 1997 she was sentenced to 9 years imprisonment on each count, a sentence which was subsequently reduced on appeal to 7 years imprisonment.

6. On 12th June 1998 a confiscation order was made under the 1994 Act in the sum of £59,647.80, to be paid by 12th December 1999. In default a sentence of 2 years imprisonment, consecutive to the 7 year sentence, was ordered.

R v Steele

7. This appellant was jointly charged with Jack Whomes with 3 counts of murder and one count of conspiracy fraudulently to evade the prohibition on the importation of a class B drug (cannabis resin) (count 1). Peter Corrie was similarly indicted with the drug related offence.

8. The conspiracy offence related to three distinct importations of cannabis resin in August, October and November 1995. Mr Steele invited us to record that he did not accept the truth of the Crown's case in respect of any allegation against him. That noted, in relation to the first importation the Crown alleged that the appellant, together with Corrie and a man called Nicholls travelled to Amsterdam leaving money with a foreign supplier. They returned to the United Kingdom without any drugs. Subsequently they went back to Amsterdam, where they collected drugs, and delivered them to the appellant at a pre-arranged meeting place on the coast of Belgium, where the appellant met them in a reinforced inflatable boat. The drugs were placed in the boat. Corrie then joined the appellant. They both returned to the United Kingdom.

9. The second importation allegedly involved Nicholls travelling to Amsterdam with another friend. Having bought drugs, Nicholls met the appellant at the same pre-arranged meeting place in Belgium. He returned with the appellant in his boat to the United Kingdom. The drugs were delivered to Whomes.

10. The third importation was alleged to have involved Nicholls collecting a large sum of money from the appellant, Whomes, and others, including a man called Tate, and travelling with Corrie to Amsterdam, where drugs were collected and then taken to the same pre-arranged meeting place. The drugs were delivered to the appellant in a boat, and he returned to the United Kingdom with Corrie. There was evidence that complaints were made about the quality of the cannabis supplied in this consignment, and the supplier in Amsterdam admitted that some was inferior, so the appellant and Nicholls returned to Amsterdam to obtain a refund.

11. The Crown's case was that there was considerable ill feeling between the appellant and Tate. On 7th December 1995 three victims, including Tate, were found dead in a landrover parked on a farm track in Essex. They had suffered wounds inflicted by a shotgun fired at close range.

12. The Crown alleged that during April and May 1996 the appellant was concerned with others in two further drug importations. During May 150 kilograms of cannabis resin with a street value of £330,000, was discovered in a garage at 1 Allen Way, St Ososyth, in Essex.. The appellant was arrested and interviewed about his suspected involvement in the importations. He exercised his right to remain silent. On 17th May he was charged with conspiracy to import controlled drugs, and on the same day charged with the murders of Tate and the two other men whose bodies were found in the landrover.

13. At trial the Crown's case depended heavily on the evidence of Nicholls, on his own admission, an accomplice in the importation of drugs, and a crucial witness to the murders. Indeed the prosecution accepted that in relation to the counts of murder they had no case without him, and that his evidence was also central to the Crown's case of conspiracy to import drugs. Nicholls' evidence, in summary form, was that the three victims had been lured to the place where their bodies were found, and had then been shot by the appellant and Whomes or one or other of them.

14. Nicholls' evidence, and his credibility, was subjected to a sustained attack. He was later described by the Lord Chief Justice, presiding over the court which dismissed the appellant's renewed application for leave to appeal against conviction, as "a man with a criminal record, with a demonstrated willingness to lie and a relationship with a corrupt police officer".

15. On 20th January 1998 in the Central Criminal Court, before Hidden J and a jury, the appellant was convicted of all three counts of murder, and conspiracy to import drugs. So was Whomes. Corrie was convicted of the drug importation offence. The prescribed sentence for murder was imposed. In relation to the importation of drugs, on 4th March the appellant was sentenced to 8 years imprisonment, Whomes to 6½ years imprisonment, and Corrie to 4½ years imprisonment.

16. The appellant was charged on a separate indictment with criminal involvement in the two drug importations in April and May 1996. After a separate "old style committal" he was committed for trial to Chelmsford Crown Court, and arraigned on 27th January 1997. The indictment was subsequently transferred for trial at Woolwich Crown Court, where it was due to be heard in September 1998. As a result of an order for severance, made, as we understand it, either shortly before or when the trial was due to begin, the appellant was not tried with his co-accused. The case against them proceeded, and after the end of this trial, on 13th November 1998, in his absence, the prosecution invited the court to allow the indictment against him to lie on the file, not to be proceeded with without leave of the court or the Court of Appeal Criminal Division . The court made an order accordingly.

17. On 24th August 1999 in the Central Criminal Court before His Honour Judge Gordon, a confiscation order was made under s2 of the 1994 Act consequent on the appellant's conviction in January 1998 in the sum of £2122. A consecutive term of 45 days imprisonment was ordered in default.

Confiscation Orders

18. Some of the difficulties arising in relation to confiscation orders and postponed determinations, are perhaps best illustrated by the recent commentary in Sentencing News, Issue 3, 2000, edited by Dr David Thomas, which suggests that two decisions of this court, presided over by Lord Bingham CJ and Rose LJ, Vice President of the Court of Appeal Criminal Division, respectively, and decided within three months of each other, are "irreconcilable". (R v Miranda [2000] 2 CAR(S) 347 and R v Lingham [2000] CLR 696). We have had the benefit of a detailed analysis of all the relevant authorities by Mr John McGuiness, counsel for the respondent in Mr Steele's appeal. We are very grateful to him for the careful way he marshalled and presented them, and suspect that, as a result, we are better informed of all the relevant authorities than any previous court considering the issue of postponed determinations.

19. The jurisdiction to make confiscation orders involves two separate statutory schemes. The Drug Trafficking Act 1994, which applies to both these appeals, represents the consolidated form of the Drug Trafficking Offences Act 1986, as amended by the insertion of s1A, by the Criminal Justice Act 1993. This is now s3 of the 1994 Act, and applies to proceedings instituted on or after 3rd February 1995. For present purposes the significant effect of the amendment is that it removed the statutory prohibition against the court passing sentence before it had dealt with confiscation issues. Until then the unavoidable statutory sequence was confiscation issues first, followed by sentence. If that sequence could not be followed, the entire process had to be adjourned. The effect was unfortunate. On occasions defendants were left ignorant of the sentence which was to be imposed on them many months after the time when the judge knew precisely what sentence would be imposed, and when, on any reasonably humane sentencing principles, sentence should have been pronounced. The amendment therefore permitted some much needed flexibility.

20. The confiscation arrangements for offences other than drug trafficking offences (as defined in the 1994 Act) are governed by the Criminal Justice Act 1988, as amended by the Criminal Justice Act 1993 which inserted s72A into the 1988 Act, further amended by the Criminal Justice and Public Order Act 1994, and yet further amended by the Proceeds of Crime Act 1995. The introduction of s72A produced a similar degree of flexibility to compensation orders made under the 1994 Act. Until then, the same rigid sequence, confiscation order first, sentence afterwards, and the consequent process when this sequence could not be followed, adjournment of both questions, applied.

21. If we may say so in passing, an essential prerequisite to any confiscation order, and indeed to any proper analysis of any reported decision of this court on the topic, is to decide, first, which of the two similar but not identical statutory schemes applies or applied to the case under consideration, and second, and perhaps more difficult, to identify which particular parts of the statutory schemes are or were currently in force. The simple fact that a confiscation order was made, or upheld, or quashed in this court, often but does not necessarily mean that the same reasoning process should or does apply either to a confiscation order made under the alternative scheme, or even to an order made under the scheme at a time when different statutory provisions were in force.

22. Before considering any of the decided cases, we must set out the relevant statutory code. Section 2 of the Drug Trafficking Act 1994, so far as relevant to these appeals, provides:

"Confiscation orders

(1) ...... , where a defendant appears before the Crown Court to be sentenced in respect of one or more drug trafficking offences ....., then

(a) if the prosecutor asks the court to proceed under this section, or

(b) if the court considers that, even though the prosecutor has not asked it to do so, it is appropriate for it to proceed under this section,

it shall act as follows.

(2) The court shall first determine whether the defendant has benefited from drug trafficking.

......

(4) If the court determines that the defendant has so benefited, the court shall before sentencing or otherwise dealing with him in respect of the offence ....... determine in accordance with s5 of this Act the amount to be recovered in this case by virtue of this section.

(5) The court shall then, in respect of the offence or offences concerned

(a) order the defendant to pay that amount;

(b) take account of the order before ....

(c) subject to paragraph (b) above, leave the order out of account in determining the appropriate sentence or other manner of dealing with him.

....

(9) In this Act "confiscation order" means an order under this section and includes, in particular, such an order made by virtue of s13, s14, or s19 of this Act."

23. Dealing with the matter generally, assuming that the defendant has appeared to be "sentenced", the court must "determine" a number of questions, including whether the defendant has benefited from drug trafficking, and if so, the amount "to be recovered in his case". Subsequent provisions enable the defendant to provide material for consideration by the court. Having determined the amount to be recovered, the court makes the confiscation order, but, subject to the limited exceptions defined in s2(5)(b) leaves that out of account in deciding the appropriate sentence. The determination should normally have been concluded before sentence is passed (s2(4)), and any consequent order should, again normally, form part of the sentencing decision. In effect, as far as the statute is concerned, it appears to be anticipated that the normal sequence will remain, confiscation issues first, with sentence to follow, but as we shall see, s3(7) allows the determination of the confiscation issues to be postponed, and notwithstanding such postponement, permits the court to proceed to sentence the defendant.

24. Section 3 provides for the postponement of the determination. The relevant provisions are:

"(1) Where the Crown Court is acting under s2 of this Act and considers that it requires further information before

(a) determining whether the defendant has benefited from drug trafficking, or

(b) determining the amount to be recovered in his case by virtue of that section,

it may, for the purpose of enabling that information to be obtained, postpone making the determination for such period as it may specify.

(2) More than one postponement may be made under sub-section (1) above in relation to the same case.

(3) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under sub-section (1) which

(a) by itself, or

(b) where there have been one or more previous postponements under sub-section (1) above or (4) below, when taken together with the earlier specified period or periods,

exceeds six months beginning with the date of conviction.

(4) Where the defendant appeals against his conviction, the court may, on that account

(a) postpone making either or both of the determinations mentioned in sub-section (1) above for such period as it may specify; or

(b) where it has already exercised its powers under this section to postpone, extend the specified period.

(5) A postponement or extension under sub-section (1) or (4) above may be made

(a) on application by the defendant or the prosecutor; or

(b) by the court of its own motion.

(6) Unless the court is satisfied that there are exceptional circumstances, any postponement or extension under sub-section (4) above shall not exceed the period ending three months after the date on which the appeal is determined or otherwise disposed of.

(7) Where the court exercises its power under sub-section (1) or (4) above, it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the relevant offence or relevant offences. ......"

25. Together these consolidated provisions empower the court both to make, and postpone the making, of a confiscation order following conviction of a drug trafficking offence. When the power to make an order is exercised, it forms part of the sentencing decision, and its enforcement is coercive in effect. The circumstances in which a postponement may be ordered are provided by or follow from s3 itself, which represents a concession to the requirement for a measure of sensible flexibility rather than a completely new sequence. So far as the statute is concerned, sentence may, not will, precede rather than follow confiscation proceedings. That said, provided a postponement has properly been ordered for the purposes of s3, nothing in these provisions creates any express limitation on the court's ordinary powers to control and manage its own process. In reality, few cases with the slightest complication can in fact be dealt with on the same day as conviction, and given the choice, most defendants prefer to know their sentences as soon as possible, rather than face the delay involved in resolving the confiscation issues.

26. This limited degree of flexibility within the timetable arises in two distinct circumstances. The first is when the defendant appears to be sentenced, and the court requires further information to enable it accurately to determine whether the defendant has benefited from drug trafficking, or the amount to be recovered from him. If so, postponement may be ordered for a specified period which, unless there are exceptional circumstances, may not be extended beyond 6 months after the date of conviction. The court is required to make a positive decision postponing the determination. It does not follow from the fact that an order has not been made, when it might have been, that the order must have been postponed, or be deemed to have been postponed. Mere temporising, delay, or inaction, does not amount to postponement of a determination. In short, following an application from one side or the other, or as a result of the court acting on its own initiative, for the purposes of s3, a judicial decision is needed, and unless made within the permitted period (whether for postponement, or for an extension in "exceptional" circumstances) the jurisdiction to make the order for postponement lapses.

27. The jurisdiction to postpone also arises when the defendant appeals against conviction, presumably on the ground that if the conviction were quashed an investigation into confiscation issues would probably be a waste of time. But, again, an appeal against conviction does not automatically lead to a postponed determination for the purposes of s3. As before, an application from one side or the other, or the court acting of its own motion, may result in a positive decision to postpone the determination. Common to both s3(3) and s3(6) is that once the court has exercised its powers under s3(1) or s3(4) within the deadline laid down by the statute, (R v Cole, unreported, 22nd April 1998; R v Shergill & Ors; R v Edwards [2000] 1 CAR(S) 98; R v Khan [2000] 2 CAR(S) 76) then extensions beyond that deadline may be ordered in "exceptional circumstances".

28. One issue which arises, and which perhaps has not been sufficiently addressed in the decided cases, is to identify the moment when time starts to run for the purposes of the deadlines in s3.

29. From time to time it has been said, and in both the cases before us it was said, or at least implied, that the confiscation order must be made within six months of the date of conviction. That, in effect, was what I said in R v Cole (a drug trafficking case), unreported, 22nd April 1998.

"Section 3 therefore creates a convenient code which permits the court to pass an appropriate sentence before having determined whether to make a confiscation order under s2, and simultaneously maintains the necessary control over the process which could otherwise become protracted and ultimately unfair. Although the court is plainly able to fix a date for any subsequent hearing, the power created by this section is to postpone the determination not to a date, but for a period. The provisions are clear. The court should normally deal with the confiscation order within six months of the conviction. In exceptional circumstances this period may be exceeded ...... If an application is made within the six month period, and provided the circumstances are exceptional, an order made by the judge postponing the determination further is valid."

30. As Cole was a case in which the defendant was sentenced immediately after conviction, time undoubtedly started to run from that date. Cole was followed in a number of subsequent decisions. These include, for example, R v Akpan & Abraham, unreported, 20th October 1998 (a case to which the relevant Criminal Justice Act provisions applied) where Mantell LJ observed:

"The power to postpone in the absence of exceptional circumstances does not, on its face, extend beyond the six month period, beginning with the date of conviction."

31. In R v Shergill & Ors [1999] 2 CAR(S) 341 (another case involving the Criminal Justice Act) Beldam LJ observed, at 346:

"In the absence of exceptional circumstances the court has no power to specify a period of postponement which exceeds six months beginning with the date of a verdict or plea of guilty to the offences in question. Moreover as was made clear by Judge LJ in Cole (above) if the court is to determine that there are special circumstances it must do so before the expiry of the six month period. In the present cases, the six month period expired on April 18, 1997. No step in the confiscation order proceedings had been taken by that date and thus it was too late........"

32. In the last two of these cases the confiscation orders under consideration were made under the Criminal Justice Act 1988 as amended, rather than the Drug Trafficking Act 1994. It will be remembered that the opening words of s2(1) of the 1994 Act provide....... "where a defendant appears before the Crown Court for sentence .......". These words are not echoed in the 1988 legislation, even in its amended form, and the critical language in s71(1) is ........ "when an offender is convicted ..... ". In Cole, as a result of focusing on s3(3), rather than on s2(1) which did not arise for consideration, I failed to acknowledge the immediate importance of the distinction, and its possible impact in relation to deadlines. So far as the 1994 Act is concerned the confiscation proceedings themselves start, not on conviction, but when sentence falls to be considered, a point given express emphasis in this court in R v Stuart & Bonnett [1989] 11 CAR(S) 89 when considering the provision in identical language in s1 of the Drug Trafficking Offences Act 1986.

33. No one doubts, of course, that time starts when conviction is immediately followed by sentence, or when the case is listed for sentence and the defendant appears (as in R v Shevki, not on 12th November 1997, but on 5th December) when Judge Finney was immediately alert to the six month deadline, and anticipating inevitable difficulties, acted accordingly. There are of course occasions when the defendant's appearance before the Crown Court for sentence is delayed, sometimes for longer than six months after conviction. The defendant may have been granted bail pending the preparation of reports, and absconded. The trial of his co-accused may be taking many months. In theory therefore, if time does not start to run until the appearance of the defendant before the Crown Court "for sentence", it is arguable that even if this appearance were delayed for longer than six months after conviction, on the first occasion of an appearance "for sentence", the judge could immediately decide that the confiscation proceedings should be postponed for the "exceptional" reason that the defendant has not appeared for sentence until after the expiry of the six month period. Whatever the merits of this argument, there is an unbroken line of decisions of this court which leads us to the conclusion that it is now too late for orders for postponement to be made after the lapse of six months from conviction.

34. In any event, notwithstanding the opening words of s2(1), whenever the court is considering whether to postpone the determination, the date of conviction remains starkly relevant. The court may not specify a period which "exceeds six months beginning with the date of conviction", unless satisfied that the circumstances are "exceptional". In short, s3(3), perhaps rather confusingly, but expressly, imposes its own discipline and this may serve to explain why it appears generally to have been assumed that for the purposes of postponed determinations time starts to run from the date of conviction, irrespective whether the legislation under immediate consideration is the 1994 Act or the 1988 Act, as amended. In our judgment, the opening words of s3(1) refer to the provision for confiscation orders in s2 generally rather than the specific words in s2(1), "where the defendant ...... appears to be sentenced". Accordingly, where the court anticipates that it will not be able to proceed under s2(1) until after six months from the date of conviction, (for example, because a lengthy trial of co-accused will follow so that sentence will not arise until the end of that trial), the court should decide there and then that any determination will be postponed until after the end of that trial, and such further period as may be anticipated for the completion of the investigation. There is nothing to preclude the court from anticipating that the circumstances are or will remain "exceptional" for more than six months after conviction, and to make an order accordingly, extending the period of postponement until after the conclusion of linked trials, as Hidden J did in R v Steele. In our judgment postponements in such circumstances would normally fall well within the "exceptional circumstances" provision.

The Authorities

35. We begin with R v Tuegel and Others, unreported, 19th November 1999, confiscation orders were made under the Criminal Justice Act against two defendants, Martens and Saia. Martens pleaded guilty on 13th February 1998. After a five month trial, Saia was convicted by the jury on 27th July. On 28th July, at a directions hearing convened because it was appreciated that it was nearly six months since Martens had been convicted, the judge expressly indicated that there were special circumstances justifying an extension, or postponement of determination, until the end of the first week in October. The hearing of the confiscation proceedings involving both men began on 1st October. Sentence was adjourned until 8th October, and the confiscation proceedings adjourned until 11th January 1999. On 9th October, both men were sentenced to substantial terms of imprisonment. For present purposes the details are unimportant. The hearings of the confiscation proceedings resumed on 12th January. On 15th January recommendations for deportation were made against both men, and the confiscation proceedings were adjourned, part heard, to 15th April. The hearing then resumed and was concluded on 24th April. On 26th April substantial confiscation orders were made against both of them.

36. Dealing with the appeal against the recommendations for deportation made under s6(2) of the Immigration Act 1971 on the basis that they were made out of time, Rose LJ identified a distinction between an order made outside the prescribed period "by virtue of an earlier adjournment" and one which was "the consequence of a late afterthought by prosecution or judge". He then considered and rejected the submission that confiscation orders were also made too late. It was, he said, "manifest" that everyone involved in the case, including the judge, had proceeded throughout on the basis that the circumstances were exceptional, and justified confiscation orders being made outside the six month period. He went on to add that although the judge had not expressly spelt out the particular reasons for concluding that the circumstances were exceptional, the case was so complex that they obviously were, as indeed the judge had indicated at the hearing in July 1997.

37. Although this judgment in draft transcript was before the court a few days later in R v Kelly [2000] 2 CAR(S) 129 (a drug trafficking case), it seems that these observations were not drawn to the attention of the court. If they had been, we doubt whether Laws LJ would have expressed himself as he did in the last few words of the passage, at 137, where he said:

"Nothing is plainer than that a postponement under s3(1) is constituted, and only constituted, by a judicial decision unless there is something wholly exceptional that must be taken and done in open court and reasons there given for it."

38. Although, as Rose LJ in Tuegel agreed, reasons for postponing a determination are normally given, we respectfully share his conclusion that the failure of the judge expressly to identify exceptional circumstances does not automatically vitiate his decision, provided they are indeed obvious, as they were in Tuegel, and provided also that a judicial decision to postpone was made accordingly within the six month period. This follows both from the decision in Kelly, and a consistent line of authority of which Tuegel itself provides a clear example, and in which Shergill was distinguished on the basis that no relevant steps of any kind had been taken to postpone the determination within six months of conviction.

39. On analysis therefore, the decision in Tuegel proceeded on the basis that there had been a judicial decision within six months of conviction that the circumstances were exceptional. The adjournments after October 1998 were made under the inherent jurisdiction of the court. There is nothing to suggest, for example, that the appropriate information required for the determination of the confiscation proceedings had not been provided by, say 15th January, when the confiscation proceedings were adjourned for three months. It also follows from the decision that the confiscation orders should be upheld, that the court is not required expressly to specify that "exceptional circumstances" arise when ordering each and every adjournment which will delay the conclusion of the confiscation proceedings beyond, and yet further beyond the relevant six month period.

40. We must refer again to Kelly. The defendant pleaded guilty on 8th November 1998. On 11th December he was sentenced. The hearing was conducted on the basis that the judge intended to proceed to confiscation issues after all the relevant connected trials were completed, but he made no order to this effect, and said nothing about postponing the determination.

41. On 9th May, prosecuting counsel telephoned the judge at his home and invited him to postpone the determination. It was accepted on all sides that this was one day beyond the six month period. No one addressed the issue whether the period started to run on 11th December, when sentence was passed, rather than on 8th November, when the defendant had pleaded guilty. It was assumed throughout that by 9th May the deadline had passed.

42. On 10th May there was a hearing in open court. The judge said that he had postponed the hearing last time (11th December) "whether or not" he had said so. In fact the exchange on 11th December had been brief in the extreme. After counsel for the Crown had said that there would "in the fullness of time" be an enquiry, the judge said simply, "you want that enquiry to take place after sentencing?", and counsel replied, "please".

43. The observation of Laws LJ quashing the conviction was based on the very simple conclusion that this discussion included "nothing at all.... about exceptional circumstances. No period was specified under s3(1). In our judgment, nothing capable of being called a judicial decision was arrived at under s3(1) on that day." On those findings, on well established principles, the deadline had passed, and was irretrievably lost by 10th May.

44. R v Khan [2000] 2 CAR(S) 76, decided under the Criminal Justice Act, should be regarded as a decision on similar principles. Khan was charged with a number of counts in different indictments to which, in April 1996, October 1996, and eventually 6th May 1997, he pleaded guilty. On 23rd May 1997 he was sentenced to imprisonment, and it was directed that confiscation proceedings should be dealt with on another occasion with a timetable duly laid down for the provision of statements. A series of delays then occurred, the precise circumstances of which are irrelevant, but it was not until 22nd June 1998 that the first application was successfully made for an extension of time on the ground of "exceptional circumstances".

45. Deriving support from Cole, as fortified by Shergill, for the principle that "the confiscation order decision had to be made before the six month period set out in the Act had lapsed", the confiscation orders were quashed on the basis that they were outside the statutory time limit. That was not quite what Cole had decided. What was said was that the "court should normally deal with a confiscation order within six months of the conviction. In exceptional circumstances this period may be exceeded. The judgment whether circumstances are exceptional or not must be made by the court considering whether to make a confiscation order, and the decision must be made before the six month period has elapsed". Similarly in Shergill, Beldam LJ pointed out "......... If the court is to determine that there are special circumstances it must do so before the expiry of the six month period". Khan was decided consistently with those observations. The application for an extension of time on the ground of exceptional circumstances, was made long after the relevant statutory period had lapsed. Accordingly it was too late.

46. We must turn next to R v Miranda [2000] CAR(S) 347, another case arising under the 1988 legislation, but before the coming into effect of the Proceeds of Crime Act 1995.

47. Miranda pleaded guilty to conspiracy to defraud and associated offences on 6th July 1998. He was then served with an appropriate prosecution statement and ordered to respond by 7th September. The case was adjourned. The trials of three co-defendants started on 8th July and one (Sam) was convicted on 24th July. Sentence on the appellant and Sam was adjourned until 2 October. The appellant failed to comply with the order to respond to the prosecution statement. On 1st October, the date, 2nd October, was vacated because the judge was unavailable, and the hearing was refixed for 24th November. On that date the sentencing hearing was again vacated, this time on the ground of the ill-health of the appellant's wife. The sentencing hearing was subsequently refixed for 25th February 1999, by now outside the six month period after the appellant had pleaded guilty. On 25th February the court was again unable to deal with sentence which was adjourned to 31st March. Two days before that date, and by now months later than the time allowed by the court for this purpose, the appellant served his statement in response to the prosecution. The confiscation proceedings themselves eventually began on 30th March, and on 1st April the appellant was sentenced to imprisonment and a confiscation order was made.

48. The relevant submission by the appellant in relation to the confiscation order was that as the six month time limit expired on 6th January 1999, the order was invalid. The rival contentions are conveniently set out at pp355 and 356 of the judgment, and we do not propose to repeat them. The Court of Appeal held that the confiscation proceedings had begun on 6th July, when the court must have required further information before it could make the appropriate determination. The purpose of the adjournment on 6th July was held to be "twofold", first, to adjourn sentence until the end of the trial of the co-accused, and, second, although neither the court nor the parties appreciated it, was to postpone the determination of the confiscation proceedings until the appropriate information was provided. As no application was made for an extension beyond six months, and no one suggested that exceptional circumstances were shown to justify an extension beyond the six month period, the order made on 1st April 1999 was held to be invalid. It is worth noting that no submission was advanced to the Court of Appeal that there were indeed any exceptional circumstances, and in the Crown Court no thought at all was given to this question.

49. The decision was, if we may respectfully say so, entirely in accordance with well recognised principles. The court did not have to reflect on and did not say anything about the distinction drawn in argument by counsel for the Crown (without ascribing it to Tuegel) between a postponement of a determination and a simple adjournment of sentencing, with a consequent adjournment of a confiscation proceedings. The essential point in the decision was that the determination was postponed and no judicial decision to extend the normal six month period was ever sought or made. Therefore the statutory time limit had passed, and the confiscation order was made after its expiry, without any proper extension of the time limit.

50. In commenting on this decision in [2000] CLR 395, Dr Thomas pointed out that the question which was left open was "what must be accomplished before the end of the six month period" assuming that there are no exceptional circumstances. Is it sufficient that the Crown Court has embarked on the relevant enquiry, or must the Crown Court have completed the enquiry and made the order?" Dr Thomas went on to suggest that it was "clear that the latter is the correct interpretation......".

51. Miranda was followed in R v Morgan & Morgan, briefly reported at [2000] CLR 865, a Criminal Justice Act case. We have studied the transcript of the judgment of the court.

52. The facts briefly were that on 4th March 1999 the appellants pleaded guilty. Sentence was adjourned. On 28th September, that is over six months after conviction, the judge concluded that although no exceptional circumstances had been shown to him, nevertheless the court was possessed of jurisdiction to make confiscation orders when sentencing the appellants to imprisonment. On appeal, the prosecution contended that there had never been any formal postponement under s72A, and that the postponement that had taken place was "merely coincidental" to the adjournment of sentence. Hardly surprisingly, the decision in Miranda was said to be "fatal" to that contention. The Crown itself was arguing that the power to make the confiscation order had continued, notwithstanding the absence of any decision to postpone the determination within six months of conviction. In principle however that concession made any extension, even on exceptional grounds, impossible.

53. We must now consider R v Lingham, a drug trafficking case, unreported, 23rd May 2000, which as we have already noticed, is said to be "irreconcilable" with the decision in Miranda.

54. Again, the timetable is important. The appellant was convicted after a trial on 5th June 1998 and sentenced to imprisonment on 6th July. The confiscation proceedings were fixed for 23rd November. On 20th November, treating as "exceptional" the circumstances which arose from the appellant's very late change of solicitors, the judge vacated the hearing date and ordered a hearing, not before 4th January, on a date to be fixed. 12th April was the relevant date, subsequently arranged. It is perhaps worth emphasising at the outset the significant contrast between these facts and those in Miranda. In Lingham, within six months of conviction, and indeed sentence, the court had made an express decision to extend the time for determination beyond that six month period and had identified the exceptional circumstances.

55. Returning to the narrative of subsequent events, the judge realised that his judicial commitments meant that he would not be available to conduct the confiscation proceedings on 12th April, so he vacated that date and the hearing was refixed for 7th May. On that date the judge rejected the submission that the proceedings were out of time. He said that there were exceptional reasons for vacating the fixed date on 12th April. We wonder, as the court in Lingham plainly wondered, whether he needed to address that question at all. The order made on 20th November had not lapsed, and as generally speaking, the most appropriate person to conduct confiscation proceedings is the judge who has presided over the trial involving the defendant, or any linked trial, his decision to vacate 12th April was entirely sensible. It was however argued that this was not an exceptional circumstance for the purpose of s3(1).

56. Giving the judgment of the court, Jowitt J pointed out that so far as the decision to vacate the fixture on 12th April was concerned, the 1994 Act arose for consideration only indirectly. We agree. An appropriate order extending the time limit beyond the six month period, not in any way subject to criticism, had already been made, within the six month period. Stripped to essentials, the fundamental question was whether the limited circumstances under which the postponement could be ordered under s3(1) (further information) carried with it a mandatory obligation on the court to ensure that the confiscation proceedings were concluded immediately the required information was available. This approach would mean that in the ordinary case, once all the relevant information had been collected and was under consideration by the court within the six month period, if the hearing went on rather longer than anticipated, an adjournment overnight to the day after the end of the six month period would be impermissible, or rather pointless, because time would lapse. An adjournment before the date fixed for hearing, or indeed part heard, for any of the many, sometimes compelling reasons, with which we are all familiar, would imperil the validity of the confiscation proceedings. The potential for and the advantages of deliberate mischief-making would multiply. In Lingham, focusing on the realities, it was held that the Crown Court had not been deprived of its "inherent powers" over its own proceedings and was entitled to make its own decisions about when applications should be heard, and whether and in what circumstances adjournments should be ordered.

57. In his commentary on this decision, at [2000] CLR 698 Dr Thomas while recognising "valiant attempts to introduce an element of common sense into the operation of .......... confiscation order provisions" regarded the approach as "open to question", a concern which was based on a detailed analysis of the historic context of the 1994 Act, which we endeavour to encapsulate earlier in this judgment. There is, he argues, no general power to delay dealing with confiscation issues once the offender has been sentenced, and the decision in Lingham cannot be reconciled with Kelly and Miranda, neither of which was cited in Lingham. However as already noted, Tuegel was not cited in Miranda, nor in the present context, in Kelly, and inevitably given the constraints of time, without the court travelling back through Shergill through to Cole, where in relation to the issue whether the court's ordinary or inherent jurisdiction over proceedings was inhibited, the court then observed:

"Subject to the statutory procedure in s3 the ordinary management of the court's business remains unaffected. It is not without significance that s3 uses the word "postponement", a term of art, rather than the very well understood general word "adjournment". If it had been intended to interfere with the ordinary administration of court business ..... the legislation would have been differently and far more clearly worded."

58. We are unable to conclude that anything involved in the decision in Miranda or Kelly undermines that conclusion, which was in effect reflected in the decision of the court in Tuegel as well as Lingham. For present purposes, nothing turns on the minor differences in the statutory provisions which applied to these cases. If we may return to Miranda, the appeal succeeded because time ran out without a judicial decision that it should be extended, and we regard Kelly and Morgan as having been decided on the same principle. Indeed it is implicit in Miranda that provided an application had been made within the six month period of the decision to postpone the confiscation proceedings for an extension on the basis of exceptional circumstances, and provided also that such circumstances had been shown, then the further postponement of the determination could and would properly have been made. We therefore do not read Miranda as authority for the proposition that the statutory arrangements undermine the general powers of the court to control its own proceedings, and supervise their management. Therefore, with great respect to Dr Thomas, we do not share the view that the decision in Lingham is irreconcilable with Miranda and Kelly, or that these decisions may have created any confusion about the proper application of the statutory code.

59. The result of this over-lengthy analysis of the authorities can be summarised in a few sentences. Confiscation orders should normally form part of the ordinary sentencing process. For lack of appropriate information, this will often be impractical. If the conditions in s3(1) or s3(4) are satisfied, and within six months of conviction, the court may decide that the determination should be postponed. Unless the circumstances are exceptional this should not extend beyond six months after conviction. These decisions involve the court's discretion, judicially exercised when the statutory conditions are present, taking full account of the preferred statutory sequence as well as the express direction in the statute that save in exceptional circumstances confiscation determinations should not be postponed for more than six months after conviction. So far as practicable, adjournments which would have the effect of postponing the determination beyond that period, or in exceptional cases, beyond the period envisaged when the decision to postpone was made, should be avoided. Nevertheless when the circumstances in an individual case compel an adjournment which would have this effect, then whether or not the information gathering process has been completed, it may be ordered, for example, to take account of illness on one side or the other, or the unavailablity of the judge, without depriving a subsequent order for confiscation of its validity.

R v Shevki

60. We have already recorded Shevki changed her plea to guilty on 12th November 1997. The confiscation order in her case was made on 12th June 1998. We must now examine the sequence of events between the dates when the appellant pleaded guilty and the confiscation order was made.

61. When the appellant changed her plea on 12th November the case had been proceeding as a trial. It was not practicable for Judge Finney to proceed to sentence, which was adjourned until 5th December.

62. On that day the Crown invited the court to proceed to pass sentence on both defendants, and to postpone the determination of a confiscation order. Counsel for the Crown, with whom counsel for the appellant concurred, suggested that a "further" postponement on the basis that with a major international dimension to the necessary enquiries, there were exceptional circumstances to justify the postponement. The judge ruled that circumstances were indeed "exceptional", and he made a formal order postponing the confiscation, and laid down a timetable for both sides to obtain and provide information. He then proceeded to pass sentence.

63. The case was relisted on 12th February 1998. This, and every subsequent hearing, took place before Judge Finney. It is perfectly obvious from the transcript that his recollection of the case, and the circumstances in which he came to make an order postponing the determination remained clear and was undiminished by the passage of time. By 12th February the Crown had served the appropriate s11 statements. The defence required a substantial time to produce a response, arguing for a date at the end of April. The judge was plainly alert to the "time" requirements and required counsel to justify such a prolonged delay. In the result he ordered that the case should be listed for mention on 24th April.

64. By that date the appellant had failed to reply to the prosecution's s11 statement. Counsel explained that her legal advisers were still continuing to search for the requisite information, and he was anxious to persuade the judge that his client's illness and difficulties communicating with her in prison, made the process more difficult. The judge was, rightly in our view, unsympathetic about these "personal" matters, but despite the continuing protests by counsel for the appellant, he eventually allowed himself to be persuaded that the defence statement should be served by not later than 22nd May, and that the confiscation proceedings should be fixed and heard on 5th June, with on counsel's assessment, a half day estimate.

65. The hearing duly began either on that date, or possibly on 12th June itself. We are not entirely clear which, but there was a very substantial body of evidence for consideration, and the judgment was not given until 12th June. We do not propose to repeat it, but Judge Finney comprehensively and unequivocally rejected the evidence of and called by the appellant. His reasoning can very rapidly be grasped from these short passages in his judgment:

"She is a cunning, deceptive and manipulative woman whose only mistake was to think that she was cleverer than she in fact was..... She ... gave evidence ..... I do not propose to go through that evidence in detail; it would take too long to set out every lie, every equivocation, every economy with the truth."

66. He described the evidence of her former lover as "quite simply not believable" and, although sympathetic to the position of the appellant's mother, Judge Finney again felt that her evidence "did not bear believing".

67. The result of his reflection on all the evidence was the confiscation order in the sum of £59,647.80.

68. The first ground of appeal is that the confiscation order was made outside the statutory time limit and accordingly without jurisdiction. It was unlawful and must be quashed.

69. In our judgment the narrative of the earlier events demonstrates that this ground of appeal must fail. On 5th December, on the first occasion when the appellant was before him to be sentenced, shortly after conviction, Judge Finney made a clear unequivocal and amply justified order postponing the determination. It was common ground between both sides that the production of the evidence to enable the court to make a properly informed decision would be particularly difficult and would inevitably involve a substantial period of delay. It was not suggested then, and is not suggested now, that the circumstances at that time could not properly be described as exceptional.

70. It is true that in subsequent hearings Judge Finney made no further express order postponing the determination. We do not think he needed to do so. He had made the order under s3(1) and he had also found exceptional circumstances for the purposes of s3(3). Neither the passage of time nor anything that transpired subsequently undermined or called into question the conclusions to which he had rightly come on 5th December. Thereafter, although the judge remained alert to the six month period specified in s3(3), and was anxious to proceed as quickly as possible and indeed to inculcate a greater sense of urgency into the search for information on behalf of the appellant, until that search for information was complete, or until the appellant or her legal advisers had, in his judgment, enough time to do so, the determination continued properly to be postponed. It was not necessary for the judge to make a formal ruling to this effect on each occasion that the case was before him: it is obvious from the transcript that he was doing so, and why, and that his reasons, in essence, were to try and ensure that the appellant herself should not be at any disadvantage when the confiscation proceedings were decided.

71. In our judgment the argument that the confiscation order was invalid is unsustainable.

72. A further, unconnected ground of appeal was advanced. The court was invited to admit "fresh evidence" about the rights and title to the appellant's property in Famagusta in North Cyprus.

73. The confiscation order was made in June 1998. In January 2000 the solicitors for the appellant "received a package from Cyprus". That package contained documents relating to the property. A Turkish Law Consultant was instructed. He responded on 2nd March 2000. The present application was made in July. Counsel was not able to provide or point to any or any reasonably adequate explanation for the delay, and we were not able to discover why all this material could not have been made available or known to Judge Finney before and during the hearing in early June. Accordingly, and without making any adverse findings based on the judge's view of the appellant's credibility, we decline to exercise our discretion to allow this evidence to be called.

74. Accordingly, this appeal is dismissed.

R v Steele

75. The sequence of events from 20th January 1998 until the confiscation order made on 24th August 1999 must be closely examined. Three features of the case need immediate mention. First, a confiscation order was not made by the judge who passed sentence on the appellant. Second, as the narrative will reveal, and no doubt unconsciously influenced by the fact that three life sentences for murder had already been imposed on Mr Steele on 20th January, the proceedings drifted in a somewhat unfocused fashion, so that in the end the confiscation order was not made until 20 months after sentence. Third, this particular case involved consideration of postponed determinations both under s3(1) (further information) and s3(4) (appeal against conviction), with the additional complication that the proceedings in respect of the drug importation in April and May 1996 at Woolwich Crown Court remained extant against the appellant for nearly a year after his conviction for murder.

76. On 4th March 1998, Hidden J was satisfied that until the proceedings at Woolwich Crown Court were concluded, the information required for the purposes of a confiscation order was incomplete because of the "intimate and complex involvement " between the two sets of proceedings. He also faced up to the problem that the proceedings at Woolwich were unlikely to conclude until six months had elapsed from the date of conviction. He considered and decided that there were "exceptional" circumstances which justified an order postponing the determination until one month after the completion of the trial at Woolwich. That decision was fully justified, and an unremarkable approach to the problem created by continuing drug trafficking proceedings involving the appellant.

77. In the meantime, the appellant had sought leave to appeal against the verdicts returned by the jury on 20th January, an application eventually refused by the single judge and then renewed by Mr Steele before the full court. Next, proceedings at Woolwich Crown Court came to rather an abrupt end. After the trial of a large number of co-defendants, from which the appellant had been severed, and verdicts had been entered by the jury, on 13th November 1998, on the Crown's application, and in the appellant's absence, it was ordered that the case against him should lie on the file. Mr Steele is adamant that this was an improper misuse of the process of the court. In reality he believes that he has been deprived of an opportunity to attack Nicholl's creditworthiness, and thus to undermine his convictions for murder as well as drug trafficking. Although this is a constant theme in the applications before the court, beyond recording that we do not agree with his concerns about what appears to have been an entirely conventional decision not to waste time and public money by pursuing these particular allegations to a verdict, the significant feature for present purposes is that on the basis of Hidden J's original order, subject to the s3(4) issue, or any further order, the determination of the confiscation order was to be completed within one month of 16 November.

78. On 9 December the case was listed before HH Judge Gordon. As the result of the renewed application for leave to appeal was awaited, he ordered that the case should be relisted for mention a few days after the anticipated date of the result. He further ordered that the defence should serve its s11 statement by 22nd January. He was not invited to, and he did not formally extend the postponement of the determination under s3(1) (further information). The single focus for decision was s3(4) ground (appeal against conviction). The full court disposed of the appeal by dismissing the renewed application for leave on 25th January 1999.

79. On 29th January the case was listed before HH Judge Grigson (as he then was). The Crown invited him to make an order requiring the appellant to respond to the prosecution's statement, and the judge agreed, and allowed 28 days for the purpose. He also recommended that the issue should be listed before Hidden J. We need not recite the various applications advanced on behalf of Mr Steele, but it has not been suggested, and there is nothing in the papers to suggest that Judge Grigson was asked to make or that he did make any finding of exceptional circumstances.

80. The case was relisted before him on 24th February, for consideration of an application by the appellant for a witness summons against the BBC. The judge noted that no date had been fixed for the confiscation proceedings, but beyond that no relevant order, or decision, was made.

81. On 12th April the case was again listed for mention. As neither side has sought the listing, neither counsel knew the reason for it, and they and Judge Grigson assumed that first, the purpose was to fix a date for hearing of the confiscation proceedings, and second, that it was not possible for the case to be listed before Hidden J. We have now gleaned from later proceedings, that Hidden J appears to have released the confiscation proceedings for hearing before any of the Senior Circuit Judges sitting at the Central Criminal Court. Counsel for the appellant warned of an abuse of process argument, but the judge ordered simply that the case should be fixed, after discussion with the listing officer, within 14 days.

82. No further proceedings took place before 25th April 1999, that is three months after the renewed application for leave to appeal against conviction had been dismissed. No order or decision had been made, indeed nothing had been said during the course of any of the intervening hearings to indicate that the court considered that exceptional circumstances had been established for extending the time beyond the three month period after conviction, or that an extension had in fact been ordered. In his submission Mr Steele suggested that what he described as the second "time envelope" had now been closed, and therefore, despite the subsequent proceedings, to which we shall briefly refer, there was no jurisdiction to make a confiscation order.

83. On 2nd June Judge Grigson was due to consider the abuse of process argument. Unfortunately Mr Steele was not produced at court, so the hearing was adjourned. It was relisted before Judge Grigson on 25th June. Mr Steele was acting in person. The confiscation proceedings were ordered to begin on 16th August. They were so listed and concluded on 24th August, when Judge Gordon made the confiscation order in the sum of £2122, now under consideration.

84. If it were not for the mandatory effect of s2(1) one might reasonably wonder whether quite so much effort and expense can possibly have been justified in order to establish the relatively paltry liability of a defendant already serving three sentences of life imprisonment. In the result, the cost to the community has been wholly disproportionate. More important however, for present purposes, is that in our judgment Mr Steele is right. The second time envelope, as well as the first, had closed without any decision of the court to extend time which was sufficient to provide an acceptable foundation for the order made against him. The exceptional circumstances identified by Hidden J had ceased. The period of extension ordered by him had passed. We do not need to decide whether exceptional circumstances might, on the particular facts of this case, have been established. In reality, no decision further extending the period of postponement ordered by him was ever made. This appeal therefore must be allowed.

85. Mr Steele suggested that there were further grounds to justify setting aside the order made by Judge Gordon. As we indicated at the hearing, if his appeal were successful on the jurisdiction ground, it would not be necessary for us to consider the remaining grounds, and we have not done so.