England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
(HHJ GORDON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 October 2002

Lord Justice Rix:

Synopsis

1. On Friday, 18 May 2001 the appellant, John Palmer, was convicted following a lengthy retrial on an indictment charging two counts of conspiracy to defraud. The first count charged him together with two co-defendants of conspiring to defraud between 1 September 1989 and 31 July 1996. The second count charged him and the same co-defendants of a further conspiracy between 1 January 1996 and 15 July 1997.
2. The essence of the prosecution case was that over a lengthy period of time the appellant had operated a fraudulent timeshare scheme in various holiday resorts in Tenerife. In particular two fraudulent sales techniques were imposed upon his victims. One, the “buy/sell” technique, was to induce victims who already owned a timeshare property to buy a further Palmer timeshare on the promise that their existing property could be sold within a relatively short period of time at an inflated price. The other, the “buy/rent” technique, promised new purchasers a rental income at inflated and unachievable rates.
3. On the following Monday, 21 May, the prosecution served notice on the trial judge, HH Judge Gordon, to the effect that the prosecution considered that it would be appropriate for the court to proceed to consider making a confiscation order against the appellant. The judge thereupon postponed any determination of the making of a confiscation order until 2 July 2001 “in the first instance”.
4. Two days later, on 23 May 2001, the appellant was sentenced by the judge to a total of 8 years imprisonment, made up of seven years on count one and a further year consecutive on count two. He was also ordered to pay prosecution costs in the sum of £266,367. On that occasion the judge further considered the time-table for the conduct of the confiscation order proceedings and indicated that on 2 July he would deal with the issue whether the victims’ payments, which had been made to the appellants’ companies rather than directly to himself, should be treated as capable of being a benefit received by him for the purpose of the statutory provisions relating to confiscation orders. This issue was known as the “lifting of the company veil” issue. The judge contemplated that if thereafter there was to be a full hearing on confiscation, he would fix a date for it on 2 July.
5. At the hearing on 2 July 2001, at the appellant’s request, the judge further postponed the hearing of the lifting of the veil issue until 9 August. On 9 and 10 August the judge heard that issue and determined it in favour of the Crown. The judge also fixed the dates of 11 and 12 October for the next stage of the proceedings, when the court would determine the question of the amount to be recovered from the appellant if an order was finally to be made against him. That timetable was still within the period of six months from the date of conviction which in the absence of exceptional circumstances statute sets as the limit of any postponement for these purposes.
6. On 5 September 2001, however, there was another hearing for directions when, again at the request of the appellant, the judge was asked further to postpone the proceedings. The judge ruled that there were exceptional circumstances which permitted him to do that and gave new directions culminating in a final hearing in the week commencing 15 April 2002.
7. Up to this point the appellant had represented himself. However, in preparation for the hearing of 15 April 2002, he instructed a team of legal representatives. In the run-up to the hearing date his counsel submitted a defence statement raising certain preliminary points. A supplemental skeleton argument dated 5 April raised a new point to the effect that the notice served by the prosecution on 21 May 2001, which had initiated the confiscation proceedings as a whole, was defective.
8. On 15 April 2002 the judge ruled that the new point was a valid one and that the prosecution’s notice (the “first notice”) had indeed been defective. The prosecution thereupon served a further notice (the “second notice”) and invited the judge to proceed with the final hearing on confiscation as planned. There was further argument as to whether it was too late for him to do so: on the basis that everything that had previously happened in the confiscation proceedings was without jurisdiction and it was now, following sentence, impossible to start again. That submission, however, was rejected by the judge.
9. In the circumstances, the judge proceeded to hear the final stage of the confiscation proceedings. On 23 April 2002, at the end of the hearing, he made a confiscation order in the total sum of £33,243,812.46, made up of £32,738,893.76 on count one and £504,918.70 on count two. He also awarded a compensation order of £2,039,899.14. He made a new order for prosecution costs, in replacement of his order of 23 May 2001, in the sum of £342,429.
10. On the same day, however, he certified that there was a case fit for appeal against his confiscation order on the grounds (1) that he had been mistaken to rule that the prosecution was entitled to serve its second notice after sentence and that he had no power to act upon the second notice; and (2) that he had no power to order a postponement of the determination of the confiscation proceedings before service of a valid notice. The two grounds are different sides of the same coin.
11. On this appeal, the Crown has in response sought to support the judge’s confiscation order on the primary ground that the first notice was valid after all.
12. On the hearing of the appeal, the appellant sought leave to argue further grounds of appeal, numbered 3 to 7. Ground 6 was also concerned with the procedural aspects of the confiscation proceedings, and raised the question whether, in initially postponing their determination on 21 and/or 23 May 2001, the judge had specified the period of postponement, as it became common ground he was required to do for the purposes of section 72A(1) of the Criminal Justice Act 1988 (“for such period as [the Court] may specify”). The appellant wished to argue that the judge had failed to specify a period of postponement and that for this reason too he had proceeded, once he had sentenced on 23 May, without jurisdiction.
13. Ground 7 was concerned with the judge’s second order for prosecution costs. The appellant wished to argue that if the confiscation proceedings were a nullity because without jurisdiction, then the appellant is entitled to the reinstatement of the first order for costs (for £266,367) in replacement of the judge’s second order (for £342,249). On the same hypothesis, that became common ground.
14. We gave leave to the appellant to advance grounds 6 and 7 as well as his original grounds 1 and 2.
15. This appeal therefore is not against sentence, but against the judge’s confiscation order. It is not concerned with the merits of that order but with the question whether he had jurisdiction to make it.
16. We did not require argument on new grounds 3, 4 and 5, which are concerned with issues arising on the merits of the confiscation proceedings.
17. On 31 July 2002 this Court quashed the confiscation order and the second order for prosecution costs, and reinstated the judge’s first order for prosecution costs. We reserved our reasons, which are now given in this judgment.

The statutory context

18. Before describing the relevant facts in further detail or seeking to resolve the issues, it is necessary to put this appeal in its statutory context.
19. The governing statute is the Criminal Justice Act 1988, and in particular sections 71 and 72 (in their original form) and section 72A (which was introduced by the Criminal Justice Act 1993 in respect of prosecutions instituted on or after 3 February 1995). In 1995, however, sections 71 and 72 were amended by the Proceeds of Crime Act 1995. The amendments came into force on 1 November 1995, but the effect of section 16(5) of the 1995 Act is to apply those amendments in proceedings in which a person is convicted of offences committed only after their coming into force. Since count one of the indictment on which the appellant was convicted charged a conspiracy between 1 September 1989 and 31 July 1996, it follows that the unamended provisions of sections 71 and 72 (the “1988 provisions”) apply, and not the amended form of those sections (the “1995 provisions”). This remains the position even though the 1995 provisions would have applied to count two of the indictment, which charged a conspiracy between 1 January 1996 and 15 July 1997, had it stood alone. See R v. Brown and Others (also called R v. Martin) (2002) 2 Cr App R (S) 34.
20. The relevant parts of the 1988 provisions, that is to say of the original sections 71 and 72, are as follows:

“71. (1) The Crown Court and a magistrates’ court shall each have power in addition to dealing with an offender in any other way, to make an order under this section requiring him to pay such sum as the court thinks fit.

(2) The Crown Court may make such an order against an offender where –

(a) he is found guilty of any offence to which this Part of this Act applies; and

(b) it is satisfied –

(i) that he has benefited from that offence or from that offence taken together with some other offence of which he is convicted in the same proceedings, or which the court takes into consideration in determining his sentence, and which is not a drug trafficking offence; and

(ii) that his benefit is at least the minimum amount…

(4) For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained…

(6) The sum which an order made by a court under this section requires an offender to pay must be at least the minimum amount, but must not exceed –

(a) the benefit in respect of which it is made; or

(b) the amount appearing to the court to be the amount that might be realised at the time the order is made,

whichever is the less.

(7) For the purposes of this Act the minimum amount is £10,000…

“72. (1) A court shall not make a confiscation order unless the prosecutor has given written notice to the court that it appears to him that, were the court to consider that it ought to make such an order, it would be able to make an order requiring the offender to pay at least the minimum amount.

(2) If the prosecutor gives the court such a notice, the court shall determine whether it ought to make a confiscation order…

(4) If the court determines that it ought to make such an order, the court shall before sentencing or otherwise dealing with the offender in respect of the offence or, as the case may be, any of the offences concerned, determine the amount to be recovered in his case by virtue of this section and make a confiscation order for that amount specifying the offence or offences.

(5) Where a court makes a confiscation order against a defendant in any proceedings, it shall be its duty, in respect of any offence of which he is convicted in those proceedings, to take account of the order before –

(a) imposing any fine on him;

(b) making any order involving any payment by him, other than an order under section 35 of the Powers of Criminal Courts Act 1973 (compensation orders)…”

21. It is relevant to contrast the 1988 provisions both with the earlier enactment dealing with confiscation orders in the drug trafficking context, to be found in sections 1ff of the Drug Trafficking (Offences) Act 1986, and with the 1995 provisions. Under the 1986 Act, where a person was convicted of a relevant offence, the court was obliged to proceed with a view to confiscation. The initiation of confiscation proceedings under the 1986 Act did not require the prosecution to take any steps, and the sentencing judge had no discretion: see R v. Stuart and Bonnett (1989) 11 Cr App R (S) 89. It often followed therefore that confiscation proceedings had to be undertaken even though there was no prospect of making a confiscation order in any or any significant amount.
22. The scheme introduced by the 1988 Act in respect of offences other than drug trafficking offences, as encapsulated in the 1988 provisions, was therefore designed to forestall the experience under the earlier statute. Section 71 gave the court a general discretion (“may make”), not a duty, to make a confiscation order, provided at any rate that a number of conditions were satisfied (section 71(2)). Amongst those conditions was one that the court had to be satisfied that the convicted offender’s benefit was “at least the minimum amount” (section 71(2)(b)(ii)), that is to say at least £10,000 (section 71(7)). Moreover, a further condition for the making of an order was the giving by the prosecutor to the court of a written notice to the effect that it appears to him that if the court were to consider that it ought to make an order, it would be able to make an order requiring the offender to pay at least the minimum amount of £10,000 (section 72(1)). If such a notice is given, then the court has a duty (not to make an order, for that still remains in its discretion, and in any event it can not make an order for less than the minimum amount, but at least) to determine whether it ought to make such an order (section 72(1)).
23. One of the issues which arises on this appeal is whether the prosecution’s first notice, that given on 21 May 2001, was in the terms required by section 72(1). The appellant submits that it was not, inter alia because it said nothing about the court’s ability to make an order for not less than the minimum amount.
24. Another of the issues is whether such a notice is indeed a condition precedent to the court’s jurisdiction even to enter upon the consideration of making an order. The Crown submits that the court’s general jurisdiction is provided for in section 71 rather than section 72, and that section 72(1) makes the giving of the prosecutor’s notice a condition of the making of an order, not of its consideration (“shall not make…unless”). Therefore, says the Crown, the confiscation proceedings remained competent until the second notice of 15 April 2002 provided the formal condition precedent for the making of the order itself, as the judge ruled. The appellant submits that the judge was wrong, and that without a valid notice to initiate the process, the court lacked all jurisdiction to proceed.
25. This second issue is tied up with the question of the postponement of confiscation proceedings beyond the time of sentence. Section 72(4) requires the court to determine the amount to be recovered and to make the confiscation order “before sentencing or otherwise dealing with the offender”. Section 72A was therefore introduced into the 1988 Act a few years later, to permit the court to proceed directly to sentence, while postponing the determination of the confiscation proceedings. Without that ability to postpone the working out of the confiscation proceedings, it had become necessary to postpone sentence so as not to fall foul of the requirement that the confiscation order had to be made before sentence.
26. Section 72A provides as follows:

“72A. (1) Where a court is acting under section 71 above but considers that it requires further information before –

(a) determining whether the defendant has benefited as mentioned in section 71(2)(b)(i) above;

(b) determining whether his benefit is at least the minimum amount; or

(c) determining the amount to be recovered in his case by virtue of section 72 above,

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

(2) More than one postponement may be made under subsection (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 subsection 1 above which –

(a) by itself; or

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

exceed six months beginning with the date of conviction…

(7) Where the court exercises its power under subsection (1) or (4) above, it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the offence or any of the offences concerned.

(8) Where the court has so proceeded, section 72 above shall have effect as if -

(a) in subsection (4), the words from “before sentencing” to “offences concerned” were omitted…

(9) In sentencing, or otherwise dealing with the defendant in respect of the offence, or any of the offences, concerned at any time during the specified period, the court shall not –

(a) impose any fine on him; or

(b) make any such order as is mentioned in section 72(5)(b) or (c) above.”

27. A third issue thus arises on this appeal in connection with section 72A, as to whether the power to postpone itself exists in the absence of a valid section 72(1) notice. The appellant submits that it does not, that the power only arises when once a valid notice has initiated the whole process. The Crown, however, submits that the power to postpone exists provided a court “is acting under section 71” (see section 72A(1)), that there is no reference there to section 72(1), and that (consistently with the Crown’s position under issue two) the court’s jurisdiction under section 71 exists independently of a section 72(1) notice. Therefore, the invalidity of the first notice would not prevent a valid postponement of the confiscation proceedings beyond sentence.
28. A fourth issue arises in relation to the words at the end of section 72A(1) – “for such period as it may specify”. The appellant submits (i) that the period specified by the court must be an overall period down to the final determination of the confiscation proceedings, and (ii) that the period specified by the court on 21 and/or 23 May 2001 was not such a period, but took the proceedings only to an interim stage, that concerned with the lifting of the veil issue. Therefore on this ground too the proceedings were without jurisdiction. The Crown submits, on the other hand, that section 72A(1) does not speak in terms of an overall or final period of postponement, but of a postponement for the making of any of the three determinations individually identified in subparagraphs (a), (b) or (c) of that section.
29. The first three issues emerge out of the appellant’s grounds 1 and 2 and the Crown’s response that the first notice was valid after all; whereas the fourth issue emerges from the appellant’s ground 6.
30. For these purposes it is also necessary to contrast the 1988 provisions with the subsequent 1995 provisions of the 1988 Act. The amended section 71 provides as follows:

“71. (1) Where an offender is convicted, in any proceedings before the Crown Court or a magistrates’ court, of an offence of a relevant description, it shall be the duty of the court –

(a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or

(b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed,

to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.

(1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct.

(1B) Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then –

(a) determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and

(b) make an order under this section ordering the offender to pay that amount…

(4) Subject to subsection (1C) above, the sum which an order made by a court under this section requires an offender to pay shall be equal to

(a) the benefit in respect of which it is made; or

(b) the amount appearing to the court to be the amount that might be realised at the time the order is made,

whichever is the less.”

31. The amended section 72 of the 1995 provisions omitted the first four subsections of the original section 72 of the 1988 provisions (see para 20 above).
32. Thus it will be apparent that under the 1995 provisions, which closely follow the equivalent provisions of the Drug Trafficking Act 1994, (a) the court has not only a power but also a duty to proceed (in the terms laid down by section 71) if either the prosecutor gives written notice to the court that he considers it appropriate for the court to do so or the court of its own initiative considers it appropriate to do so; (b) any requirement of a written notice from the prosecutor that it appears to him that the court would be able to make an order in at least the minimum amount is dispensed with, indeed all reference to the need for a minimum amount is abrogated; (c) the process, once triggered under section 71(1) (a) or (b), is to follow the path designated by subsections (1A) and (1B) (“shall first determine”; “shall then…”); (d) if the court determines that the offender has benefited, it is required to determine the amount to be recovered and make an order in that amount; and (e) reference to the need for the process, if embarked upon, to be completed before sentencing is brought up out of the repealed original section 72(4) into the amended 71(1). Consequential amendments were therefore made to section 72A.

The issues

33. In dealing with the statutory provisions above we have identified the four essential issues which have been argued on this appeal. We will restate them for convenience, noting that it is logical to begin with the issue raised by the Crown’s response that the judge was wrong to rule the first notice to be invalid. Thus

(1) Was the first notice valid under section 72(1) of the 1988 provisions?

(2) If not, did the court nevertheless still have jurisdiction to proceed with the confiscation proceedings under the 1988 provisions until such time as the second notice was given?

(3) In this connection, did the court have power to postpone those proceedings beyond sentence?

(4) If it did, did the court fulfil the obligation imposed by the words “for such period as it may specify” to be found in section 72A(1)?

34. Before turning to explain our reasons for resolving those issues, it is necessary to set out some further factual material.

The notices

35. The first notice was in the following form:

REGINA - v - JOHN PALMER

“NOTICE TO THE COURT PURSUANT TO

SECTION 71(1)(a)

CRIMINAL JUSTICE ACT

NOTICE IS HEREBY GIVEN for the purposes of section 71(1)(a) of the above Act by the Crown Prosecutor named below, who has the conduct of the proceedings in this matter, that the prosecutor considers that it would be appropriate for the court to proceed under this section.

Dated this 26^th day of April 2001”

36. The notice was signed on behalf of the CPS by one of its Principal Crown Prosecutors.
37. It will be immediately obvious that the first notice was drafted with the 1995 provisions in mind. Thus it refers to the amended section 71(1)(a) rather than to the original section 72(1), and it mirrors the language of the amended section 71(1)(a) and says nothing, in terms of the original section 72(1), about the minimum amount.
38. We were informed by Mr Farrer QC, who appeared for the Crown, that the first notice, whose date indicates that it was drafted almost a month before it was given to the court on 21 May 2001, was in a standard form developed by the CPS. No doubt it was perfectly suitable to a case where the 1995 provisions applied. It appears to have been overlooked, however, that under section 16(5) of the Proceeds of Crime Act 1995 such a notice was inappropriate for the proceedings in question, as is now common ground.
39. The second notice was as follows:

NOTICE TO THE COURT

Under Section 72 of the Criminal Justice Act 1988

R - v - JOHN PALMER

NOTICE IS HEREBY GIVEN under the above-named Act, by the Crown Prosecutor below who has conduct of the proceedings in this matter, that it appears to the Prosecutor that, were this Court to consider that it ought to make a confiscation order under section 71 of the Criminal Justice Act 1988, it would be able to make an order requiring JOHN PALMER to pay at least the minimum amount as defined in subsection (7).

Date: 15 April 2002”

40. The second notice was signed by the same prosecutor as the first. The reference to sections 71 and 72 of the 1988 Act were clearly intended to be to the unamended 1988 provisions. The second notice, unlike the first, contained express language mirroring the language of section 72(1) of the 1988 provisions.

Counsel’s Note

41. The appellant was convicted on 18 May 2002. Over the weekend, as we were informed by Mr Farrer, Mr David Matthew, junior prosecuting counsel, drew up a note, headed “A Note on Confiscation, etc” (the “Note”). This was given to the judge on 21 May at the same time as the first notice, but was not read by the judge during the hearing on that day (see page 2 of the transcript for 21 May 2002: “So far as the documents I have been provided with, one which I will read later obviously to do with confiscation and compensation…”). Mr Farrer relied on the Note as part of the first notice, or even, if necessary, as a notice in itself separate from the first notice. He did so in order to make good, if necessary, any inadequacy in the first notice taken by itself.
42. It is apparent from the Note that Mr Matthew’s view at that time was that counts one and two, because of the different dates with which they were concerned, fell under the different regimes of the 1988 and the 1995 provisions respectively. (It is, as we have said, now common ground that that is not so, and that the presence of count one on the indictment meant that the whole of the proceedings were governed by the single regime of the 1988 provisions.) Thus the Note dealt with counts one and two separately. As for count one, the Note stated at para 2.2.c that for the court to make a confiscation order, the prosecution must (the Note's emphasis) serve a notice under section 72(1) for a claim of not less than £10,000. As for count two, the Note referred to the 1995 provisions. Under a separate heading, “The “corporate veil””, Mr Matthew submitted that the court was entitled to pierce the veil of Mr Palmer’s companies and to regard their gains and assets as his benefits and assets. Under the heading “The amount that might be realised”, Mr Matthew wrote (at para 5.1):

“John Palmer has on two occasions assured the Court that he is an extremely wealthy man. He has said in evidence that he owned the companies used for the frauds he has been convicted of. In evidence at the first trial, he said that he owned the many Tenerife, Spanish and Madeiran based companies set out in his accountants evidence.”

43. In the final paragraph of the Note, Mr Matthew proposed “A possible timetable for these proceedings” as follows:

“21 May 2001 Service of s 71 Notice

Postponement of Compensation and Confiscation;

Direction under s 73A; provision of information by Defendant

Sentence

11 June 2001 Service of s 73 CJA statement by Prosecution

2 July 2001 Service by J Palmer indication agreement or acceptance of Statement

Provision of information by John Palmer under s 73A

14 July 2001 Hearing”

44. In that proposal Mr Matthew appears to have been suggesting that a final hearing of the confiscation proceedings should take place on 14 July 2001. It may be noted that, despite the separate treatment given to counts one and two earlier in the Note, in that final proposal Mr Matthew appears to have contemplated a single notice under “s 71”, which, unless it is simply a typographical error, must be a reference to the 1995 provisions.
45. On this appeal Mr Farrer relied in particular on the passages from paras 2.2.c and 5.1 of the Note (see above) to submit that anything lacking in the first notice could be found in the Note and that the first notice and the Note together or, if need be, the Note alone, amounted to a good notice for the purpose of section 72(1) of the 1988 provisions.

The discussion in court on 21 May 2001

46. We were shown the transcript of the discussion in court on 21 May 2001 regarding the giving of a notice and the question of postponement, in case such discussion was able to throw any light on the issues for decision on this appeal. Mr Matthew was representing the Crown, in the absence of Mr Farrer. Mr Palmer was representing himself. Mr Matthew asked the judge to deal with the question of postponement then and there. The following exchange then ensued:

“Judge Gordon: Will you take me through it bearing in mind that Mr Palmer is representing himself so that he understands precisely what it is you are asking for and what is required at this stage?

Mr Matthew: The first thing that is required is the service of a notice from the prosecution. That has been served on both Mr Palmer and the Court today.

Judge Gordon: That is a notice under?

Mr Matthew: Section 71 of the 1988 Criminal Justice Act.

Judge Gordon: Yes.

Mr Matthew: That is a pre-condition to your Lordship considering the question of whether or not there will be a confiscation order between them.

Judge Gordon: That is a notice 71(1)(a) in this instance, ie at the instigation of the prosecution.

Mr Matthew: Yes.

Judge Gordon: Once that notice has been served and –

Mr Matthew: The court then has power to adjourn the hearing of any confiscation hearing until after sentence.

Judge Gordon: That is once I am acting pursuant to section 72 [sic, sed quaere section 71 or section 72A] I think it is, is it not?

Mr Matthew: Yes, it is, my Lord.

Judge Gordon: So I first of all have the notice having been served at your invitation to start the process of determining whether or not the requirements have been shown to enable a confiscation order to be made.

Mr Matthew: Yes.

Judge Gordon: Once I have started that process it is then these days open to me to delay the proceedings in relation to confiscation only if I need further information.

Mr Matthew: Yes.

Judge Gordon: And once I have made that determination it is then open to me to proceed to sentence.

Mr Matthew: Yes, it is. The power is under section 72A of the Criminal Justice Act 1988.”

47. In that passage, although the reference at one point by the judge to section 72 is puzzling, it seems to us on balance that counsel and judge were there contemplating a notice under section 71(1)(a) of the 1995 provisions. That is the subsection to which the judge specifically refers, possibly because he had the text of it open before him, or possibly because he was reading from the text of the first notice, or both. At any rate the reference to section 71(1)(a) is consistent with the text of the first notice. Mr Matthew describes that notice as a “pre-condition” to the judge considering the question of whether or not there will be a confiscation order, which is perhaps slightly more consistent with the language of section 72 of the 1988 provisions than with section 71 of the 1995 provisions: however, even under the latter, in the absence of the judge himself considering that it would be appropriate to proceed under section 71, a notice from the prosecutor is indeed a pre-condition of the judge proceeding further. If we are wrong in that interpretation, the only other conclusion is that the parties to the discussion were at cross-purposes, or simply muddled. If so, the passage throws no further light on what was happening and cannot assist us. Certainly there is no express reference in that discussion to the terms of section 72(1) and in particular to the giving of notice to the court that it appears to the prosecutor that the court would be able to make an order for not less than the minimum amount of £10,000.
48. Mr Matthews and the judge went on to discuss further the question of postponement. The judge asked: “Do I need to set out at this stage the timetable?” There then ensued a passage in which Mr Matthew, after a merely passing reference to the timetable proposed at the end of his Note, immediately suggested an alternative way forward in the form of a “preliminary hearing” on the lifting of the veil issue. He explained that if the judge were to decide not to lift the veil, then it would be difficult to see how monies paid to the appellant’s companies could possibly be for his benefit. If on the other hand the judge decided to lift the veil, then the scale of the matter would become apparent. Thus there was then talk of a “separate hearing” and the date of 2 July was chosen because a co-defendant was due to be sentenced on that day. The judge said:

“…well what I could do is to postpone determination of compensation and confiscation matters until 2^nd July when no doubt application could be made for further postponement once the timetable has been put in place, depending upon my ruling on that matter.”

49. The judge directed the appellant to serve on the prosecution and the court by 22 June a note of any arguments he wished to run as to why the companies’ assets should be altogether ignored on questions of confiscation or compensation. The judge then concluded by saying:

“So then I formally acting under section 71 by virtue of section 72 postpone the questions of compensation and confiscation until 2^nd July and in the first instance.”

50. The reference to section 72 is again puzzling. The language “acting under section 71” comes directly from section 72A(1). It would have been possible, if a notice referring to section 72(1) had been given, that the reference to section 72 could be taken as a reference to section 72(1). In the circumstances, however, we would regard “72” as a mistake for or mishearing of “72A”: it is “by virtue of” section 72A that the court has power to postpone.

The hearing of 23 May 2001

51. On 23 May the appellant was sentenced. Before sentencing there was a further discussion regarding directions for the confiscation proceedings. Mr Matthew was again representing the Crown and the appellant was again representing himself. The judge gave amended directions for the service of statements by the prosecution on the appellant and vice versa and then concluded:

“I will review the position on 2^nd July. I will determine on that date any issue, if there is one, as to whether the corporate veil should be lifted, whether the companies’ assets should be treated as yours, and assuming that there is to be a full hearing on compensation and confiscation I will fix a date for it then.”

The judge’s ruling of 15 April 2002 as to the validity of the first notice

52. On 15 April 2002 the judge heard argument as to the validity of the first notice and ruled that it was invalid as having been given under the wrong set of provisions. As for Mr Farrer’s submission on that occasion that the first notice was to be read together with the Note, he said –

“In my view, that document, helpful though it has been, cannot be regarded as part of the notice. It comes at quite a different time. I have to look at the notice itself. On its face it purports to be a complete document carrying out the function that it specifies. In my judgment, it was or is what it says it is: a notice under section 71(1)(a). It cannot be made good by a note for the information of the Court which does not itself purport to be either a notice or an addendum to a notice. It is a guide for the assistance of the court and no more.

“In those circumstances, in my view, the notice is not a valid one.”

The judge’s ruling of 16 April 2002

53. On 16 April 2002 the judge ruled that even in the absence of a valid first notice, he always had jurisdiction to embark on the confiscation procedure and to postpone those proceedings beyond sentence. He concluded his ruling in these terms:

“I agree with Dr Thomas’s submissions as to the general scheme of the Act. I have no doubt that the intention was in the vast majority of cases, and for the reasons he gives, that the confiscation procedure would be started by the service of a notice followed by decision as to whether to proceed and, if so, whether there should be a postponement for information to determine the amount.

“The question for me, however, is not what the normal procedure may be but whether what has happened here prevents any determination of questions of confiscation. In my view, it does not for these reasons: firstly, the Court has the power to make an order under section 71; secondly, the Court can, as a matter of law, embark upon confiscation procedures without a notice – if Parliament had wished to prohibit this happening, it could easily have done so; thirdly, once the Court is acting under section 71, it has the power to postpone by virtue of section 72A; fourthly, there is now a valid notice under the correct legislation [the second notice]; fifthly, it is, therefore, now open to me to determine whether to make a confiscation order. There is no timescale provided in the Act requiring this to be done at any particular stage and it is noticeable that what is required by section 72(2) is not a determination as to whether to proceed with a confiscation hearing but a determination as to whether to make a confiscation order.

“In conclusion, what has occurred, in my judgment, complies with the Act and the next stage of the procedure would be for me to determine whether to make an order and, if so, in what sum.”

The first issue: Was the first notice valid under section 72(1) of the 1988 provisions?

54. We are now in a position to discuss and resolve the issues stated above, beginning with the first issue.
55. Mr Farrer submits that the first notice was always valid, whether it was to be read together or interpreted with the aid of the Note, or was after all to be found entirely in the Note. He made it clear that this was not only his logically first, but also his primary submission. He pointed out that section 72(1), while requiring something in writing, did not specify a particular document in the form of “a written notice”, but only “written notice”; that such notice did not have to be given to the offender but only to the court; and that the wording of that notice was not defined provided it was “to the effect” indicated in the subsection. As for the Note, he emphasised the two passages in it which referred first, to the need for a notice under section 72(1) for a claim of not less than £10,000 and secondly, to the appellant’s own acknowledgement that he was an extremely wealthy man. He submitted that in the circumstances the notice’s own description of itself as a notice under section 71(1)(a) was merely an erroneous description which did not undermine its proper effect. The purpose of the statute was merely to prevent the court wasting its time on an unproductive exercise. Since it was common ground that the appellant was extremely wealthy, it would be absurd to suggest that a proper notice had not been given. The essential question, he said, was whether the court had been apprised in writing of the prosecutor’s belief that the appellant could be required to pay, ie had benefited and could realise, the minimum amount of £10,000. In effect, he submitted that what almost went without saying should be found to have been said.
56. On behalf of the appellant, on the other hand, Mr Kelson QC and Dr David Thomas, submitted that the judge had been right for the reasons he had given in his ruling of 15 April 2002. The notice itself did not address the subject-matter of a section 72(1) notice and on its face was not such a notice. The Note could not be prayed in aid in support of the notice, nor was it separately a notice on its own. It was the notice, not the Note, which described itself as the notice, viz a “Notice to the Court”. When on 21 May 2001 the question of a notice was addressed, it was to that document that counsel referred, whereas his Note had not even been read by the court as of that time. When, therefore, the judge postponed the confiscation proceedings on 21 May, he did so by reference to the formal notice, not by reference to the unread Note. The Note was more in the nature of a section 73 prosecutor’s statement than a section 72(1) notice. In any event the Note itself was inaccurate and confused, for not only did it wrongly assume that count two could be dealt with by a section 71 notice under the 1995 provisions, but in its final paragraph it referred to “Service of s 71 Notice” as being the platform for the ensuing confiscation proceedings. As a matter of principle, the statute was a penal statute and its provisions should be strictly construed against the Crown.
57. We have anxiously considered these submissions and those relating to the other issues, especially as we see strength in the Crown’s case that in substance everyone knew where they were going and also that, subject only to the arguments embraced under the “lifting of the veil issue”, it was clear to all that the appellant was a wealthy man who had profited enormously from his fraud. We bear in mind, moreover, that Mr Farrer demonstrated that it was primarily in his submissions on this issue, rather than on the second and third issues, that he rested his response to this appeal. Nevertheless, we have concluded, albeit with reluctance, that the judge was right to find that the first notice was invalid, and that the Note could not make up for its deficiencies.
58. We are uncertain that we can put the matter better than the judge did himself, but would nevertheless seek to reason it as follows. It is plain from the terms of the notice itself that this was the document in writing, the “Notice to the Court”, upon which the prosecutor relied for the purpose of initiating the confiscation proceedings. The statute required the notice to be given by “the prosecutor” and it was the notice which was signed by the prosecutor. The Note, however, was not described as a notice, but as a “Note”. That distinction was maintained in the body of the Note, which made it plain that, so far as count one was concerned, what was required was a “notice under s 72(1)”, whereas in the case of count two, a “notice under s71” was one alternative to require the court to proceed, the other being the court’s own decision that it would be appropriate to do so. The Note concluded by speaking of the “Service of s 71 Notice”, a reference which, however it is to be reconciled or not with the body of the Note, again looks to service of a notice outside that of the Note itself. Thus both the notice itself and the Note look to a document outside the Note as providing the statutory notice which is contemplated. Moreover, the Note, unlike the notice, was not signed by the “prosecutor”, a further point of distinction.
59. There is nothing in the discussion before the judge on 21 May 2001 (or 23 May) to suggest otherwise. In as much as there is reference to any notice, it is to a notice “under section 71(1)(a)”, and not to the Note. Nothing is said to suggest that the Note is relied on as providing the Court with the prosecutor’s view as to the minimum amount. There is simply no discussion of the minimum amount.
60. It is true that section 72(1) merely requires “written notice”: nevertheless what is required is a formal document in writing with the important consequence that without it the court cannot make a confiscation order. Where one document describes itself as such a notice to the court, the terms of which it is intended to provide notice are not to be picked up in bits and pieces from separate documents not similarly described, unless perhaps there is a clear incorporation of another document into that described as the notice.
61. Even if the first notice had expressly incorporated the Note, which it did not, it would have been difficult to determine from the Note whether the prosecutor’s intention was to rely on a section 72(1) notice or a section 71(1)(a) notice. Ultimately the Note speaks only of a section 71 notice. Even if nevertheless the Note was to be interpreted as contemplating both a section 72(1) notice in the case of count one and a section 71 notice in the case of count two, the fact would remain that only a section 71 notice was served. Ultimately therefore there is nothing in the Note to detract from reading the section 71 notice as the notice which the prosecutor intended to give to the court.
62. In our judgment therefore, the Crown is confined to the first notice itself. That, however, is simply not a notice under section 72(1) and says nothing either expressly or by inference about the minimum amount. On the contrary, the notice is by reason of its own heading and its own terms clearly intended to be a notice under section 71(1)(a) of the 1995 provisions rather than a notice under section 72(1) of the 1988 provisions. The 1995 provisions, however, are not in the least concerned any more with the matter of a minimum amount. In these circumstances we think it is impossible to regard the first notice as somehow fulfilling the function of a section 72(1) notice. In a situation where what is called for is a section 72(1) notice under the regime of the 1988 provisions, the first notice must be regarded as simply ineffective and invalid.
63. To the extent that Mr Farrer’s submissions contained an element to suggest that the absence of any reference of any kind, express or implicit, to the court’s ability to make an order in at least the minimum amount was a mere technicality which did not destroy the validity of the notice, we are unable to agree. The reference in the notice to it appearing to the prosecutor that the court would be able to make an order in at least the minimum amount is the essence of the notice. That after all is the critical difference from the regime under the Drug Trafficking (Offences) Act 1986. The 1988 provisions do not simply require a notice from the prosecutor to sanction the making of a confiscation order, but a notice of a particular kind, designed to ensure that, at any rate in the prosecutor’s opinion, the exercise of the power to make a confiscation order will not prove to be a waste of time and resources.
64. In this connection Mr Farrer sought nevertheless to rely on R v. Martin (2002) 2 Cr App R (S) 34 as an example of a case in which no complaint was made about the failure of a section 72(1) notice to contain any reference to the minimum amount. In that case the notice given by the prosecutor was in these terms (see at para 42):

“I write to give you formal notice in accordance with Section 72 of the Criminal Justice Act 1988 as amended by the Proceeds of Crime Act 1995, that it appears to the prosecution that were the Court to consider that it ought to make a Confirmation Order against the defendants pursuant to Part IV of the Criminal Justice Act 1988, as amended by the Proceeds of Crime Act 1995, it would be able to do so.”

65. Martin concerned the appeals of a number of different appellants. The trial judge found, and this court agreed on appeal, that the notice just cited related to only some of the appellants and not to others. For this reason the notice was held to have been invalid in the case, for instance, of Martin (para 47). Mr Farrer pointed out the absence of any complaint that the notice had said nothing about the minimum amount: and that this was so not only in the case of Martin but also in the case of other appellants, viz Went, where no point was taken as to the invalidity of the procedure and the notice was therefore accepted as valid (see at para 59). We think, however, that Mr Farrer’s reliance on Martin is without substance. In the case of Martin the notice was invalid in any event because it did not even apply to him. In the case of Went, the notice was regarded as valid and no point was taken as to the terms of the notice. At best, therefore, Martin stands as a case where a point might have been taken but was not. As such, it constitutes no authority in favour of Mr Farrer’s submission.
66. In any event, we are doubtful whether there was after all any point that could have been successfully taken. It is true that the headnote (at page 123 para H5) contains a remark that the notice “made no reference to the minimum amount”. However we have been unable to find any reference to that in the judgment of Mantell LJ. Although the point need not be decided, and we do not decide it, it seems to us to be very arguable that when the notice concluded (see above) “were the Court to consider that it ought to make a Confiscation Order…it would be able to do so”, it was implicitly, although not explicitly, stating that the court would be able to make an order in at least the minimum amount. This is because section 71(6) plainly requires that any sum ordered to be paid by a confiscation order made by the court “must be at least the minimum amount”.
67. We therefore reject the Crown’s primary case on this appeal.

The second issue: Did the court nevertheless have jurisdiction in the absence of a valid first notice to continue confiscation proceedings under the 1988 provisions until such time as the second notice was given?

68. Mr Farrer submitted, in accordance with the judge’s ruling below, that the absence of a valid notice under section 72(1) was in any event not critical to his jurisdiction, since the court had jurisdiction to proceed under section 71 in any event. A section 72(1) notice was only a condition precedent to the making of a confiscation order, not to its consideration. Therefore the court could proceed under the general power granted to it under section 71. It was only the final making of its confiscation order that was conditional on a prior section 72(1) notice, but by the time that the court made its order on 23 April 2002 it had already been clothed with jurisdiction to do so by the second notice given on 15 April.
69. Counsel for the appellant, on the other hand, submitted that a valid section 72(1) notice was a condition precedent to embarking on the whole procedure. This was emphasised by the language of not only section 72(1) (“shall not make a confiscation order…unless”) but also of section 72(2) (“If the prosecutor gives the court such a notice, the court shall determine whether it ought to make a confiscation order”).
70. We think that this is a nice argument. In favour of Mr Farrer’s submission is that the 1988 provisions seem to make a distinction between the court making a confiscation order (see sections 71(2), 71(6), 72(1) and 72(5)) and the court determining or considering whether it ought to make one (see sections 72(1), 72(2), 72(3) and 72(4)). The distinction can be seen operating within section 72(1) itself (“shall not make”… “were the court to consider that it ought to make”). Moreover, there is some force in a view that section 71 is concerned with jurisdiction, while section 72(1) is concerned with mechanics. Furthermore, we are not necessarily persuaded that section 72(2) is an independent condition precedent. It certainly imposes on the court the duty to determine whether it ought to make a confiscation order only where a section 72(1) notice has been given. That does not have to mean that in the absence of a notice the court has no power to make that determination.
71. On the other hand, Mr Farrer’s construction makes no sense. First, the purpose of the section 72(1) notice would appear, as has already been said and as is not, we think, in dispute, to have been intended to avoid the waste of time and resources which can occur if the court embarks on confiscation proceedings which in the event culminate in the court’s inability to make any order at all or an order in any significant amount. If that statutory purpose is to be achieved, it would be useless for the court to proceed on its own initiative, and without a prosecutor’s notice, only to be stopped in its tracks at the last possible moment because the prosecutor continued to the end to withhold the notice which is a condition precedent for the making of an order. Secondly, if the court were intended to retain an independent right to initiate confiscation proceedings, one would expect that to be spelled out (as it is in section 71(1) of the 1995 provisions) and in terms which required the court to satisfy itself that there were prospects that, if it were to conclude that it ought to make an order, it would be able to do so in at least the minimum sum. Thirdly, the whole logic of section 72(1) on its own terms strongly supports the view that the prosecutor’s notice must be given at the outset of the whole process: for the notice itself contemplates that the court has yet to make up its mind whether it ought to make a confiscation order.
72. In the absence of authority, we would conclude that the purposive argument outweighs the purely semantic and that therefore the section 72(1) notice is a condition precedent to the whole process. On this basis, section 71 contains the court’s general jurisdiction, but section 72 contains both a further limitation on that jurisdiction and explains how that jurisdiction is to be operated. That would explain why the provision as to the notice is found in section 72 rather than in section 71. In effect we think that the opening words of section section 72(1) – “A court shall not make” – need to be interpreted as meaning “A court shall not proceed to make…”
73. In any event, however, we think that our judgment on this matter is supported and possibly even concluded as a matter of authority. In Martin a somewhat similar point occurred. In that case, as already stated above, the prosecutor’s notice was invalid in the case of certain appellants because it did not refer to them. The judge conducting the confiscation proceedings found that that was so and therefore held that in such cases the notice was invalid. Nevertheless, he considered that he was entitled to conduct and continue with the proceedings under his own initiative on the basis that he was within the 1995 provisions and thus could invoke the amended section 71(1)(b). This court held that he was wrong in so holding, and that the 1988 provisions applied. As a result the confiscation orders in question had to be quashed. In so holding, this court made it clear that under the 1988 provisions a valid section 72(1) notice was a condition precedent to the initiation of the whole process. We refer to the following passages of the judgment of Mantell LJ –

“39…The amendments made by the 1993 Act do not touch upon the discretionary nature of the power to make a confiscation order or the manner in which the procedure might be initiated…

“40. Those changes introduced by the 1995 Act came into force on November 1, 1995. Importantly in the present case they permitted the court to proceed either as before on written notice given by the prosecutor or of its own motion…

“48…We consider that we are bound to follow Ahmed with the consequence that the 1995 amendments did not apply and the court was not invested with the power to initiate the confiscation procedure.

“49. For that additional reason it seemed to us that in making the order the court acted without jurisdiction.”

74. It is inherent in this court’s judgment in Martin that (i) a section 72(1) notice is a condition precedent not only to the making of a confiscation order under the 1988 provisions but also to the initiation of the whole procedure; and (ii) in the absence of a valid section 72(1) notice, the court has no power of its own, unlike the situation under the 1995 provisions, to initiate the procedure. We are inclined to think that that reasoning is binding on us as part of the ratio of Martin. The most that could be said is that in Martin there was no separate argument, as there has been before us, that the section 72(1) notice is not a condition precedent of the initiation of the procedure, but only of the making of an order. In any event, we regard the reasoning in Martin as strongly supportive of the conclusion at which we have independently arrived.
75. It follows that until the service of the second notice the judge was acting without jurisdiction. The question then arises whether that second notice came forward in time to save the proceedings as a whole. It is hard to see how that could be possible. It follows that inter alia the ruling relating to the lifting of the veil issue would have been without jurisdiction. However, there was no particular focus before us as to that particular aspect, because the larger issue was whether anything relating to confiscation proceedings which took place after sentence on 23 May 2001 could be effective. That takes us directly to the third issue relating to the court’s power to postpone the confiscation proceedings beyond sentence. It was common ground that unless the court had power to postpone, everything which followed sentence was without jurisdiction, including the second notice itself.

The third issue: Did the judge have power to postpone the confiscation proceedings beyond sentence?

76. Mr Farrer submitted that the judge’s power to postpone existed independently of a section 72(1) notice, since section 72A operated “Where a court is acting under section 71…” (see the opening words of section 72A(1)). He pointed out that section 72A could easily have been premised not upon the court acting under section 71 but upon the court acting pursuant to a notice under section 72(1). Indeed, he relied on this argument in further support of his position under issue two above.
77. In our judgment, however, this issue is essentially governed by the same considerations as the second issue. If a court has no jurisdiction to initiate confiscation proceedings in the absence of a section 72(1) notice, then it has no power to postpone those proceedings beyond sentence. That power of postponement is only given for the purpose of the confiscation order procedure and in particular only when the court “considers that it requires further information…” to enable it to make the determinations it needs to make for the purpose of a confiscation order. We would observe that the opening words of section 72A are “Where a court is acting under section 71” (our emphasis). The court does not act under section 71 merely because section 71 gives to the court a general power to make a confiscation order, in circumstances where it cannot exercise that power in the absence of a section 72(1) notice. For the reasons given under the second issue, it cannot be said that a court is acting under section 71 in the absence of a section 72(1) notice. The phraseology of the opening words of section 72A is therefore consistent with our construction of section 72.
78. It is true that section 72A could have been phrased to operate in terms of a court acting pursuant to a section 72(1) notice: but although section 72(1) is a condition precedent to the court’s section 71 jurisdiction, the court still acts, where a notice has been given, under section 71. We do not consider, therefore, that the opening words of section 72A assist the Crown.
79. We think that our construction of these provisions is supported by R v. Miranda (2000) Cr App R (S) 347. There the confiscation order against the appellant was made and sentence handed down on the same day, being a day more than six months after his conviction (in that case his plea of guilty), but there had been no application to postpone the making of the confiscation order beyond six months on the grounds of exceptional circumstances and no such exceptional circumstances existed: therefore the confiscation order was quashed (at 357). Nevertheless the prosecution sought to save the order on the basis that the six months time limit could not start until the court “was acting under section 71”, that that could not occur until the judge had himself decided to act under section 71, and that on the facts that had not occurred until the date of the order itself. This court nevertheless rejected that submission. On the facts the prosecution’s section 72(1) notice and the prosecution’s section 73 statement had both been served by or on the day on which the appellant had pleaded guilty. Nelson J said this (at 356):

“As soon as the court embarks upon the process of deciding whether to exercise the power under section 71 it can be said that it is acting under that section. Where, as here, the written notice from the prosecutor under section 72(1) has been served, and where, as here, the prosecutor’s statement under section 73(1)(a) has also been served on the court and on the defendant, the process of acting under section 71 has commenced…”

80. We think that that supports our view that in the absence of a section 72(1) notice it would not be said that the court was acting under section 71.
81. It follows that even where it is contemplated that a section 72(1) notice will be served in due course, it is not possible to postpone confiscation proceedings and proceed directly to sentence before the notice is given.
82. For all these reasons we concluded that the confiscation order in this case was made without jurisdiction and must be quashed.

The fourth issue: In any event, did the court fulfil its obligation under the concluding words of section 72A(1) to specify the period of the postponement?

83. In the light of the above, it is unnecessary to decide this issue. Since it was argued, however, we will briefly give our opinion.
84. It is now common ground that the words at the end of section 72A(1) “for such period as it may specify” import an obligation on the postponing court to specify the period of its postponement. The law is to be found in a series of cases now culminating in R v. Pisciotto (27 June 2002) [2002] EWCA Crim 1592, a case on the identical language to be found in section 3 of the Drug Trafficking Act 1994. There, in the judgment of Keene LJ, this court reviewed the earlier authorities, such as R v Steele and Shevki [2001] 2 Cr App R (S) 40, R v. Ross [2001] 2 Cr App R (S) 109, R v Davies [2002] 2 Cr App R (S) 43 and R v. Copeland (8 March 2002) [2002] EWCA Crim 736 and concluded that a period must be specified. Keene LJ also said this –

“22. Like the court in Davies, we do not regard the second use of the word “may” in section 3(1) as indicating that the court has a choice as to whether or not it specifies a period. It is more likely that that word is used there to indicate that the court has a discretion as to the length of the period to be set, subject to the normal six months maximum. It does not relieve the court of its obligation to specify the period of postponement whenever section 3 is used.

“23. We accept the submissions of Mr Bealby that the penal nature of the Act when dealing with confiscation orders justifies a strict interpretation of the language of section 3 and also indicates why it was that Parliament considered such a specification of the period of postponement to be necessary. It is likely that the legislature did not wish to leave the offender in such a case in ignorance of the period of time for which he would have this financial threat hanging over him. While it would normally not exceed six months, he would be entitled to know what particular period was in fact envisaged.”

85. In the present case the judge postponed the proceedings until 2 July 2001 in the first instance on the basis that he would then hear and decide the lifting of the veil issue and then give further directions, if necessary, for any further determinations. The appellant does not complain that the fixing of a date does not amount to the specification of a period, but submits that the statute requires that the overall period for the final determination of the whole proceedings has to be fixed and specified at the outset.
86. We do not agree with that submission. The statute says nothing about an overall period or an initial postponement until final determination. On the contrary, section 72A(1) makes it clear that the power to postpone is directed to enabling information to be obtained for any of the three individual determinations mentioned in subparagraphs (a), (b) and (c): “it may, for the purpose of enabling that information to be obtained, postpone making that determination for such period as it may specify”. As this court stated in Miranda at 356:

“The time limit under section 72A is applicable where the following conditions are satisfied:

(1) the court is acting under section 71;

(2) the court requires further information before determining whether the defendant has benefited, or whether his benefit is at least the minimum amount, or determining the amount to be recovered in his case;

(3) the court postpones the determinations for the purpose of enabling that information to be obtained.”

87. Moreover, as section 72(2) states, more than one postponement may be made.
88. We would therefore accept that the court was entitled to specify a period of postponement for the purpose of obtaining information for determining the lifting of the veil issue, which would also determine whether the appellant had benefited from his offences. This is particularly so where, as the Crown accepted already on 21 May 2001, the determination of that issue in favour of the appellant’s case that he had received no benefit might resolve the whole proceedings in his favour at that stage. Thus on one possible outturn, the period up to 2 July 2001 would encompass the overall period of the proceedings.
89. It is true that this solution does not fully subscribe to the dictum cited above from para 23 of this court’s judgment in Pisciotto to the effect that the legislature did not wish to leave the offender in ignorance of the period of time for which he would have the financial threat of confiscation proceedings hanging over him. Thus this appellant could not know as of 21 or 23 May 2001 when the confiscation proceedings against him would be concluded. We think, however, that the requirement of a specified period is likely to encompass not only that purpose but also several wider purposes: the specification of a period is in any event likely to lead to greater efficiency and more secure policing of the timetable of the proceedings, to the benefit of the offender; and at any stage of the proceedings the offender will know what has to be prepared for and decided and by when. It can hardly be to an offender’s benefit to have specified for him an entirely unrealistic overall period at the outset of complex confiscation proceedings in the knowledge that such a period will have in due course to be revised and extended, in exceptional circumstances even beyond six months, in preference to the specification of an efficient and well prepared programme of staged periods for different determinations. Of course, if time is wasted at the outset, it may prove more difficult to prove the exceptional circumstances where a period of more than six months is ultimately needed.
90. If therefore the appeal had turned on this issue, raised by the appellant’s ground 6, in our view it would have failed.

Conclusion

91. As it is, for the reasons which we have sought to explain under issues one, two and three, we have allowed this appeal and quashed the confiscation order. It also follows that the judge’s second order for prosecution costs must also be quashed, but it is common ground that we reinstate his earlier costs order in the sum of £266,367.
92. In a case where the fraud has been as extensive as was proved and the appellant’s benefit as great as the judge found it to be, the result is an unfortunate one which, as we have said, we have reached with reluctance. Nevertheless, it remains our duty to recognise the fact that the judge in this case acted without jurisdiction. As has been remarked in a number of cases, this is a penal statute and its provisions have therefore to be strictly construed against the Crown.
93. At the time of making known our decision on 31 July 2002, we adjourned the Crown’s application for leave to appeal so that such an application, together with any point of law which the Crown may ask us to certify, could be considered at the time of handing down this judgment.