England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th June 2003

Lord Justice Pill:

1. On 24 March 2000 in the Crown Court at Southwark before His Honour Judge Focke QC, Kamlesh Soneji pleaded guilty to an offence of conspiracy to convert property and remove it from the jurisdiction knowing or suspecting it represented the proceeds of criminal conduct. On 3 April 2000 David Bullen pleaded guilty to the same offence. On 18 August 2000 Soneji was sentenced to 4½ years imprisonment, varied on appeal to 3½ years imprisonment, and Bullen to 6 years imprisonment, varied on appeal to 5 years imprisonment. On 28 January 2002, at the Central Criminal Court before the same judge, a confiscation order was imposed on Soneji. He was ordered to pay £75,350 payable within 18 months with 12 months imprisonment consecutive to be served in default. That order was varied on 7 February 2002 to payment of £30,284 with 9 months imprisonment in default. On 7 February a confiscation order was imposed on Bullen. He was ordered to pay £375,000 with 21 months imprisonment consecutive in default.
2. A co-defendant Louis Everson was also convicted and on 18 August 2000 sentenced to 7 years imprisonment. An appeal against conviction was dismissed. On 7 February 2002 a confiscation order was imposed on him. He was ordered to pay £200,000 with 18 months imprisonment consecutive in default.
3. Soneji and Bullen appeal against sentence, the confiscation order only, by leave of the single judge. This is yet another case in which the lawfulness of confiscation orders is challenged on the ground that they were made more than "six months beginning with the date of conviction", a period of time mentioned in section 72A of the Criminal Justice Act 1988 ("the 1988 Act"), as amended. Many authorities were cited to the Court. In the course of the hearing, further very recent cases were brought to the attention of counsel and it also became known that a five judge court had been convened to consider whether an earlier judgment which had been relied on was reached per incuriam. The Court has received extensive post-hearing written submissions from the parties. There can rarely have been such judicial output upon what would appear to be a comparatively straightforward question, that is, when, in relation to the date of conviction, a Court is entitled to make a confiscation order against the convicted person. There have been increasingly complex attempts, including submissions in the present case, to reconcile the authorities.
4. Section 71(1) of the 1988 Act provides, insofar as is material:

"(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 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."

5. By the Criminal Justice Act 1993, a new section, section 72A, was inserted into the 1988 Act. That section, as further amended and insofar as is material, provides:

"(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 from any relevant criminal conduct; or

(b) [repealed];

(c) determining the amount to be recovered in his case …,

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,

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 any of the determinations mentioned in subsection (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 subsection (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 subsection (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 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."

6. As already stated, Soneji pleaded guilty on 24 March 2000 and Bullen on 3 April 2000, those date being the dates of conviction for the purposes of the Act. Sentence was adjourned to await the outcome of the trial of Everson. He was convicted on 25 May and 18^th August 2000 was fixed as the date when all three defendants would be sentenced. Each of the defendants was informed that there would be confiscation proceedings against him.
7. The case was listed on 29 June 2000 for an application by counsel for Everson to break the date for sentence but the application was not pursued. Counsel for Soneji and Bullen were present at the hearing, though not counsel who had appeared at the trial or who now appear. The powers of the Court with respect to confiscation proceedings and their application to the facts of the case were considered at that and other hearings. Counsel for Everson (Mr Henry) requested a hearing in September and counsel for Soneji (though not counsel for Bullen) requested an early hearing. The following exchange occurred:

"MR HENRY: Your Honour, may I deal with it in this way if I might; it has been helpful because all counsel have conferred this morning and have indicated that a final hearing, if it can be accommodated by the Court, or more importantly by your Honour, if it might be held in September. It is right to point out –

JUDGE FOCKE: The answer is no.

MR HENRY: Well your honour, it is right to point out.

MR WALBANK: I am very sorry to interrupt but Mr Henry seems to be proceeding on a false basis about the likely date on which the hearing could be accommodated. It might have been wise, before addressing your Honour on the timetable, to have some discussions, which I have now had, with Ms Benjamin the listing officer.

I understand from her that the earliest date when the hearing could be accommodated would be some time in the two weeks after 30^th October. That is the first occasion when your honour would be available to hear the confiscation proceedings."

Mr Walbank told the court of what he understood to be the inherent common law power, in some circumstances, to adjourn or postpone for a period of more than 6 months from conviction but added that "to be completely safe, it would be sensible in my submission, to consider whether there were exceptional circumstances justifying delay". Dates were fixed for the service of statements.

8. At the suggestion of counsel for Soneji, the judge directed that the matter was to be mentioned again on the proposed date for sentence, that is 18 August. The judge said that he had "pencilled in" a date "at the beginning of November, the week of 30 October" for the confiscation hearing, a date more than four months away.
9. On 18 August, the judge sentenced the defendants. Prior to sentence the confiscation hearing was formally postponed until after passing sentence and fixed for 30 October, that is outside the 6 month period mentioned in section 72A. The judge also ordered that the defendants should make any response to the prosecution's statement upon the confiscation order. As the judge stated when he gave a further ruling on 3 November 2000, no enquiry was made on 18 August of the defendants either as to the postponement or as to the fixing of the date of 30 October. The judge added: "There was no analysis of the factors which might amount to exceptional circumstances on that occasion nor how they might separately affect each defendant".
10. On 30 October, the prosecution requested a further postponement until a date in the new year. The defendants Soneji and Bullen then objected to the confiscation proceedings on the basis that no proper application had been made within six months. The judge stated in a ruling on 3 November that it had been "plain, by the 18^th August, that more information was needed in order to enable the confiscation hearing to proceed". Nevertheless, the judge stated that "the purpose of the order [of 18 August] was not to facilitate the obtaining of further information but, more importantly, to cope with a listing problem and, as I say, listing problems are not sadly exceptional circumstances". Having considered the authorities the judge stated that "listing difficulties are not exceptional, I am afraid they are somewhat commonplace". The judge concluded:

"I must, however, before resorting to any common law power, be satisfied that it is not designed to circumnavigate the provisions of Section 72A or the intentions of Parliament. In the circumstances of this case I am satisfied that the inherent powers can be appropriately and were appropriately used, in that the direction on the 18^th August was that an adjournment should take place because the hearing should be adjourned until the 30^th October, pursuant to the Court's inherent powers.

All parties, for some time before 18^th August, knew of the listing difficulties and that the only practical solution was to fix the confiscation determination for a hearing on the 30^th October, with perhaps the first two weeks in November being allocated for that hearing. I am satisfied that the order made directing that hearing on 30^th October was, in all the circumstances, a just and fair order and the purpose of the order was not to facilitate the obtaining of further information but, more importantly, to cope with a listing problem and, as I say, listing problems are not sadly exceptional circumstances, but there has to be a just and fair solution to such matters and, in the circumstances, it seems to me fair to invoke, as I say, the inherent powers of the Court and, accordingly, I hold that the order made on the 18^th August was a valid one."

11. In a further ruling on 8 March 2001, following the decision of this Court in R v Steele and Shevki [2001] 2 Cr App R (S) 40, the judge stated that "The standing over of the matter was not to enable more information to be gathered but it was simply because of the unavailability of a judge to hear the proceedings. I am satisfied … that the common law power is still alive and well in such circumstances".
12. As further refined in post-hearing written submissions, Mr Walbank's submissions for the respondent are:

(i) The unavailability of the judge until after the date six months from the date of conviction constituted "exceptional circumstances" within the meaning of section 72A(3) of the Criminal Justice Act 1988 and, in accordance with the authority of R v Chuni, the requirements of that provision were therefore satisfied.

(ii) In the alternative, if section 72A(3) of the 1988 Act was unavailable to the judge to enable him to list the confiscation inquiry according to his availability (either because that period of postponement was not fixed "for the purpose of enabling that [further] information to be obtained" or because the judge's unavailability did not amount to "exceptional circumstances" within the meaning of the section), then the court's inherent common law powers of adjournment were available to fill the statutory lacuna and the listing decision necessitated by the judge's unavailability was taken pursuant to those common law powers.

(iii) In the further alternative, once the statutory regime was "engaged" and the court was "acting under section 71" of the 1988 Act (as the Appellants concede it was, given that the defendants had been convicted of a relevant offence and the prosecution had served written notice) the court had by definition assumed jurisdiction to deal with the confiscation proceedings and it was not thereafter deprived of jurisdiction by any alleged failure to comply with either the requirements of section 72A or the 1988 Act or any common law requirement.

In support of submission (i), Mr Walbank argues that even though the judge had expressly held that there were no exceptional circumstances, listing problems not being exceptional circumstances, an analysis of the circumstances required or at least permitted a conclusion that there were exceptional circumstances for the postponement beyond the six months.

13. There have undoubtedly been cases in which this Court has found a common law power to postpone beyond six months to exist, though a stricter view has been taken in other cases. Attempts have been made to reconcile decisions of this Court and in Steele and Shevki a comprehensive analysis of the situation was attempted, having regard to the statutory requirements and perceived common law powers. The Court, Judge LJ presiding, stated, at paragraph 58:

"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 section 3(1) or 3(4) [of the Drug Trafficking Act 1994] 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 that 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 unavailability of the judge, without depriving a subsequent order for confiscation of its validity,"

A broad view was thus taken of what could be exceptional circumstances, the lengthy trial of a co-accused being given as an example at paragraph 33. In the earlier case of Cole (unreported 22 April 1998), Judge LJ again presiding, it was held that the illness of the judge could amount to an exceptional circumstance.

14. In R v Sekhon [2002] EWCA Crim 2954 a comprehensive analysis was conducted, Lord Woolf CJ presiding. It was concluded (paragraph 29) that "we would expect a procedural failure only to result in a lack of jurisdiction if this was necessary to ensure the criminal justice system served the interests of justice and thus the public or where there was at least a real possibility of the defendant suffering prejudice as a consequence of the procedural failure". The Lord Chief Justice added, at paragraph 37, that "the strict compliance with procedural requirements of this kind [postponement of confiscation proceedings] would not normally be expected to go to jurisdiction". Failure formally to postpone the confiscation proceedings until after sentence was, however, held to be a requirement going to jurisdiction (paragraph 64).
15. More recently in R v Ruddick 2003 EWCA (Crim) 1961, Rose LJ, Vice President presiding, Morison J, giving the judgment of the Court, stated that Sekhon "is, and was intended to be, an authoritative ruling on the correct approach to the consequences of a breach of the procedural requirements of the legislation, and section 72A in particular". The Court then made its own very detailed statement of the principles which are to be derived from Sekhon. These included, at paragraph 30(3)(c):

"Will a failure to hold a forfeiture hearing within 6 months make any forfeiture order a nullity? If without exceptional circumstances the defendant had not had a forfeiture order made against him within 6 months of the date of postponement, then in our view no such order could lawfully be made. The time limit is there to protect the defendant from unfairness through justice being unduly delayed. Like other limitation periods, Parliament has intended a cut-off date which, subject only to exceptional circumstances, entitles a defendant to be free from the risk of further punishment. The fact that the court is given a limited discretion to extend time beyond that date ['exceptional circumstances'] supports this view. What are exceptional circumstances may well include administrative matters such as court availability, and judge and defendant availability. But what is 'exceptional' is not a matter that can be, or should, be further defined."

16. It was in R v Simpson [2003] EWCA Crim 1499, that a five judge court, Lord Woolf CJ presiding, considered, amongst other things, the submission that the decision in Sekhon should not be followed because it was contrary to the earlier decision of the Court in R v Palmer [2002] EWCA Crim 2202. The Court held that the law had been misunderstood and misapplied in Palmer and that the judgment in Sekhon should be applied. Palmer was a case in which defective notices under section 72 of the 1988 Act had been served by the prosecution, a point that does not arise in the present case. In was held in Simpson that any defects in the notice did not deprive the trial judge of jurisdiction.
17. We heard considerable argument as to whether, when postponing the confiscation hearing, the judge was acting under section 72A or at common law. In his rulings after 30 October, he claimed to have been exercising common law powers but Mr Valios QC, for the appellants, draws attention to the judge's acceptance that on 18 August more information was needed to enable the confiscation hearing to proceed and submits that, in those circumstances, when the judge postponed that hearing until after sentence he inevitably engaged the statutory provisions. He submits that a common law power to adjourn is only available once the procedure in section 72A has been complied with, that is postponement of the determination to a date outside the statutory six month period due to exceptional circumstances.
18. The statutory provisions not having been complied with, the confiscation orders must be quashed, it is submitted. Whatever was said at a later stage, the purpose of the prosecution application on 18 August 2000 was to postpone the confiscation process in order that further information could be obtained.
19. In R v Chuni [2002] 2 Cr App R 371, the judge who had tried the defendant and sentenced him was not available due to illness and another judge adjourned the confiscation hearing to a date more than six months after the conviction. The case was a complicated one and the defendant consented to the adjournment. Gibbs J stated:

"It is in our view plain from the decision in Shevki and the detail of the passage actually quoted from that decision that there could be no lawful postponement (a) unless there was an actual judicial decision to that effect and (b) if the judicial decision resulted in a postponement beyond the six month period, unless exceptional circumstances existed.

If those conditions were satisfied, was it necessary that the judge making the decision should use the words "exceptional circumstances" in order to render the decision lawful, or could it be enough that the judge relied on proper reasons and that those reasons in fact reflected exceptional circumstances whether that phrase was used or not?

Our answer is that, despite the absence of the words "exceptional circumstances" from the decision, the decision was capable of being lawful under the Act. It was lawful provided that a real judicial decision was made on good grounds and that those grounds were capable of, and did amount to, exceptional circumstances. In our judgment there were exceptional circumstances to be found in the reasons given by the judge. It is important to note that the postponements or adjournments were all with the consent of the appellant, as we have already observed. In the vital hearing of March 1999 it is true that the appellant was not present, but it is plain that counsel was instructed on his behalf, but as the decision in the case of France indicates, it is an important matter to weigh in considering whether exceptional circumstances existed. In our judgment it is necessary, in deciding the presence or otherwise of exceptional circumstances, to consider the purpose of the legislation. The legislation is plainly intended to protect a defendant in avoiding prejudice to him caused by undue delay in determination. If a defendant's own interests dictate that the matter be postponed in order for him to obtain further information and make further enquiries, and if he indeed specifically requests an adjournment for that purpose, then that, in our view, is a strong indication that the circumstances are exceptional. In such a case the delay, assumed by the statute as being damaging to his interests, proves in fact quite the reverse. It is necessary in furtherance of his interests. Thus it represents an exception to the statutory assumption. We are satisfied that the judge, in postponing the matter in March 1999 for a period which took it beyond the six month period, was acting lawfully."

20. Until the insertion of section 72A, a confiscation order, if it was to be made at all, had to be made before "sentencing or otherwise dealing with the offender" (section 71(1)). That requirement was to an extent relaxed by the provisions of section 72A. It has been held that since the statutory relaxation in section 72A has been introduced there is also an inherent common law power to adjourn beyond six months. That the relaxation is a limited one has however been reaffirmed. At paragraph 27 in Sekhon Lord Woolf CJ stated:

"In relation to the procedural requirements which Parliament has imposed it is possible fairly readily to come to certain conclusions. These are as follows:

i) Since the 1988 Act was passed, Parliament has been attaching increasing importance to courts being in a position to make confiscation orders. For that reason it has relaxed the requirements of the order having to be made as part of the original sentencing process. In the 1988 Act in its unamended form, the court was unable to proceed to sentence until the court had gone through the procedural steps and dealt with confiscation. The subsequent amendments gave the court power to adjourn sentencing but care was taken to specify the limits on the power to postpone its decision to order confiscation. (See S.28 of the 1993 Act and the terms of S.2A of the 1988 Act inserted by S.28.) This process was continued by the 1995 Act which extended the court's powers.

ii) Parliament was intent on ensuring that wherever practicable the process of making a confiscation order and sentencing should be linked. It can be readily understood why Parliament should have adopted this course. After all, it is important that the defendant should know as soon as practicable what are the consequences to him of his conviction. Parliament, therefore, when it did relax the requirements did require the court to be satisfied that if it was to grant a postponement or extension there were 'exceptional circumstances' to justify this. (see S.72A(6))"

21. In Steel and Shevki, Judge LJ, at paragraph 33, stated that the court "may not specify a period which 'exceeds six months beginning with the date of conviction' unless satisfied that the circumstances are 'exceptional'." The date of conviction remains "starkly relevant". In Ruddick, Morison J stated that "In the absence of 'exceptional circumstances' forfeiture cannot be postponed beyond six months." In Chuni, it was stated that there could be no lawful postponement beyond the six month period "unless exceptional circumstances existed". In the earlier case of R v Lingham [2001] 1 Cr App R (S) 158, relied on in later cases as establishing a more relaxed approach to postponement, it had been held that there were exceptional reasons for further postponing the proceedings (page 161).
22. That the need for exceptional circumstances applies when the common law power is exercised was stated in R v October [2003] EWCA (Crim) 452. Giving the judgment of the court, Scott Baker LJ referred, at paragraph 19, to cases cited with approval in Sekhon "as supporting the proposition that the Crown Court retains a general power to postpone or adjourn confiscation proceedings for a period limited only by its own discretion as to whether or not there are special circumstances … ." Scott Baker LJ did refer, at paragraph 22, to an exercise of common law powers "to avoid falling foul of the rule that save in exceptional circumstances the confiscation inquiry must take place within six months of conviction and that an order for postponement cannot be made after the lapse of six months from conviction". However, the Court's conclusion, stated in paragraph 27, was:

"On our analysis what happened on 29 January 2001 was that the court exercised the common law power that we have identified earlier in this judgment. The fact that the judge may have thought he was making an order under section 3 [of the 1994 Act] is nothing to the point. What matters is that he exercised his discretion to extend the time for the confiscation proceedings for a period of six months because there were exceptional circumstances. The judge was told that the trial of Bravo was still outstanding and that there were additional defendants involved. Also, there were further investigations in Luxembourg that were incomplete. Mr Casey, who appeared on both occasions for the appellant, expressed uncertainty about whether the incomplete investigations could amount to exceptional circumstances but said that he could not argue against the other point. The court accordingly exercised its powers under the common law, the appellant not yet having appeared to be sentenced, but applied the test prescribed by section 3."

23. The requirement for exceptional circumstances has thus been imported into the exercise of the common law power. (See also general statement in Ruddick cited at paragraph 15).
24. Thus whether a power to postpone beyond six months from conviction is purported to be exercised under statutory powers or common law powers, there must be a finding of exceptional circumstances. A broad approach may be taken to the question of what may amount to exceptional circumstances (Steele and Shevki) and the expression "exceptional circumstances" need not be used (Chuni) but specific consideration of the reasons for postponement and a conclusion following that consideration which amounts to a finding of exceptional circumstances are required.
25. What happened in this case on 29 June has been set out at paragraphs 7 and 8 of this judgment. In circumstances where two of the three defence counsel had requested an early hearing, prosecuting counsel informed the Court that, having spoken to the listing officer, the earliest date when the hearing could be accommodated would be the weeks after 30 October. That date was pencilled in by the judge. Given the importance attached by Parliament and the courts to the link between confiscation order and sentencing, there was no such enquiry as could justify a finding that exceptional circumstances had been established. The say-so of the listing officer is insufficient. That is not a criticism of the listing officer but a recognition of the need for judicial scrutiny of the circumstances before a finding of exceptional circumstances can properly be made. There is no evidence of any enquiry from 24 March 2000 onwards, into whether a space could be found, during the six month period, for a confiscation hearing.
26. When the judge gave his ruling on 3 November 2000, that is after the six months had elapsed, he acknowledged, with admirable candour if we may say so, that on 18 August when the earlier decision was confirmed, no enquiry was made of the defendants as to the postponement and that there had been no analysis of the factors which might amount to exceptional circumstances. In his later rulings, the judge also candidly acknowledged, more than once, that there were not exceptional circumstances and to go behind that judicial finding would create a sense of injustice. Even if the judge's finding may be construed as making a general point that listing difficulties are not an exceptional event, so that it might be said that the use of the expression was not itself fatal, the absence of any judicial enquiry and finding upon the circumstances meant that the requirement was not satisfied.
27. Failure to address the question whether the circumstances could properly be described as exceptional and to make a finding to that effect is in our judgment fatal to the upholding of these confiscation orders. We would respectfully seek to sustain the principle that confiscation orders should not be quashed for mere defects in procedure. To give effect to the requirement that there must be exceptional circumstances, and if the expression is not to be a mere incantation, however, enquiry into the circumstances and the possibility and feasibility of a timely hearing, is required. The failure to address the question whether the general time limit of six months could be met, and the accompanying failure to find exceptional circumstances, was not in the same category as the defect in Palmer. To overlook these failures would be to nullify the statutory intention upheld in the cases. It is unfortunate when a confiscation order has to be quashed for defects such as these but it does not serve "the interests of justice and thus the public", to adopt the expression used by Lord Woolf CJ in Sekhon, if the requirement for the existence of exceptional circumstances to justify a postponement beyond six months, is just ignored.
28. Even if, contrary to the views expressed, the existence of exceptional circumstances is not invariably a pre-requisite of the exercise of the power to postpone or adjourn beyond six months of conviction, any exercise of the power must recognise, in the light of the authorities, the importance of promptness and the consequent need for a judicial appraisal of the circumstances, including those which it is suggested justify delay. A threshold of difficultness must be crossed. In this case, the lack of enquiry into listing difficulties following conviction and on 29 June, when the date of 30 October was pencilled in, and the lack of analysis of the situation then or, as acknowledged by the judge, on 18 August make it unfair to uphold orders eventually made in early 2002.
29. The appeal is allowed. On the facts of this particular case, the confiscation orders cannot be upheld and must be quashed.