England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NORTHAMPTON CROWN COURT
(ECCLES HHJ)

		Royal Courts of Justice Strand, London, WC2A 2LL
		31 July 2003

Lord Justice Potter:

Introduction

1. These three appeals concern the legality of Confiscation Orders made by His Honour Judge Eccles on 28 June 2001 (in respect of the first two appellants) and 3 December 2001 (in respect of the third appellant) at Northampton Crown Court. The first two appellants appeal with the leave of the single judge. The application of the third appellant was referred to the Full Court by the Registrar of Criminal Appeals.
2. The factual background of the offences preceding the Order and the chronology of the relevant events is as follows.

Factual Background

3. From about 1985 the third appellant ran a brothel in Northampton. Trade flourished and a second brothel was opened which was run by Angela Miller the third appellant's wife, who is a Thai national, and her son Don Miller. The first brothel was run by the first and third appellants and Angela Miller. Following internal disputes, Angela Miller dropped out and opened a third brothel with the second appellant in Leicester. All the brothels were raided by the police in 1998. The prostitutes in them were largely found to be girls from Thailand; many were also illegal immigrants. Each brothel was shown to have made substantial profits, the third appellant having benefited most from these criminal activities.
4. Following agreement between the prosecution and defence the realisable assets of the appellants were eventually determined at £35,000, £8,300 and £70,000 respectively.
5. On 27 July 2000 the three appellants and Angela and Don Miller were arraigned at Northampton Crown Court before His Honour Judge Bray. All pleaded guilty to the charges against them on various dates.
6. The third appellant pleaded guilty to:

i. a conspiracy between 1 January 1991 and the end of November 1998 to assist the illegal entry into the UK of a number of female Thai nationals together with his wife and son.

ii. living on the immoral earnings of four prostitutes (two being joint counts with the second appellant) between 31 July 1998 and 28 November 1998.

7. The second appellant was convicted of a similar conspiracy to that admitted by the first appellant between 1 December 1997 and 28 November 1998.
8. The first appellant pleaded guilty on 27 July 2000 to two offences of exercising control over a prostitute and received a non-custodial sentence on 18 September 2001. (There were various charges against Angela and Donald Miller which are irrelevant).
9. The second appellant was sentenced to a term of imprisonment which, following an appeal, was ordered to be of 12 months duration and the third appellant was sentenced to a total term of four years.

The Confiscation Proceedings: Postponement

10. On 21 July 2000 the prosecution issued a notice pursuant to Section 71(1)(a) of the Criminal Justice Act 1988 ("the 1988 Act"). It is admitted that each appellant was 'convicted' on the relevant dates for the purposes of Section 71.
11. On 11 September 2000 the police officer in charge of the case obtained ex parte from His Honour Judge Bray a Production Order under s.93(4) of the Criminal Justice Act 1988. The application, in the customary form, gave the judge some two pages of information about the appellants and the enquiries required to be made to quantify assets which might be amenable to confiscation. He made clear to the judge that a substantial period would be needed for the completion of inquiries in relation to the confiscation proceedings which the Crown would be seeking to have postponed.
12. On 15 September 2000, the matter came before His Honour Judge Bray for sentence. At the end of the opening by Mr Groome for the Crown, the following exchange took place, as recorded in the transcript before us:

"MR GROOME: As your Honour knows, there is one outstanding matter in relation to confiscation proceedings under the Proceeds of Crime Act. In due course, I will be making an application that those proceedings should be adjourned to a date shortly before Christmas and inviting your Honour to proceed with a sentencing before.

JUDGE BRAY: If everybody agrees to that, I will do that.

MR GROOME: Your Honour, yes.

JUDGE BRAY: Thank you very much, Mr Groome."

13. There was no dissent or adverse comment by the other counsel present save that Miss Tayton, who appeared for the third appellant said:

"Can I just deal briefly with the question – my learned friend having raised the confiscation hearing point – so far as Ron Miller is concerned, it was indicated to the prosecution that we do not accept the amount of benefit as set out in the case summary. The matter will, of course, be dealt with in the confiscation."

14. Miss Tayton then proceeded with her mitigation on behalf of the third appellant, in the course of which she observed as followed:

"But, in my submission, he is suffering and has suffered significant punishment already and, of course, there are still the confiscation proceedings to come. He is aware that there are further matters which the prosecution will seek so far as he is concerned. So, your Honour, I have indicated what I say about the benefit and it is not accepted, the amounts that the prosecution put forward."

15. The judge then heard the pleas in mitigation and put the matter over for sentence to 18 September 2000.
16. On that day, Mr Bright, counsel for Angela Miller, was obliged to inform the judge that she had not surrendered to custody and appeared to have absconded. However he took the view that there was no reason why the judge should not proceed to sentence bearing in mind that nothing more could be said on her behalf. The following exchange then took place:

"JUDGE BRAY: So you would like me to proceed to sentence. It would, of course, only be a part sentence, you appreciate that.

MR BRIGHT: In the sense that there would yet have to be an investigation into means and confiscation?

JUDGE BRAY: Ah, that is also true. … "

17. A little later, and still before sentence, the following exchange took place between the judge and Mr Donnellan, counsel for the second appellant:

"MR DONNELLAN: I am going to suggest that your Honour does not look at financial penalties because the Crown have served a notice indicating they are going to seek confiscation. If that is right, your Honour cannot make financial orders at this stage.

JUDGE BRAY: Of any kind?

MR DONNELLAN: That would appear to be so.

JUDGE BRAY: Right, well, I can see the logic of that.

MR DONNELLAN: …Given that the law has changed since Payne because of the confiscation proceedings, I am going to suggest your Honour considers either a community service order or a conditional discharge and leaves the financial penalties to due course."

The judge then proceeded to sentence.

18. As soon as sentencing was complete, Mr Groome raised the matter of the confiscation proceedings. The following is an extract from the transcript:

"MR GROOME: Your Honour, yes. The applications for confiscation under the Proceeds of Crime [Act], that is the first matter I would like to raise. Your Honour already knows something of the inquiries that are in hand. I hope your Honour would not think it unreasonable for the Crown to invite the court to list that matter for mention perhaps at a convenient date in December, certainly before Christmas?

JUDGE BRAY: Yes. Does the six month rule apply?

MR GROOME: It does, yes.

JUDGE BRAY: I think the earlier the better. I say this for one reason without wanting to aggravate the situation, that it has to be over before six months, as I understand it …"

19. Some discussion followed about whether or not there was a need for a final determination to take place within six months, following which there was the following exchange:

"JUDGE BRAY: Right. When would you like it to be then? Do we want to fix a date or do you want to go and see the Listing Office in the usual way?

MR GROOME: It would assist if we could see the List Office and try to arrange a date that is convenient for trial counsel.

JUDGE BRAY: Who is that going to apply to? Just two of the defendants, is it? Three.

MR GROOME: At the moment, notices have been served on all five. It is anticipated that there will be substantial proceedings against perhaps three. But that is a matter that will be reviewed after the conclusion of the inquiries that will take approximately another two months."

20. At Mr Donnellan's suggestion, the judge then proceeded to order a timetable for service by the Crown of the s.73 statement.

The Grounds of Appeal

21. We are not concerned on this appeal with any point taken in relation to the timetable fixed or the completion of the confiscation proceedings which took place on 20 June 2001. The appeal arises out of a preliminary point taken before His Honour Judge Eccles when, on 25 June 2001, after a number of adjournments, he sat to hear the confiscation proceedings. The point was belatedly taken for the defence that, on 15 September 2001, before passing sentence, Judge Bray failed to take a judicial decision and/or to make that decision manifest that the determination in the confiscation proceedings proposed by the Crown should be postponed until after the sentencing process as required by s.72A of the 1988 Act. Judge Eccles rejected the point taken. The grounds of appeal are that he was wrong to do so.

S.72A of the Criminal Justice Act 1988

22. Section 72(A) so far as material, provides as follows:

"(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

…

(c) determining the amount to be recovered in his case by virtue of section 72 above it may, for the purposes of enabling that information to be obtained, postpone making that determination for such period as it may specify.

…..

(5) A postponement or extension under subsection (1) … may be made –

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

(b)by the court of its own motion.

(6) …

(7) Where the court exercises its powers 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."

The Judge's Ruling

23. At the stage the matter came before Judge Eccles, he was referred to the decisions of this court in Steele and Shevki [2001] 2 Crim App R (S) 40 and Ross [2001] 2 Crim App R (S) 484 in relation to similar provisions for postponement contained in s.3(1) of the Drug Trafficking Act 1994. He did not at that stage have the advantage of the subsequent jurisprudence which has grown up in relation to problems of postponement generally and, in particular, the decisions in Sekhon and others [2003] 1 Crim App R 34, (which at paragraphs 27 to 29 sets out the general approach to problems of the kind arising in this case) and McCready [2003] EWCA (Crim) 02, the facts of which bear considerable similarity to the instant case, albeit the court in McCready was concerned with s.3(1) of the 1994 Act. Nonetheless, Judge Eccles is to be congratulated on the degree to which he anticipated those decisions in the carefully reasoned ruling which he gave.
24. In McCready, the position was summed up as follows at paragraphs 15-16 in which it was stated:

"15. The effect of those [statutory] provisions has been considered by this court on a number of occasions. It is now well recognised that the decision to postpone the confiscation procedure is a judicial decision involving the exercise of the court's discretion: see for example, Steele and Shevki [2001] 2 Cr App R (S) 40 and Ross [2001] 2 Cr App R (S) 484. The judicial decision must be made before sentence is passed and the decision must be made obvious by the judge. Potter LJ put the matter thus in Ross at paragraphs 25 and 26:

No particular form of words is required, but the decision to postpone must be made manifest and, in particular, it must specify the period of the postponement, which cannot go beyond six months from the date of conviction unless the circumstances are exceptional. …..

16. It has since been made clear that it is not necessary for the judge actually to announce his decision before imposing sentence. What he must do is to reach a decision about whether or not to postpone the confiscation inquiry before sentence. If he does so, it matters not whether he articulates that decision before or after passing sentence: see Steven Davies [2001] EWCA (Crim) 2902"

25. In the course of giving his ruling, Judge Eccles referred to the various exchanges which we have set out at paragraphs 12-19 above. He identified what he regarded as the clear acquiescence of counsel to postponement following Judge Bray's remark on 15 September that "if everybody agrees to that … I will do that". He referred also to the further passages on 18 September in relation to the fixing of a date for the confiscation proceedings, and continued:

"Now, having referred to the relevant material, it is certainly plain to me that, on 15 September, when His Honour Judge Bray said "I will do that" he was making a judicial decision. That leaves open the question of what the decision was that he was going to do to which I will return.

Secondly, he gave everybody an opportunity to make representations about the Crown's proposition that sentencing should occur first and confiscation should occur later. Mr Groom was undoubtedly inviting His Honour the Judge to proceed with the sentencing process before something was to occur and the judge was asking whether everybody agreed to that and, if so, he then said, finding assent from the silence of the Bar, "I will do that."

It is right that on 15 September, nobody said anything to the learned judge of relevance, apart from Miss Tayton, but it seems to me clear enough that when Miss Tayton said "That matter will, of course, be dealt with in the confiscation," she was acknowledging that there was going to be a confiscation hearing. Those were words apt only, it seems to me, to encompass a belief on her part, that that hearing would take place and it could only take place, in the light of the proceeding observations, after sentencing had occurred. Similarly her words, "There are the confiscation proceedings to come", in addition to the punishment which, she says, her client has suffered already, are words apt only to encompass an acknowledgement that those proceedings will occur and they will occur after sentence.

Similarly, the words spoken by Mr Bright before sentence indicate to me that he had acknowledged that there would be a confiscation hearing.

The words spoken by Mr Donnellan, not only indicated that there would be a confiscation hearing, but involved a direct submission to the judge that he had no power to make any financial orders at that stage.

To my mind, it is perfectly plain, first of all, that all those counsel who spoke had acknowledged before sentence that the confiscation hearing was going to take place after the hearing and was going to take place.

It is submitted on behalf of two of the defendants by Mr Donnellan and Mr Williams, that they had been given to understand that their clients might not have to face confiscation proceedings. That, however, does not assist me in deciding whether, on the occasion that the judge uttered the words that he did, deciding whether he was making manifest a decision on his part that the confiscation proceedings were to be postponed. If those counsel who spoke clearly indicated an acknowledgement that the determination had to be postponed, those counsel who heard that being said and sat by had the opportunity to seek clarification if they wished and they failed to do so. In my judgment, they failed to do so because they clearly understood that all the relevant proceedings had been postponed as against those defendants in respect of whom notices had been issued by the prosecutor.

Furthermore, as I have observed in the course of these proceedings before, nobody suggested on 18 September that the learned judge had failed to postpone the determination. Nobody took the point when the matter came back before the court in December for the period of postponement to be extended; nobody took the point when the matter came back before the court in March and April when further extensions of the period of postponement were granted.

Whilst it may be that counsel did not appreciate the full significance of what is now revealed in the case of Ross, nonetheless, what they indicated clearly to me was that they accepted, at the relevant time before sentence, that the confiscation hearing was a fait accompli, that it would occur unless the Crown decided to withdraw the relevant notice.

A further point was taken that the learned judge does not indicate that he had adverted to the need for further information and, if he had failed to advert to the need for further information, then he had failed to exercise his discretion under section 72A in a lawful manner.

… it would, in fact, have been known to the judge, although not known to the defence counsel, that the police were making further inquiries in Thailand because that is a matter that was disclosed to the learned judge on 11 September on the special procedure application. This is a case in which it was perfectly clear to all concerned that further information was going to be required before the confiscation hearing could properly take place.

If it were necessary to decide it, I would say that, where it is that further information is required and nobody raises the point before sentence, it is sufficient for the judge to act on that mutual agreement of counsel at the Bar and upon his reading of the papers without having to say anything in open court about the extent to which he has enquired into the further information that is required."

26. Judge Eccles then went on to consider the submission of Mr Milliken-Smith for the second appellant that, when Judge Bray said on 15 September "I will do that", all the judge was agreeing to do was to adjourn consideration of an application by the Crown for confiscation orders to be made rather than indicating his decision in that respect. Judge Eccles observed:

"There was no live issue to be determined when Mr Groome rose to make his observations, other than the question whether confiscation proceedings would take place before sentence or have to be postponed until after sentence, and therefore in my judgment, the distinction which Mr Milliken-Smith seeks to draw between an application being adjourned and a determination being adjourned or postponed is, on the facts of this case, an unreal distinction. It was not one that was drawn by any counsel at the time or any of them until recently."

27. The judge completed his observations by saying:

"Section 72A provides a trap for the unwary advocate and for the busy judge. Without in any way detracting from the duty of the court to apply the statutory machinery in accordance with the decision of the Court of Appeal in Ross it seems to me there is no reason to over-elaborate the discussions and observations of counsel and judge by an excessive textual analysis of the words used, if, in fact, the judge has indicated a decision (which Judge Bray did) and everybody understood that decision to be that the determination was going to be postponed."

Conclusion

28. We have quoted the observations of Judge Eccles at length because in our view they are correct and we do not consider that they can be improved upon.
29. Judge Eccles considered that, on 15 September, Judge Bray had manifestly reached a decision, well understood and concurred in by counsel before sentencing took place, that the determination in the confiscation proceedings should be postponed to be dealt with after sentence. The exchanges on 18 September confirmed this position and set an appropriate timetable (c.f. Steven Davies). We agree.
30. For the reasons given by the judge, we find no merit in this appeal and it will be dismissed.