Friday, 22nd October 2004
B e f o r e :
(LORD JUSTICE ROSE)
MR JUSTICE RICHARDS
MR JUSTICE BEAN
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MR R D'CRUZ appeared on behalf of the CROWN
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"Section 1 above shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence which was committed before the commencement of that Section."
If section 1 of the 1995 Act did not apply in the present case, it would follow that confiscation proceedings could only have been brought under the earlier statute.
"Section 1 above shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence in respect of which a confiscation order is or could be sought, which was committed before the commencement of that section."
The words "in respect of which a confiscation order is or could be sought" were apparently suggested by Mr David Barnard, counsel for the prosecution, in his skeleton argument. No confiscation order was apparently sought, or at least made, in respect of count 6. But so far as we can see a confiscation order could have been sought in respect of that count since that was simply one of a number of VAT offences before the court (see paragraph 2 of the judgment).
"28 ...we suggest that it would not have been the intention of Parliament to exclude the jurisdiction of the court in relation to the making of confiscation orders because of procedural defects of a technical nature that caused no injustice to the defendant. In this context it is interesting to note that certainly this is not Parliament's intention now. The most recent legislation in this area is the Proceeds of Crime Act 2002. Section 14(11) of that Act provides: 'A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement.'
29 We would expect a procedural failure only to result in a lack of jurisdiction if this was necessary to ensure that 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."