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Cite as: [2006] EWCA Crim 792

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		Neutral Citation Number: [2006] EWCA Crim 792
		Case No: 200200531 A3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MAIDSTONE CROWN COURT
(HIS HONOUR JUDGE SIMPSON)

Royal Courts of Justice
Strand, London, WC2A 2LL

5 April 2006

B e f o r e :

LORD JUSTICE RICHARDS
MR JUSTICE GRIGSON
and
THE RECORDER OF LIVERPOOL
(sitting as a Judge of the Court of Appeal Criminal Division)
____________________

Between:

	MOHAMMAD AKHTAR TAHIR	Appellant
	- and -
	THE QUEEN	Respondent

____________________

Kuldip Singh QC (instructed by Bark & Co) for the Appellant
Kennedy Talbot (instructed by The Solicitor to HM Revenue and Customs) for the Respondent
Hearing dates : 14-15 March 2006
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Richards :

On 16 February 2000, following a trial at Maidstone Crown Court before His Honour Judge Simpson and a jury, the appellant Mohammed Tahir ("Tahir") was convicted of conspiracy to contravene section 170(2)(b) of the Customs and Excise Management Act 1979 (count 1 on the indictment). The nature of the allegation was that he had conspired with others fraudulently to evade the duty chargeable on alcohol imported into the United Kingdom from France. On 2 March 2000 he was sentenced to 7 years' imprisonment and was ordered to pay £350,000 towards the prosecution costs.

On 20 December 2001, the judge made a confiscation order against him in the sum of £11,864,322, with 6 months to pay or a sentence of 7 years' imprisonment in default of payment. The judge also made an order that he pay £50,000 towards the prosecution's costs of the confiscation proceedings. In addition the judge ruled that the costs order made on 2 March 2000 was a nullity but made a fresh order that Tahir should pay £350,000 towards the prosecution's costs of the trial.

There were several co-defendants: Fida Hussein Rasool pleaded guilty to counts 1 to 4; Rasool's brother, Ghulan Abbas, was convicted on counts 1, 3 and 4; Edward Yorke was convicted on counts 2 and 3; Brian Patten was convicted on count 2; Peter Thompson was convicted on count 2; whilst Timothy Hooton and Richard Wood were both acquitted. All the counts were related.

Tahir now appeals against the confiscation order and the costs orders against him. Leave to appeal on certain grounds was granted by the single judge at an oral hearing on 1 October 2002. The full court granted leave on certain additional grounds at the hearing of a renewed application on 3 February 2005. At that time Mr William Clegg QC appeared pro bono on behalf of Tahir. Before us, however, Tahir was represented by Mr Kuldip Singh QC, who also appeared on his behalf at the confiscation hearing before the judge and who settled the original grounds of appeal. Mr Singh pursued the appeal on all the grounds on which leave had been granted. In addition, he sought to persuade us to grant leave on additional grounds, including two grounds that had been expressly abandoned by Mr Clegg when he appeared on the renewed application before the full court.

The Crown was represented before us by Mr Kennedy Talbot. Very sadly, his junior, Mr Martin Lickert, died a few days before the hearing. Out of all the counsel involved in the appeal, Mr Lickert was the only one who had also been at the trial.

Legislative framework

The applicable statutory regime is that contained in the Criminal Justice Act 1988, as amended by the Criminal Justice Act 1993 and the Proceeds of Crime Act 1995. All the references we give to the 1988 Act are to the Act as so amended.

Section 71 contains general provisions concerning the making of confiscation orders. It provides in subsection (1):

"(1) Where an offender is convicted, in any proceedings before the Crown 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."

Other subsections deal with the determination of benefit and of the amount in which a confiscation order is to be made.

Section 72(5) provides:

"(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, or

(b) making any order involving payment by him, other than [a compensation order] …

but subject to that shall leave the order out of account in determining the appropriate sentence or manner of dealing with him."

Section 72A deals with the postponement of confiscation proceedings and with the consequences of any such postponement. It provides in material part:

"(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,

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) 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) [Power to postpone where the defendant appeals against conviction]

(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.

…

(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 –

(a) subsection (1) of section 71 above shall have effect as if the words from 'before sentencing' onwards 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) … above."

Factual background

The case involved the evasion of excise duty on a massive scale. Goods, mainly beer and wine, were imported from France for onward sale in the United Kingdom. Count 1 involved a conspiracy between the appellant, Abbas and Rasool during the period 1 January 1997 to 8 May 1998.

According to the Crown, Tahir was at the top of the organisation, controlling the French side of the operation. There was a business in Calais known as King Wines ("Kings") and then, from mid 1997, Moon Cash and Carry ("Moons"). It was alleged that Tahir owned and controlled Kings and Moons, though he kept in the background. Rasool ran the operation in the United Kingdom and worked with Abbas. Yorke ran the Kent end of things, organising the drivers (Patten and Thompson). Goods were collected from Calais and were brought to Dover without payment of duty. They were stored at a warehouse and were then sold and despatched to other cash and carry outlets around the country. Invoices were raised on bogus companies set up by Rasool to give the appearance that the goods had a legitimate origin in the United Kingdom. When the proceeds of sale were received, payments were made to Kings or Moons (as the case may be).

On 14 April 1999 Tahir was arrested at his house in Surrey. Over £90,000 in cash was found in carrier bags. Relying on references in Rasool's cash books (seized from the office of Rasool and Abbas on their arrest) to "T" or "Mr T" as being references to Tahir, and as indicating that large sums of money had been paid to him, the prosecution alleged that the £90,000 was part of the proceeds of the fraud. In a briefcase were found bank statements from Pakistan showing very large credit balances, together with other relevant documentation. This led to the contention that Tahir had disguised control over bank accounts in Pakistan.

The proceedings

On 2 September 1999, prior to the trial, a restraint order was made and a receiver was appointed in respect of Tahir. Orders were made to preserve assets in the event of conviction and subsequent confiscation proceedings.

On 6 September 1999, Rasool pleaded guilty and the trial of the others, including Tahir, began. On 16 February 2000 verdicts were reached in respect of all the defendants except Thompson and Wood. The following day, 17 February, verdicts were reached in respect of the remaining defendants and there were discussions in court about confiscation proceedings and sentencing. It will be necessary to look in some detail at those discussions when considering the grounds of appeal.

On 2 March 2000, Tahir and others were sentenced. Again it will be necessary to refer in due course to what was said at that hearing.

On 16 June 2000 the confiscation proceedings were listed for mention. The court ordered a section 73 statement to be served on Tahir by 30 June. A statement was in fact served on 28 June. On 30 June 2000 the court heard and rejected submissions as to the validity of the confiscation proceedings.

On 28 July 2000 the confiscation proceedings were postponed to 31 January 2001, the judge holding that there were exceptional circumstances to justify the postponement. The hearing was fixed for 8 January 2001, but was subsequently adjourned on a number of occasions at Tahir's request, for reasons that included late service of a substantial amount of material by Rasool, difficulty in obtaining evidence from Pakistan and the fact that Mr Singh and his junior came into the case at a relatively late stage.

The confiscation hearing eventually took place between 19 October and 20 December 2001, when the judge gave his ruling and made the confiscation order.

We have referred already to the subsequent application for leave to appeal, including the renewed application before the full court.

The decisions in Soneji and Knights

Grounds 2-5 all raise issues as to compliance with the procedural requirements for the making of confiscation orders. Before examining the specific issues, it is helpful to refer to the principles laid down by the House of Lords in R v Soneji [2005] UKHL 49, [2005] 3 WLR 303 and R v Knights [2005] UKHL 50, [2005] 3 WLR 330. The decisions in those cases post-dated the grant of leave in the present case and have an important bearing on the issues raised. Both cases were concerned with the 1988 Act as amended and with the consequences of non-compliance with the procedural requirements laid down by that Act for the making of confiscation orders. They were heard consecutively by the same committee.

In Soneji the Court of Appeal had held that the failure of the first instance judge to consider or make any finding as to the existence of exceptional circumstances to justify a postponement under section 72A had deprived him of any jurisdiction to make a confiscation order. The House of Lords allowed the Crown's appeal. The principles laid down are summarised as follows in the headnote at [2005] 3 WLR 303G-304A:

"… that the correct approach to an alleged failure to comply with a provision prescribing the doing of some act before a power was exercised was to ask whether it was a purpose of the legislature that an act done in breach of that provision would be invalid; that since section 71(1)of the 1988 Act as amended imposed a duty on the court when an offender had been convicted to consider confiscation proceedings, with the purpose of the sequence of such proceedings as required by section 71(1) and the postponement power under section 72A, which precluded any common law power of adjournment, being to make the sentencing process rather than the confiscation procedure as effective as possible; that the judge's failure to adhere to the requirements of section 72A(3) had caused no prejudice to the defendants in respect of their sentences and any other prejudice caused by the delay was outweighed by the public interest in not allowing convicted offenders to escape confiscation for bona fide errors in the judicial process; and that, accordingly, any failure would not have been intended by Parliament to invalidate the confiscation proceedings …."

Those principles were applied in Knights, in which it was contended by the appellant that the judge's initial failure to specify the precise period of the postponement had rendered the proceedings invalid. The House of Lords did not accept that the extent of the judge's non-compliance with section 72A was as great as contended by the appellant, but held in any event that a failure to specify any return date at all when postponing confiscation proceedings would not invalidate a subsequent confiscation order:

"Provided only that in postponing the proceedings the judge had acted in good faith and in the purported exercise of his section 72A power, I cannot think that Parliament would have intended such an error to disable the court from discharging its statutory duty to complete the confiscation proceedings against the offender" (per Lord Brown of Eaton-under-Heywood at para 22).

With that introduction we turn to consider the grounds of appeal on which leave has been granted or is now sought in the present case.

Ground 2: notice under section 71(1)(a)

The issue raised by ground 2 is whether the prosecution gave written notice to the court in accordance with section 71(1)(a) so as to engage the duty of the court to act as set out in section 71.

The prosecution contends that such notice was given in a letter dated 17 February 2000 which was served on Tahir and on the court that day. The letter purports to be from Maureen Dunn, Special Casework Division, HM Customs and Excise, and to be signed on her behalf. It has no named addressee, but reads:

"Dear Sir,

Re: Mohammed Akhtar Tahir

Take notice that we intend to start confiscation proceedings under Section 71(1)(a) Criminal Justice Act 1988, as amended by the Proceeds of Crime Act 1995, in relation to the above defendant who was convicted on 16 February 2000 on Count 1.

Should it be necessary to apply for an extension of time before the proposed proceedings begin, we will apply to the Crown Court and put you on notice of the same."

The appellant's primary case is that that letter was not served on the court as required by section 71(1)(a). Indeed, it is not accepted that the letter was served at the time even on the appellant or his legal representatives (though such service is not required by the statute). It is said that the letter was first provided to the appellant in correspondence after the conclusion of the confiscation proceedings.

Unfortunately it has been impossible to locate part of the relevant Crown Court file, so that the resolution of this issue has to depend upon an assessment of other material.

In our judgment there is ample evidence that the letter was served on the court at the time. There are two passages in the transcript of 17 February 2000 (pp.27E and 36D-E) where the judge referred to notices having been served. Looking at those passages in context, and especially the second of them, we take the view that they related to Tahir as well as to other defendants and that the judge was referring not just to service on the defendants themselves but to service on the court. He stated specifically at p.36D: "I think I saw, amongst some documents this morning, a notification in relation to a number of defendants as to possible confiscation proceedings".

At the sentencing hearing on 2 March 2000, Mr Lickert, junior counsel for the prosecution, told the court: "Everyone who was convicted on 16th and 17th February [was] served with a notice" (p.17). Counsel for the defendants, including Tahir, were in court but no-one questioned the statement. If there had been any doubt about whether the court had also been served with such notices, counsel and the judge himself would have been expected to raise the point.

So, too, at subsequent hearings and in the written submissions prepared for those hearings there are references to service of the notices. In particular, at the hearing on 30 June 2000, the judge rejected an argument advanced primarily on behalf of Rasool and Abbas that proceedings were not properly instituted by service of notice in the form of the letter of 17 February. The whole argument was predicated on an acceptance that the letters had been served: the nature of the submissions was that letters in that form did not constitute valid notices. Counsel for Abbas said that at the end of the trial:

"letters, the only variation being the name of the person re whoever, were handed out … 'like confetti' that day. They were handed out to every defendant who was convicted …. [T]hey were literally being constructed outside court" (pp.68D-69A).

Far from taking issue with any of this, counsel for Tahir (who had also been his junior counsel at the trial) adopted the submissions of counsel for Abbas (p.77A).

Mr Singh was driven to submit that Tahir and his representatives were unaware of the true position and that they and the court itself were misled by false claims by the prosecution that written notice had been served on the court at the appropriate time, which resulted in the court ruling on 30 June 2000 that the statutory provisions concerning such a notice had been complied with. In our view there is no substance whatsoever in that submission. The plain reality of the matter is that everybody proceeded as they did because they knew that the letter had been served.

A note drafted by Mr Lickert a few days before his untimely death provides clear-cut confirmation of the conclusion that we have derived from the contemporaneous material. Mr Lickert's note states (paras 7-8):

"After the verdicts were announced on 16^th February 2000, I spoke on 17^th February with Richard Napper, one of the financial officers present at court. I asked him if there was any pro forma section 71 notice that he knew of. He did not [know] of such a document, and we decided to ring Maureen Dunn at HMC&E solicitors office to find out if there was any specific wording that needed to be used. She was out of the office that day. Mr Napper then spoke to a solicitor called Colin Jones from the Asset Forfeiture Unit. He did not know of any pro forma.

Accordingly, Mr Napper and I sat down in the room next to Court 6 and using Archbold, drafted out the notices as best we could, using one of the laptop computers and the printer. Notices were drafted in respect of Tahir, Abbas and Yorke, and served on the representatives of Tahir, Abbas and Yorke that day. Copies were also served on the court. To the best of my recollection, the clerk of the court that day was Mrs Davies, although I cannot be sure it was her. What I can be sure of is that Mr Napper and I drafted the section 71 notices and that I personally served them."

Mr Lickert's note was not written as a witness statement and was not formally admitted into evidence, but Mr Singh very properly accepted Mr Lickert's bona fides and did not dispute that the note represented Mr Lickert's honest recollection of what happened. He submitted, however, that it was a mistaken recollection. Taking us through passages in various written and oral submissions by Mr Lickert in the intervening years, he suggested that they were inconsistent with, or did not support, the contents of Mr Lickert's note and that Mr Lickert must have failed to refresh his memory by reference to such material and had in consequence misremembered the true position. We have no hesitation in rejecting that line of argument. Mr Lickert's note is clear and precise, both in its description of the way in which the letters were drafted and in its assertion that he personally served them on the defendants' representatives and on the court. It accords with the contemporaneous material and, as we have said, confirms the position as revealed by that material. It is also consistent with the explanation given by HM Customs and Excise to Tahir himself in a letter dated 2 February 2005 (though it is right to note that Tahir denies ever having received that letter prior to the production of a copy at the hearing before us).

Mr Singh had a subsidiary submission that even if the letter of 17 February 2000 was served on the court, it did not amount to a written notice within section 71(1)(a) because it was no more than a statement of intention to start proceedings and it did not state, in the language of the statutory provision, that the prosecution considered that it would be appropriate for the court to proceed under section 71. He conceded, however, on the basis of the principles in Soneji and Knights and the decision of the Court of Appeal in Sekhon [2003] 1 WLR 1655 that this defect would not in itself invalidate the confiscation order. That concession was plainly correct, but it is unnecessary to rely on the point since we are satisfied in any event that the letter amounted to a sufficient notice within section 71(1)(a).

Even if we had concluded that the letter of 17 February 2000 had not been served on the court as required by section 71(1)(a), that would not have been fatal to the validity of the confiscation order. It seems to us, applying the principles in Soneji, that Parliament cannot have intended such a defect to render the confiscation order invalid in the circumstances of this case. A similar approach was applied in Rogers [2005] EWCA 3659, at paras 20-21.

A further line of argument that Mr Singh sought to pursue was that the conduct of the Crown in relation to the notice amounted to an abuse of process. This contention was not included in the grounds of appeal, and at the hearing we refused leave for the grounds to be amended for the point to be pursued. Our reasons for refusing leave are briefly as follows.

The contention had two aspects to it. First, it was alleged that the prosecution falsely claimed in the proceedings below that written notice had been served at the appropriate time on the court, and thereby misled the court, Tahir and his legal advisers. This point falls away in the light of our finding that written notice was duly served, but it was unarguable in any event. There is nothing to support the view that what occurred was done otherwise than in good faith or that it caused any prejudice to Tahir.

Secondly, it was said to have been an abuse to draft the letter in the name of Maureen Dunn when, as shown by Mr Lickert's note, she was away at the time and had no knowledge of it. On a point of detail, the letter of 2 February 2005 from HM Customs and Excise to Tahir states that Maureen Dunn had been consulted about the notice prior to its issue; and nothing in Mr Lickert's note is inconsistent with that statement, albeit that Mrs Dunn was away on the day when the notice was actually drafted. More generally, it is clear from Mr Lickert's note and from the wider context that the notice was drafted and served with the knowledge and agreement of the Customs officers in the case. There is nothing to support the contention that it was served without authority.

Ground 3: judicial decision under section 71(1)(b)

Ground 3 would have been relevant only if we had found that the prosecution failed to serve a written notice on the court under section 71(1)(a): it raised the question whether the judge himself reached any decision under section 71(1)(b) that it was appropriate to proceed under the section, thereby providing an alternative trigger to the duty of the court to act in accordance with that section. In the circumstances we need say no more about it.

Ground 4: postponement under section 72A

This is the ground that Mr Singh put at the forefront of his case. The issue is whether the court lawfully exercised the power under section 72A to postpone the confiscation proceedings where the court considers that further information is required before making confiscation determinations; and, if not, whether that invalidated the confiscation proceedings and in particular the confiscation order eventually made.

Mr Singh's submissions may be summarised as follows:

i) The judge failed to comply with the provisions of section 72A(1) and (7) by failing before sentence to make an order postponing the relevant determinations and confiscation proceedings until after sentence. The effect of an unbroken line of authority from R v Kelly [2000] 2 Cr App R (S) 129 to R v Sekhon [2003] 1 WLR 1655, where the earlier cases were considered in detail, is that there must be a judicial decision, "however generally expressed" (Sekhon, para 56), to postpone proceedings; such a decision must be taken before the court proceeds to sentence or otherwise deal with the defendant in respect of the offence concerned; and in the absence of a decision to postpone until after sentence, the court has no jurisdiction to make a confiscation order thereafter.

ii) On this point Soneji did not overrule or cast any doubt on Sekhon or the line of authorities leading to Sekhon. The House of Lords in Soneji was not dealing with a failure to make a decision to postpone until after sentence, and the principles laid down do not govern the situation. Similarly, Knights concerned a failure to specify the period of postponement and a judge's purported exercise of his section 72A power, rather than the absence of a decision to postpone.

iii) In any event Parliament must have intended that a failure to make a decision to postpone until after sentence would invalidate any subsequent confiscation order. It is a fundamental principle of sentencing that a court should not increase a sentence once imposed. In enacting the power to postpone under section 72A as an exception to that fundamental principle, Parliament must be taken to have required compliance with the statutory provisions giving the court such a power. In support of that submission Mr Singh also referred to the confiscation regime introduced by the Proceeds of Crime Act 2002, in particular sections 14(11)-(12) and 15.

iv) On the facts of this case, at no time before sentence was passed on 2 March 2003 did the prosecution make an application to postpone or the judge make a decision to postpone the confiscation proceedings in respect of Tahir or any of the defendants other than Rasool. On 2 March the prosecution may have misled themselves into thinking that the judge had made such a decision, and the judge was innocently misled by that erroneous belief or his own erroneous belief that such a decision had been made. This, in turn, misled Tahir's counsel into the erroneous belief that a decision to postpone had been made, and to address the court in mitigation on that erroneous basis. Neither Tahir nor his counsel had been in court at the material time on 17 February 2000, with the consequence that they were unable to gainsay what was being said by the prosecution or the judge about a previous decision on postponement.

v) A belief or assumption on the part of counsel or even the judge cannot affect the legal position. A postponement under section 72A(1) "is constituted, and only constituted, by a judicial decision [and] unless there is something wholly exceptional that must be taken and done in open court and reasons there given for it" (Kelly, p.137). A positive judicial decision is needed. There was no such decision here.

vi) Accordingly the court had no jurisdiction to make the confiscation order.

Mr Talbot, for the Crown, sought to meet that line of argument by the following submissions:

i) The clear position on the facts of this case is that the judge made manifest his intention to sentence first and to deal later with confiscation, and he did so in purported exercise of his powers under section 72A. Further, this was done with the acquiescence of counsel, including counsel for Tahir, who at no time suggested any other course.

ii) What the court must do in order to postpone its determination in compliance with section 72A is to make manifest its intention to sentence first and to deal later with confiscation. Support for this approach is to be found in R v Haisman [2004] 1 Cr App R (S) 383, which concerned an appeal based on an alleged failure by the judge to take a judicial decision to postpone confiscation proceedings. Reference was made at para 24 to R v McCready [2003] EWCA Crim 2002, in which it had been said that the decision to postpone must be made before sentence is passed and must be made "obvious" or "manifest" but does not have to be announced or articulated before sentence is passed. The court in Haisman accepted that approach and concluded on the facts that the judge "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" (para 29). Accordingly the court dismissed the appeal.

iii) In any event the case falls within the statement of principle in Soneji para 80, echoed in Knights para 22, that "[p]rovided always that the court … was acting in good faith in the purported exercise of its s.72A power to postpone the confiscation proceedings its subsequent determinations will not be invalidated despite its having proceeded first to sentence and only later to the making of a confiscation order". Alternatively the case falls within the scope of the wider reasoning in Soneji: if what happened in the circumstances of this case did not amount to compliance with section 72A, Parliament cannot have intended such non-compliance to invalidate the confiscation order.

We were taken at length by counsel through the transcripts of the relevant hearings. It is not necessary to repeat the exercise at the same length in this judgment. It suffices to refer to a few passages and to indicate the conclusions we have reached.

The issue of postponement was canvassed on 17 February 2000. The early part of the discussion on that day was concerned specifically with Rasool, in relation to whom the judge made an order postponing the confiscation proceedings to 30 June 2000. Even during that discussion, however, it was tolerably clear that the judge had in contemplation a postponement in respect of Abbas and Tahir as well; and it is a fair inference that, if Tahir's counsel were not in court at this time (one cannot be certain from the transcript), they were consulted about, and were therefore aware of, the position when the court adjourned to allow prosecuting counsel to take instructions about dates.

It is not in dispute that Tahir and his counsel were in court a little later on the same day, when further discussion took place about the date for sentencing. Having indicated that he proposed to fix sentence for 2 March 2000, with 3 March available if necessary, the judge said to prosecuting counsel:

"[T]he question of any confiscation matters has, in a sense, already been dealt with insofar as it can be. Notice of intention has been served. I do not think that there is anything probably that can usefully be done with regard to that on either the 2^nd or 3^rd as it will be too soon" (p.27).

In our view that observation was intended to apply to Tahir as much as to any other defendant (which chimes with our conclusion, set out above, that written notice had already been served in relation to Tahir). Thus the judge was making manifest his intention to sentence Tahir first and to deal with confiscation in respect of Tahir at a later date, and that is how it must have been understood by all concerned. The later exchanges on the same day (pp.36-37) about service of section 73 statements by the prosecution underlined the point: again, the judge was plainly intending to adopt a timetable for the confiscation proceedings that followed on from sentencing on 2 March.

What happened on 2 March provides strong support for the view that the judge had already made a decision to postpone the confiscation proceedings. During the opening of the facts, which was necessary because Rasool had pleaded guilty, prosecuting counsel (at pp.16-17) stated that a confiscation hearing had been fixed for 30 June, all those convicted had been served with a notice and investigations were continuing. The judge (at p.20) subsequently confirmed the 30 June date. Nobody demurred. Then, at the start of counsel's mitigation on behalf of Tahir, the judge referred to section 72A, including the provision in subsection (7) that a court may proceed to sentence where it exercises the power to postpone under subsection (1). Counsel observed that the law was well settled, and continued (at p.3):

"I don't think there is any argument on it. It has been dealt with previously between your Honour and counsel a fortnight ago, that sentence would be proceeded with today, confiscation at a date to be fixed".

Counsel proceeded to mitigate on the basis that Tahir would be subject to confiscation proceedings in the future. It is to be noted that this was the same counsel as had represented Tahir on 17 February. In our judgment, what she said was the clearest acknowledgement of the fact that a decision to postpone had been made on 17 February. The contention that she was in some way misled by prosecuting counsel or the judge into an erroneous belief that a decision had been made is unsustainable.

In the course of passing sentence the judge once more made the position clear. In his remarks to Tahir, and before going on to impose a custodial sentence, he said (at pp.5-6):

"Were it not for the provisions of section 72A(9)(a) of the Criminal Justice Act 1988, which restricts the power of the Court to impose a fine whilst confiscation proceedings are pending, I should today impose a substantial fine upon you as well as a custodial sentence. As it is, that power is postponed to be considered and if appropriate exercised after the conclusion of the confiscation proceedings …".

We do not need to refer specifically to the transcripts of the later hearings, but they are consistent with the picture that emerges from the hearings to which we have referred.

In the light of all that material we are satisfied that the judge did reach a decision, before sentencing Tahir, to postpone the confiscation proceedings until a later date. It is clear from cases such as Haisman and to Sekhon that the decision does not have to be in any particular form and can be expressed in general terms. Where, as here, the judge made manifest, and it was well understood and concurred in by counsel, that confiscation was to be dealt with after sentencing, we do not think that the existence of a decision to postpone can be in doubt. That conclusion is not affected by the fact that the decision was not recorded in the Crown Court file.

Moreover, since it is clear that the judge, acting in good faith, was purporting to exercise his powers under section 72A in proceeding to sentence Tahir before dealing with confiscation, it seems to us that, on the basis of Soneji and Knights, the confiscation order would not be invalidated even if what occurred prior to sentencing did not amount strictly to a decision to postpone in compliance with section 72A. We reject Mr Singh's contention that Sekhon and the line of authorities leading to it are unaffected by Soneji and Knights. Although Soneji concerned a specific procedural defect, the reasoning of the House of Lords went much wider and their Lordships plainly intended to lay down principles of general application to confiscation proceedings. Those principles were then applied in Knights in relation to a different procedural defect. The same principles are applicable here. We should make clear that in reaching that conclusion we have taken into account, in addition to the skeleton arguments and the submissions at the hearing, written submissions filed by Mr Singh by way of supplementary reply after the hearing.

We stress that on no view is this a case of complete failure to address the issue of postponement. On the contrary, it was addressed, and even if we had found that it was not addressed in strict compliance with section 72A the fact is that everybody concerned proceeded on the clear understanding that confiscation was to be postponed under that section, everything was done in good faith, and there was in our view no resulting prejudice to Tahir. In our judgment there is no reason why Parliament should have intended the confiscation order to be invalidated in circumstances such as these.

Ground 5: exceptional circumstances

On 28 July 2000 the prosecution applied under section 72A for the confiscation proceedings in respect of Tahir to be further postponed to a date beyond 16 August 2000 and therefore to a date more than six months after his conviction. The application was opposed. The judge ruled that there were exceptional circumstances within section 72A(3) which justified the further postponement sought. The case for the appellant is that the judge was wrong so to rule. It is accepted that that would not of itself automatically deprive the court of jurisdiction to make a confiscation order (see Soneji), but the point is relied on in respect of a wider argument as to abuse of process to which we refer later in this judgment.

In his ruling the J said (at p.36):

"I take the view that this is a case of considerable complexity. There is a very considerable amount of duty – some £20 million in all – it is said in issue here; not that that is the figure likely to be the subject of confiscation as such on the information before me …. In the circumstances, I am fully satisfied that there are exceptional circumstances here which fully justify the Court in postponing the making of the determinations …."

Mr Singh submitted that the one factor relied on by the judge in that passage had already been considered in the trial, where the relevant documentation had been put in evidence. He submitted more generally that a finding of exceptional circumstances could not be justified in circumstances where the prosecuting authorities had been investigating the case since at least 1997 or early 1998, there had been a very lengthy trial, and the relevant postponement would mean confiscation proceedings taking place some 3-4 years after the offence and about a year after conviction.

In our judgment there is no substance in those submissions. The statutory provision as to "exceptional circumstances" should not be construed very strictly (see Soneji, paras 28 and 33). Nor should the judge's ruling be interpreted too strictly: although he picked out one particular factor, he was in our view looking at the circumstances of the case as a whole in reaching his decision that exceptional circumstances existed. Having regard to the nature and complexity of the case, it was open to him to reach the conclusion he did. Subsequent events proved the wisdom of the decision, in that the appellant himself subsequently made repeated applications for more time to prepare for the hearing.

Ground 6: sufficiency of evidence

The contention in ground 6 is that there were various matters in dispute in the confiscation proceedings that had not been the subject of evidence at the trial or of any finding of fact at trial and were not decided by the jury's verdict; yet the prosecution called no evidence in the confiscation proceedings to prove its case on those matters. It is therefore submitted that the judge was wrong to rely on such matters in his ruling on confiscation. Matters in dispute are said to have included the amount of Tahir's benefit, the amount of his assets, the ownership and value of assets in Pakistan, and the ownership of assets in England.

The single judge refused leave to appeal on this ground. At the renewed application for leave before the full court, leading counsel then appearing for Tahir expressly abandoned the point, on the basis that in the light of recent authority the proposition advanced in the ground was unarguable. Mr Singh nonetheless sought to revive the ground before us. We refused leave for it to be argued. Our reasons for doing so are briefly as follows.

First, it would require highly exceptional circumstances to persuade the court hearing a substantive appeal to entertain a ground of appeal that had previously been abandoned on a renewed leave application to the full court. The circumstances of this case get nowhere near that threshold. At the renewal stage a considered decision was taken by counsel to abandon the ground. It was a decision no doubt based on R v Silcock and Levin [2004] 2 Cr App R (S) 323, where it was held that the ordinary rules of criminal evidence do not apply to a confiscation hearing and that the judge is entitled to rely on documentary material placed before him. No possible justification has been advanced for allowing a departure from that considered decision. Certainly none is provided by the fact that there has been a change of counsel and that Mr Singh, who now represents Tahir, would not himself have abandoned the ground.

In any event we are wholly unpersuaded of the existence of any arguable case that the judge's findings were not open to him on the material to which he was entitled to have regard. Mr Singh's submissions were advanced at a high level of generality and did not begin to show the lack of sufficient evidential support for any individual finding made by the judge.

Ground 11: cash paid to Akhtar

One aspect of the prosecution case, based on entries in Rasool's cash books which were seized on his arrest and were said to be a contemporaneous record of payments made by him, was that Rasool made cash payments to Tahir in a total sum of £590,000. The judge took that figure into account when computing the amount of Tahir's benefit. The contention advanced in ground 11 is that Rasool's cash books show that three of the sums, amounting in total to £130,000, were in fact paid to a man called Akhtar and not to Tahir. It is said that, since the prosecution case was based in this respect only on the cash books, the sums in question could not be treated as monies obtained by Tahir, and the judge therefore erred in taking them into account as he did. This component of Tahir's benefit figure should therefore be reduced by £130,000.

The prosecution response is that there was overwhelming evidence that Akhtar was merely a nominee of Tahir. A brief but convincing survey of that evidence was provided in Mr Talbot's skeleton argument. We do not need to dwell on it, however, since Mr Singh did not take issue with the proposition that Akhtar was shown to be a nominee. He put his case on the basis that section 71(4) provides that "a person benefits from an offence if he obtains property as a result of or in connection with its commission" (emphasis added), and he submitted that Tahir did not himself "obtain" the monies paid to Akhtar as his nominee.

In our judgment that submission is plainly wrong. Section 71(4) is wide enough to cover property obtained by a person through an agent or nominee. To hold otherwise, as Mr Talbot observed, would drive a coach and horses through the legislation. A broad approach to the meaning of "obtain" in the context of confiscation proceedings is also supported by Jennings v Crown Prosecution Service [2005] EWCA Civ 746. Mr Singh himself was driven to concede that a person "obtains" money when that money is paid into his bank account; but that concession is inconsistent with, and illustrates the error in, his main submission.

We therefore conclude that the judge was entitled to treat the £130,000 as money obtained by Tahir.

Ground 12: assets in Pakistan

Ground 12 as set out in the written grounds raises issues concerning very large sums of money, amounting in total to some £13.3 million, which were found in various bank accounts in Pakistan and were held by the judge to form part of Tahir's realisable assets. It is contended that the judge's approach to the relevant evidence, and his findings and decisions in relation to it, were wrong, flawed, illogical, unfair and irrational.

The case so advanced, however, is not one in respect of which Tahir has leave to appeal. The single judge refused leave on the entirety of ground 12. The full court, on the renewed application, granted leave on only two limited points and made clear that leave was not granted in respect of any of the other points in ground 12. Counsel then appearing for Tahir had effectively abandoned those other points. Yet Mr Singh sought to revive them before us, asking us to grant leave notwithstanding what happened previously on the renewed application.

We have already made clear, in the context of ground 6, our view that it would require highly exceptional circumstances to persuade the court hearing a substantive appeal to entertain a ground of appeal that had previously been abandoned on a renewed leave application. In relation to ground 12, as in relation to ground 6, we are satisfied that the circumstances get nowhere near justifying such a course and that the further application for leave must be refused.

Mr Singh took us through various documents in order to indicate the nature of the evidence that was before the judge in the confiscation proceedings in relation to the assets in Pakistan. Such evidence went beyond the evidence at the trial. There were two broad aspects to it.

The first concerned quantification of the assets in Pakistan. Mr Sim, a forensic accountant instructed by the defence, produced a number of reports which had the effect of causing the prosecution to revise their calculations downwards by a very substantial amount; but it was submitted that substantial further reductions ought to be made.

In relation to this aspect of the matter, the judge said in his ruling of 20 December 2001 (pp.43-44):

"In my view, some of the conclusions reached by Mr Sim, but not all of them, are based upon various hypotheses of a somewhat speculative nature whereby he managed to conclude that there might be a basis, or a series of bases, for deciding that certain figures had been double counted by Mr Napper and if one were prepared to accept those hypotheses, then the prosecution figure in regard to the Pakistan assets of Mr Tahir should be reduced to the sum of £9,903,666. I, however, am not so prepared and accordingly such a reduction will not be made beyond what the prosecution [conceded] and already incorporated in their closing submissions."

Mr Singh criticised that passage on the basis that the judge did not say that he had revisited the prosecution case and had reached specific conclusions in relation to the matters in issue. The judge ought to have found that Mr Sim's analysis raised a sufficient doubt to warrant the further deduction contended for.

We are not persuaded that there was any error of approach by the judge or that he erred in declining to make the additional adjustments put forward by Mr Sims. The burden of proof lay on Tahir (see R v Barwick [2001] 1 Cr App R (S) 445). The judge was entitled to find that he had failed to discharge that burden in relation to the sums in issue. We deal later with one specific issue of alleged double counting that formed the subject of separate argument.

The second, and more important, aspect of the evidence concerned beneficial ownership of the assets in Pakistan. The defence argued that the maximum amount derived from the fraud and which could have been exported to Pakistan was £1.5 million, and that as a matter of common sense it was therefore highly unlikely that Tahir would have earned the sum of over £13 million that the prosecution alleged to be contained in the Pakistan bank accounts. In addition, the defence provided documentary evidence in support of the contention that the monies in the bank accounts were owned by persons other than Tahir. Many of the accounts were said to be owned by a Mr Mohammad Azhar, who provided a supporting witness statement. There was also a witness statement from a Mr Farrukh Waheed explaining away Tahir's apparent involvement with certain bank accounts and financial transactions. Neither Mr Azhar nor Mr Waheed was willing to leave Pakistan to give evidence. Both relied on the security situation and other reasons for an unwillingness to travel.

In his ruling on 20 December 2001 the judge said this (at pp.43-44):

"Nothing that I have read or heard during these confiscation proceedings has served to alter my original view of the matter, notwithstanding the further evidence called in these proceedings, which was not adduced during the trial, in an attempt to alter the position on behalf of Tahir. That further evidence includes statements taken in Pakistan, one of which was not in a previous form admitted into the trial for good and valid reasons in my judgment – that is one namely by Azhar – but which have been admitted in these proceedings due to the very different circumstances now prevailing in Pakistan.

In my judgment, they represent another aspect of attempts to provide an explanation for Tahir's possession of documents which I overall reject as palpably untrue."