England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NEWCASTLE UPON TYNE
HIS HONOUR JUDGE JOHN EVANS

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/05/2010

The Lord Chief Justice of England and Wales:

1. This is an appeal by the Crown Prosecution Service (CPS) under section 31(2) of the Proceeds of Crime Act 2002 ("the 2002 Act") against the decision of His Honour Judge John Evans, sitting in the Crown Court at Newcastle-upon-Tyne on 4^th January 2010, that the court lacked jurisdiction to continue confiscation proceedings against James Neish.
2. Neish pleaded guilty to offences relating to the supply of drugs. He was sentenced on 12^th June 2009.  On that date the judge postponed the confiscation proceedings and set a timetable for the service of the appropriate documents. The postponement was subsequently extended until the substantive confiscation proceedings were listed for hearing on 11^th December 2009. At this stage no issue arose as to the validity of the confiscation proceedings and if the hearing had taken place, as planned, on 11^th December, the jurisdiction of the court would not have been questioned. 
3. What happened was that on the evening of 2^nd December 2009 the judge unexpectedly learned that on 11^th December he would be committed to other public duties and therefore unable to sit and conduct the confiscation proceedings.  Next day, he instructed the listing officer to remove the case from the list for 11^th December and to relist it before him on a date convenient to both advocates.
4. On 4^th December, after making appropriate enquiries, but without further discussing the matter with the judge, the listing officer re-listed the hearing for 4^th January 2010.  The process was completed before 11^th December, and therefore before the expiration of the existing postponement period.
5. In accordance with these arrangements the case came on before Judge Evans on 4^th January 2010.  Mr Bloomfield, having elicited the history of these events from the judge, took the point that there had been no valid postponement beyond 11^th December 2009 and that accordingly the judge lacked jurisdiction to proceed with the confiscation hearing.  We have read the full transcript of the submissions. Mr Bloomfield's argument was that there had to be a judicial decision to postpone "for a specified period" and that no such decision had been made.  After some discussion, it effectively became common ground that the argument was well founded.  The judge did not give a full reasoned ruling.  He took full responsibility for the error which he believed had the effect of depriving him of jurisdiction to continue with the confiscation proceedings and was therefore fatal to them.  His decision constituted a refusal against which an appeal to this court lies.
6. After the hearing Mr Liddle considered the matter in more detail, and on 29 January 2010 applied for leave to appeal.  He submitted in writing that what occurred was in reality a postponement for the purposes of section 14(1)(b) of the Proceeds of Crime Act 2002 and therefore that the court was not deprived of jurisdiction.  He advanced the wider point, based on the decisions of the House of Lords in R v Soneji [2006] 1 AC 340 and R v Knights [2006] 1 AC 368, that even if there had been no postponement in strict accordance with section 14(1)(b) of the 2002 Act the court would not be deprived of jurisdiction.
7. These grounds were clearly arguable, and early in the hearing leave to appeal was granted.
8. Section 14 of the 2005 Act provides:

"(1) The court may –

(a) proceed under section 6 before it sentences the defendant for the offence (or any of the offences) concerned, or

(b) postpone proceedings under section 6 for a specified period.

(2) A period of postponement may be extended.

(3) A period of postponement (including one as extended) must not end after the permitted period ends.

(4) But subsection (3) does not apply if there are exceptional circumstances.

(5) The permitted period is the period of two years starting with the date of conviction.

(6) But if-

(a) the defendant appeals against his conviction for the offence (or any of the offences) concerned, and

(b) the period of three months (starting with the day when the appeal is determined or otherwise disposed of) ends after the period found under subsection (5), the permitted period is that period of three months.

(7) A postponement or extension may be made –

(a) on application by the defendant;

(b) on application by the prosecutor;

(c) by the court of its own motion.

(8) If –

(a) proceedings are postponed for a period, and

(b) an application to extend the period is made before it ends,

The application may be granted even after the period ends.

(9) The date of conviction is –

(a) the date on which the defendant was convicted of the offence concerned, or

(b) if there are two or more offences and the convictions were on different dates, the date of the latest.

(10) References to appealing include references to applying under section 111 of the Magistrates' Courts Act 1980 (statement of case).

(11) 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.

(2) But subsection (11) does not apply if before it made the confiscation order the court –

(a) imposed a fine on the defendant;

(b) made an order falling within section 13(3);

(c) made an order under section 130 of the Sentencing Act (compensation orders)."

9.  Mr Bloomfield, responding to the appeal, maintained the position he had adopted before the judge. He conceded that if what occurred constituted a postponement within and for the purposes of the 2002 Act, the argument fell away.   He compared the wording of the postponement provisions in the 2002 Act with that of the earlier legislation in this area, in particular the Criminal Justice Act 1988.  The thrust of his argument was that the requirement for a judicial decision to postpone has not been removed and that none was made in this case.  He drew attention to section 14(8) to demonstrate that Parliament still had in mind that there must be a cut-off point, at which the court's jurisdiction comes to an end and beyond which expired confiscation proceedings cannot be revived.  This, he argued, demonstrated the need for a judicial decision, albeit one which (pursuant to the Criminal Procedure Rules at 58.2) may be made without a hearing. He reminded us that a valid postponement must be "for a specified period" and submitted that the judge, in giving his instruction to the listing officer, did not specify any period.   
10. If this is right, it produces an answer wholly inimical to the interests of justice, consequent on the exercise of the undoubted judicial power to order an adjournment of any proceedings including confiscation proceedings, but doing so without express reference being made to the statutory provisions relating to postponements of such hearings. This outcome would be absurd, and in our judgment, it does not reflect the law. 
11. Perhaps the starting point is that listing is a judicial function, and that listing officers make the necessary arrangements on behalf of the judiciary. At the time of the events of 3 and 4 December, the confiscation proceedings were the only aspect of this case still before the Crown Court, awaiting a judicial decision.  Whether it was described as an adjournment or a re-listing, in our judgment a decision to put the hearing back to a later date constituted a postponement.  It was effected by the judge giving instructions to the listing officer and the listing officer carrying out his instruction. This culminated in the new date notified to the parties. That process, taken as a whole, constituted an extension of the postponement for the specified period to the fresh hearing date.   All was effected well within the 2 year "permitted" period defined in section 14(5).
12. This conclusion is consistent with the provisions in section 14(7)(c) that   postponement may be made by the court of its own motion. Whether or not the postponement process arises from an application by one or other or both parties, the judge must first decide whether to postpone them, then put in hand the arrangements for a fresh date for the proceedings, and then fix that date. In our judgment it makes no difference if the listing officer fixes the date without obtaining further express approval from the judge.   The re-listing is still consequent on and forms part of an order made by the court.  
13. This conclusion is entirely consistent with the reasoning of the House of Lords in R v Knights. Both these cases were concerned with proceedings to which the Criminal Justice Act 1988, with subsequent statutory amendments, applied, but the textual differences between the 1988 Act and the 2003 Act are irrelevant to the issue now under consideration.
14. In Soneji, after the critical six month period laid down by section 72 A (3) had elapsed, the judge himself "candidly acknowledged" that he could not find exceptional circumstances for extending the period and it would create a sense of injustice if he went behind that judicial finding. (See the judgment of the Court of Appeal, Criminal Division, [2004] Cr App. R. (S) 219 at paragraph 26). The Court of Appeal decided that

"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… 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"

15. The Crown's appeal was nevertheless allowed, on the basis that

"the countervailing public interest in not allowing a convicted offender to escape confiscation for what were no more than bona fide errors in the judicial process" (per Lord Steyn at paragraph 24); and

That the statute was not intended "to disable the court from making a confiscation order after sentence merely because the time limits were not strictly adhered to" (per Lord Brown of Eaton-under-Heywood at para 80)

16. R v Knights was also concerned with postponements of confiscation proceedings so that the hearing took place beyond the six month statutory period. The question certified by the Court of Appeal was

"Does a failure by a court to specify a period of postponement under Section 72 A of the Criminal Justice Act deprive that court of jurisdiction to make a confiscation order?"

17. The House of Lords answered that question in the negative. Lord Brown of Eaton-under-Heywood stated at paragraph 22:

"…assume that a judge were indeed to postpone confiscation proceedings in a particular case without specifying any return date at all. Would the court in those circumstances be precluded from restoring the proceedings to the list for hearing and thereafter making an appropriate order? Applying the approach now laid down by your Lordships in the linked case of Soneji the answer must surely be in the negative. 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…"

18. In short, the conclusion to which the reasoning in the House of Lords in Soneji and Knights drives us is the comforting one that unless the continuation of confiscation proceedings would contravene an unequivocal statutory provision, there is no reason why technical errors which cause no prejudice to the defendant should prevent their continuation. The position is exemplified by section 14(11) and section 14(12) of the 2002 Act. Section 14(11) states in express language that a confiscation order "must not be quashed only on the ground that there was a defect or omission in the procedure connection with the application for or the granting of a postponement." That language is clear, but by section 14(12) it is not to apply if, before the confiscation order was made, the court had already, for example, "imposed a fine on the defendant". That is an express statutory prohibition which it is not open to the court to ignore. However what happened here did not contravene any statutory provision.
19. The judge adjourned the proceedings and ordered the case to be relisted. He did not intend that they should lapse, and nothing he did could have had the effect of causing them to lapse. He adjourned the case, extending the period of postponement to the fresh hearing date. The judge was clearly embarrassed by what was presented to him as having been an error, and he naturally took full responsibility for it. In our judgment, however, he was not in error at that stage of the proceedings. They should have continued. The error was to allow himself to be persuaded that his order made in chambers precluded any further steps being taken by the prosecution in relation to the confiscation proceedings. In these circumstances he had done nothing which invalidated or nullified the proceedings or deprived the court of jurisdiction to proceed.
20. This appeal is allowed, and the case remitted to the Crown Court for the judge to determine the confiscation issue on its merits.