England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		16 September 2010

1. LORD JUSTICE LAWS: This is an application by the Crown for leave to appeal against the ruling of HHJ Ambrose given in the Swindon Crown Court on 5 March 2010, to the effect that he had no jurisdiction to hear and entertain the Crown's application for a confiscation order against the respondent. On 19 December 2007, at the Swindon Crown Court before HHJ Wade, the respondent, who had absconded while on bail, was convicted in his absence of an offence of money laundering and sentenced to three-and-a-half years' imprisonment. On the same day the Crown gave notice of their intention to pursue the respondent in confiscation proceedings.
2. The background facts may be described very shortly. The respondent was employed as a service engineer for Dell Computing. During his employment he stole stock, which he then sold on the Ebay auction website using the bank account of a man with whom he was living. On 8 March 2006, he was dismissed from his employment and the matter was reported to the police. On 24 March 2006, the respondent withdrew £100,000 in cash from a number of bank accounts. He was arrested on 10 May 2006.
3. The police obtained a restraining order prohibiting the respondent from disposing of the £100,000, and requiring him to provide details of his assets and information as to the whereabouts of the money. On 19 June 2006, the respondent reported a robbery to the police and claimed that the £100,000 had been stolen from him. Later he accepted that that was a lie. He was further interviewed on 3 October 2006. At that stage he declined to say anything about the missing money. He was charged in June 2007. He absconded while on holiday in the United States.
4. The Crown served their statement of information in support of the application for a confiscation order on 14 February 2008. On 8 April 2009, the respondent, having been extradited from the United States, appeared at the Swindon Crown Court where he was ordered by HHJ Horton to serve his counter statement within a period of two months. The confiscation hearing was listed for 2 October 2009. On that date, however, the respondent failed to attend, nor had he lodged any counter statement. He was ordered by HHJ Dixon to lodge it by 27 November 2009 and the confiscation proceedings were adjourned to 21 December 2009. The Proceeds of Crime Act 2002, section 14, provides for limitations of time for the bringing of confiscation proceedings. By section 14(1) the court may proceed with confiscation proceedings either before the defendant has been sentenced, or may postpone the confiscation proceedings for a specified period which by section 14(2) may be extended. However, by section 14(3) a period of postponement, including one as extended, must not, save in exceptional circumstances, (subsection (4)), end after the permitted period ends. The permitted period is by section 14(5) a period of two years starting with the date of conviction. By section 14(7) a postponement or extension may be made by the court of its own motion. Section 14(8) provides:

"(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."

5. Here the permitted period under section 14(5) expired on 18 December 2009, two years after the conviction. The hearing that had been fixed for 21 December 2009 was adjourned by the court, we understand, for lack of time. The respondent at length put in a counter notice, but not until 13 January 2010. The matter came back into court on 5 March 2010 when HHJ Ambrose held, as we have indicated, that there was no jurisdiction to entertain the proceedings. He so held because the POCA time limit had expired on 18 December 2009, the end of the permitted period. He relied on the decision of this court in R v Iqbal [2010] EWCA Crim 376. In that case Hooper LJ, giving the judgment of the court said this, paragraph 26:

"In our view the wording of section 14 (and in particular of sub-paragraphs (3) and (8)) makes it quite clear that Parliament intended to give prosecutors a longer period than the six months under the earlier legislation, but at the same time intended to make it clear that any application to extend a period of postponement had to be made before the permitted period expired."

6. In light of that HHJ Ambrose concluded that he had no power to hear the confiscation proceedings because the Crown had not applied before 18 December 2009 to extend the permitted period. The learned judge accepted that there were, or would have been, strong grounds for a finding of exceptional circumstances within the meaning of section 14(4).
7. It is submitted for the Crown that the effect of HHJ Dixon's order, made on 2 October 2009, to adjourn the confiscation proceedings to 21 December 2009 was to postpone the proceedings within the meaning of section 14. That postponement was extended when the 21 December 2009 date was adjourned by the court for lack of time. It is right to say (we have seen the transcript) that HHJ Dixon certainly did not expressly address the question of exceptional circumstances. A postponement beyond the two-year permitted period is only lawful if there are such exceptional circumstances (see sections 14(3) and (4), which we have not set out). However, HHJ Dixon on 2 October 2009 did not, at least it seems he did not, consider exceptional circumstances, nor presumably did the court when it further adjourned the 21 December date.
8. The Crown prays in aid, faced with that aspect of the facts, what was said by Lord Steyn in R v Soneji [2006] 1 AC 340, cited in Iqbal by Hooper LJ at paragraph 24, as follows:

"24. That decision was reversed. It was held by the House of Lords that the correct approach was to ask whether it was a purpose of the legislature that the failure to make any finding about exceptional circumstances would invalidate the confiscation order. The House of Lords held that it did not. Lord Steyn (with whom the other members of the Committee agreed) said:

'25. In my view an objective appraisal of the intent, which must be imputed to Parliament, points against total invalidity of the confiscation orders.'"

9. HHJ Ambrose on 5 March 2010 said this (transcript of 5 March, page 21E):

"In this case there are strong grounds for a finding of exceptional circumstances, since the defendant had absconded whilst on bail and before his trial, had travelled to the United States and remained in the United States at large until tracked down and returned to this country in April 2009. Thereafter although a serving prisoner, he contrived not to attend court on 2nd of October 2009, by wrongly telling the prison authorities that he was not required at court. The lack of progress in these Confiscation Proceedings lies squarely at the defendant's door and, as I say, there would be strong grounds for a finding of exceptional circumstances."

10. We should say we wholly agree with those observations and we indicate, as a matter of fact, that in this court's view there were indeed exceptional circumstances in this case.
11. The respondent for his part submits, by counsel Mr Hinton, that express consideration should have been given to the question of exceptional circumstances. However, that submission tends to cut across Soneji and, in any event, as we have just held, there clearly were exceptional circumstances here.
12. There is a further point in the papers on section 14(8), that that subsection only applies where there is an application to extend a period of postponement. Here the court extended the period itself.
13. In our judgment HHJ Ambrose should not have been inhibited, as he was, by Hooper LJ's observation in Iqbal so as to conclude that there was no jurisdiction here to entertain the confiscation proceedings. It is true that HHJ Dixon, or the court at the stage of the later postponement, did not expressly consider exceptional circumstances. That should have been done. While we propose, for the reasons we have given, to grant leave to appeal here and indeed to allow the appeal, we wish to emphasise the importance that this court attaches to the need for judges in the Crown Court to be very alive to the provisions of section 14 of the Proceeds of Crime Act, and to ensure that their judgments are expressly loyal to those provisions.
14. MR DIXEY: Thank you, my Lord. Under section 32(2(b) I would invite you please to direct the Crown Court to proceed afresh under section 6.
15. LORD JUSTICE LAWS: Given our judgment that must be right.
16. MR HINTON: That might be right.
17. LORD JUSTICE LAWS: We make that direction.
18. MR HINTON: May I make a correction of the transcript.
19. LORD JUSTICE LAWS: Yes, please.
20. MR HINTON: For the purpose of the transcript the unsuccessful respondent was represented by Mr Hinton rather than the successful Mr Dixey.
21. LORD JUSTICE LAWS: Shorthand writer substitute Hinton for Dixey where Dixey appears in the transcript. My mistake. There remains only a non-counsel matter in the list. Counsel need not remain out of courtesy for the court.