England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BRADFORD CROWN COURT
HHJ SCOTT

		Strand , London, WC2A 2LL
		3 February 2010

LORD JUSTICE HOOPER :

1. The RCPO appeals with leave the decision of HHJ Scott at the Crown Court at Bradford that the Court had no jurisdiction to entertain an application by the appellant for a confiscation order against Zaffar Iqbal, the respondent, and had jurisdiction, there were no exceptional circumstances which justified him granting the application.
2. At the conclusion of the hearing we announced our decision that HHJ Scott to hold that the court had no jurisdiction. The issue of whether there were circumstances is therefore academic. We now give our reasons for upholding Scott's decision on the issue of jurisdiction.
3. On 10 January 2006, the respondent was convicted of conspiracy to supply following his plea of guilty. The appellant asked the court to proceed under of the Proceeds of Crime Act 2002 against the respondent and four other and to make a confiscation order.
4. Section 6 of the Act sets out the procedure for making a confiscation order court must follow if two conditions are satisfied. The first condition is amongst other things, a person is convicted of an offence. The second that

"(a) the prosecutor . . . asks the court to proceed under this or

(b) the court believes it is appropriate for it to do so."

5. The hearing of the application for confiscation orders was listed on 21 May some five months after the respondent's conviction. On that day the court confiscation orders against three of the defendants. The application for a order in respect of a fourth defendant was postponed until 24 September 2007 confiscation order was later made against him.
6. In so far as the respondent was concerned, an application was made on his the postponement of the hearing of the application for a confiscation order; application was based on two grounds. It was submitted that the application confiscation order should be heard by the trial judge, HHJ Scott, and that the of the application should await the decision of the House of Lords in May on issue of apportionment, a decision handed down on 14 May 2008 [2008] [2008] 1 AC 1028; [2008] 2 Cr App R 28.
7. Mr Recorder Hill QC postponed the application for a confiscation order on the ground but not on the second. No date was set but the application for a order was to be re-listed for a mention in three months time, unless a date had been fixed. That did not happen.
8. Between then and 9 January 2008 (two years after the date of the conviction) no order was made by the court postponing the hearing of the application for a confiscation order and no application was made by either party for a postponement of the hearing of the application.
9. The next hearing of the application for a confiscation order, in the appellant's words, "may not have been until July 1 2009", when HHJ Scott reached the decision, the subject matter of this appeal.
10. The issue is a narrow one. Absent a court order before 10 January 2008 postponing the hearing of the application for a confiscation order, and absent any application made before that date to postpone the hearing, is there jurisdiction to entertain the application for a confiscation order?
11. Section 14 provides, in so far as relevant to this appeal:

" (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) ...

(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) ...

(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.

(12) 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).

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

12. It is clear that a postponement (or an extension of a postponement) is an order made by a Crown Court either on application or on its own motion.
13. We start with sub-section (3) which provides that a period of postponement (including a period that has already been extended) must not end after the permitted period ends. By virtue of sub-section (5), the permitted period is normally (and was in this case) a period of two years starting with the date of conviction. The permitted period expired in this case on 9 January 2008.
14. Sub-section (4) provides an exception to sub-section (3): "But subsection (3) does not apply if there are exceptional circumstances." It follows that a court may during the two-year period order the postponement of the hearing of an application for confiscation proceedings until a date outside that period if there are exceptional circumstances.
15. Sub-section (8) provides that if proceedings are postponed for a period then, if an application to extend the period is made before the permitted period ends, the application to extend the period may be granted after the permitted period has ended. This gives the prosecutor further leeway. Provided that the application to extend the period is made before the end of the permitted period, then the application to extend the period may be granted after the permitted period has ended (provided there are exceptional circumstances). Thus if an order has been made postponing the hearing of an application for a confiscation order to a date within the two-year period, a prosecutor could apply for the hearing of the application for a confiscation order to be further postponed until after the permitted period has ended, and the court could decide after the two-year period has expired to grant that further postponement.
16. In this case the court made no order after 21 May 2007 postponing the hearing of the application for a confiscation hearing, and the appellant made no application during the two-year period to extend the period.
17. The appellant submits that, nonetheless, it is entitled as a matter of law to make an application for a confiscation hearing at any time after the expiry of the two-year period, and that the court has "a duty to make a confiscation order" if there are exceptional circumstances which would justify such an application being made.
18. To achieve this result it is submitted by Mr Lucraft QC, on behalf of the appellant, that Parliament intended that sub-section (3) should be read to mean: "A period of postponement ... should not end after the permitted period ends but may do so". It is further submitted that, by virtue of sub-section (4), sub-section (3) would not apply and the period of postponement could end after the permitted period if there are exceptional circumstances favouring the period of postponement ending after the permitted period. As the Recorder of Cardiff pointed out in the course of argument, the word "must" would have to have a different meaning in sub-section (11) to that which it would have in sub-section (3).
19. Even if Mr Lucraft's submission was right (and we do not believe it to be), the appellant faces another obstacle in sub-section (8). This provides, as we have seen, that, if proceedings are postponed for a period and if an application to extend that period of postponement is made before the permitted period ends, the application to extend the period of postponement may be granted even after the permitted period ends. The clear intention of this sub-paragraph is that only in these limited circumstances may an extension be granted after the permitted period has ended. If the appellant is right then an application to extend a period of postponement may be made at any time after the permitted period has expired.
20. Mr Lucraft relies in particular on sub-paragraph (11), the terms of which we repeat:

"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."

21. That, so Mr Lucraft submits, shows that Parliament did not intend that procedural problems should stand in the way of the making of confiscation orders. He cannot, of course, pray this sub-paragraph in aid directly because no confiscation order has been made, but he cites what Lord Steyn said about section 14(1) in Soneji and another [2005] UKHL 49; [2006] 1 AC 340.
22. He submits that sub-paragraph (3) should be read in the same way as the House of Lords in Soneji read section 72A (1), (2) and (3) of the Criminal Justice Act 2008, which provided:

"(1) Where a court is acting under section 7I 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 (I) 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 (I) above which - (a) by itself; or (b) where there have been one or more previous postponements under subsection (I) above or (4) below, when taken together with the earlier specified period or periods, exceeds six months beginning with the date of conviction."

23. The facts of Soneji were as follows: on 24 March 2000, Soneji had pleaded guilty to conspiracy to convert property and to remove it from the jurisdiction knowing or suspecting that it represented the proceeds of criminal conduct. On 21 June 2000, the prosecutor served a notice under section 71(1)(a) of the 1988 Act. In January 2002 the judge made confiscation orders. Before he made the orders the two defendants had unsuccessfully argued that as there had been a lapse of six months under section 72(A)(3), he no longer had jurisdiction. The Court of Appeal quashed the confiscation orders on the basis that they had been made more than six months from the date of conviction, and although the Court of Appeal accepted that there was a power to postpone the making of a confiscation order under the 1988 Act, and a power to adjourn, these powers may only be exercised where the sentencing court finds that there are established exceptional circumstances which justify the postponement or adjournment. The Court of Appeal held that a failure to consider or make a finding of exceptional circumstances deprived the sentencing court of jurisdiction to make an order.
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."

25. Mr Farrell QC submits that the intention of Parliament was that the application for a confiscation order should be heard within two years of conviction in the absence of exceptional circumstances and that the intention of Parliament is clear: "If there has been no application to extend the permitted period of two years before that period expired then the confiscation proceedings cannot continue".
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.
27. For these reasons we dismiss the appeal.
28. We should maker it clear that we are not deciding what meaning should be given to sub-paragraph (11) when a confiscation order has been made and we are also not giving any opinion as to how the appellant might have been able to rectify the position before the expiry of the two-year period.