|Judgments - Regina v. Soneji and another
(Respondents) (On Appeal from the Court of Appeal (Criminal
HOUSE OF LORDS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Soneji and another (Respondents)
(On Appeal from the Court of Appeal (Criminal Division))
Lord Rodger of Earlsferry
Lord Cullen of Whitekirk
Lord Brown of Eaton-under-Heywood
(instructed by Revenue and Customs
(instructed by Stanley Tee)
20, 21 and 22 June 2005
THURSDAY 21 JULY 2005
1. The Confiscation Regime.
In the course of moving the Bill in the House of Lords the Lord Chancellor explained (Hansard, HL Debates, 25 June 2002, col 1241) that section 14(11) is:
This provides some retrospectant evidence of the difficulties caused in practice by the postponement procedures under the 1998 Act.
The succeeding subsections of section 71 then spell out the duties of the court in detail. About section 71(1) three points must be noted. First, it places an overarching duty on the court when an offender is convicted to consider how to act in respect of confiscation. Secondly, even if the prosecutor does not seek by notice to persuade the court to consider confiscation, the court must of its own motion consider whether to embark on confiscation proceedings. Thirdly, the court must act in this way act before sentencing.
The genesis of section 72A is as follows. The earlier provisions were premised on the basis that in the normal case the court would deal with the confiscation order before sentencing the defendant. The power to postpone confiscation proceedings was provided in effect as an afterthought by the Criminal Justice Act 1993.
II. The Confiscation Proceedings.
III. The Court of Appeal Decision.
IV. The Certified Questions.
While the Appellate Committee always pays close attention to the formulation of questions certified by the Court of Appeal, it is not bound by the terms of the certification: Attorney General for Northern Ireland v Gallagher  AC 349, 365, per Lord Reid. In this case I would prefer, in the first place, to consider what are the legal consequences of failures under the confiscation regime under section 72(A), and in particular the time limit under section 72(A)(3).
V. The Assumption.
This is the basis on which I propose to consider what are the legal consequences of the failures identified by the Court of Appeal. But the issues have a wider significance.
VI. The Core Problem.
VII. A New Perspective.
This was an important and influential dictum. It led to the adoption of a more flexible approach of focusing intensely on the consequences of non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity. In framing the question in this way it is necessary to have regard to the fact that Parliament ex hypothesi did not consider the point of the ultimate outcome. Inevitably one must be considering objectively what intention should be imputed to Parliament.
It will be noted that Lord Slynn spoke of jurisdiction not being lost. He was using that notion in the traditional sense of conveying that the authority or power of the court had not been lost: Halsbury's Laws of England, 4th ed, (Re-issue), para 314.
He added at p 430, para 17:
The reasoning in Charles is along the same lines as Lord Hailsham's observations and the Wang case.
This observation was subsequently cited in the Charles case in the Privy Council to which I have referred.
This reasoning contains an improved analytical framework for examining such questions. In the evolution of this corner of the law in the common law world the decision in Project Blue Sky is most valuable.
I regard the developments in Canada as very similar to those in New Zealand and Australia.
VIII. Application of the Test Enunciated in Attorney General's Reference (No 3 of 1999).
IX. Two Remaining Issues.
Where the court considers that it requires further information before making a determination, under subsection (1) it may, for the purpose of enabling that information to be obtained, postpone making the determination. But, unless in exceptional circumstances, the period of postponement must not exceed six months from the date of the defendant's conviction. If the court exercises this power and postpones the determination, under subsection (7) the court may nevertheless proceed to sentence the defendant and, where it does so, under subsection (8) section 71(1) has effect as if the words requiring the court to act before sentencing were omitted. Put shortly, if the court postpones the determination of a matter relating to the confiscation order, it can still sentence the defendant and, if it does so, the words in section 71(1) which require the confiscation order to be made first are deemed to be omitted.
LORD CULLEN OF WHITEKIRK
LORD BROWN OF EATON-UNDER-HEYWOOD
But I have difficulty with those observations. Section 72A(3) can hardly have been designed to maintain a close temporal connection between the initial sentence and any subsequent confiscation order. Assume that an offender, A, pleads guilty and is remanded for sentence until the conclusion of co-offender B's trial. If B's trial takes six months and A's confiscation order is thus delayed for more than six months there will necessarily have been a non-compliance with section 72A(3) (unless of course a postponement order was specifically made on grounds of exceptional circumstances). And this will be so even if the confiscation order is made before the appellant is sentenced.