Where the Crown made the procedural error of failing to apply to extend a postponement of confiscation proceedings during the original period of postponement, it was incapable of remedy under section 14(5) or subsection (8) of the Proceeds of Crime Act 2002 and a forfeiture order made in breach of section 15(2) after the proceedings were underway, prevented a confiscation order being made under 14(11) of the Proceeds of Crime Act 2002.

The Court of Appeal, Criminal Division, so held when allowing an appeal by the defendant, Lodvik Guraj, against the confiscation order imposed on 9 June 2014 in the Crown Court at Southwark by Judge Loraine-Smith in the sum of £57,458 imposed, following his plea of guilty to possession of class A drugs with intent to supply, possession of class B drugs with intent to supply and possession of criminal property contrary to section 27(1) of the Misuse of Drugs Act 1971 and sentence imposed on 16 July 2012 by Judge Taylor of five years’ four months’ imprisonment and forfeiture pursuant to section 27 of the 1971 Act of a laptop computer, five telephones and a car. The judge also made an order postponing the confiscation proceedings under section 14 of the Proceeds of Crime Act 2002 ending in December 2012, which the Crown failed to comply with.

JACKSON LJ said, giving the reserved judgment of the court, that the Crown had served its statement pursuant to section 16 of the Proceeds of Crime Act 2002, 14 months’ late. It had made a serious procedural error in failing to apply for a postponement under section 14 of the 2002 Act, when it became apparent the original timetable could not have been met. The failure was incapable of remedy under sections 14(5) or 14(8) of the 2002 Act. Section 14(8) provided that a period of postponement could only be extended if an application for extension was made before the period of postponement had ended and the application to extend was made long after the period for postponement had ended. Section 14(11), which said a confiscation order should not be quashed only on the ground of a defect or omission in the procedure connected with the application did not apply in the present case, because the court had wrongfully made a forfeiture order in breach of section 15 of the 2002 Act. The court had to strive to give effect to the objects of the relevant confiscation legislation and Parliament’s intention, as stated in R v Knights [2006] 1 AC 368 and R v Soneji [2006] 1 AC 340, which were decided under the Criminal Justice Act 1988. Part of Parliament’s intention was now expressed in section 14(12) of the 2002 Act, which stated that subsection (11) did not apply if before it made the confiscation order the court had made a forfeiture order under section 27 of the Misuse of Drugs Act 1971. Section 14(12) was a mandatory prohibition which could not be ignored, as stated in R v Neish [2010] 1 WLR 2395. A forfeiture order should not have been made when confiscation proceedings were underway and if it was, the Crown would be held more strictly to the time limits contained in section 14. Despite the fact a two-year period had not expired on the date the court made its confiscation order, the combination of delays and breaches by the Crown were such as to deprive the court of the power to make a confiscation order.