When a court postponed confiscation proceedings the omission of a “specified period” of postponement was plainly a procedural rather than a substantive error so that a court would not be deprived of its duty to make a confiscation order where such a breach did not prejudice the defendant in any way. Alternatively, if such a failure was indeed procedural it would fall within the ambit of section 14(11) of the Proceeds of Crime Act 2002 which stipulated that such a failure should not be the basis for quashing an otherwise valid confiscation order.

The Court of Appeal, Criminal Division, so held when dismissing an appeal by Jaswinder Singh Johal against a confiscation order in the sum of £18,778 imposed on 16 May 2012 by Judge Hughes at Wolverhampton Crown Court following the defendant’s plea of guilty at the same court before Judge Challinor on 12 March 2009 to possessing a Class A controlled drug with intent to supply, for which he was sentenced on 18 December 2009 to six years’ imprisonment

The Proceeds of Crime Act 2002 provides: “14. Postponement (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 or the Director (as the case may be); (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 (c 43) (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. ….”

IRWIN J, giving the judgment of the court, said that after many delays and adjournments the confiscation hearing was listed for the last day of the two year permitted period, i e 11 March 2011. At some stage prior to 11 March the court removed the case from the list owing to lack of court time. On 22 July 2011 there was a further hearing for mention and further directions were made, including a direction that there should be a hearing on the preliminary legal issue as to whether there was continuing jurisdiction on the part of the court to deal with the matter. The recorder ruled that the fact that the court had to remove the case from the list owing to lack of court time amounted to “exceptional circumstance” which justified an extension of the permitted period. He also took into account the whole history of the matter, including delays caused by the defence and the Crown. A number of issues arose: (1) what was the proper approach to the application of the requirement for “exceptional circumstances” in the application of this section? (2) was the recorder’s conclusion open to him on these facts, i e was it reasonable (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), and (3) what was the effect, if any, of the failure to postpone for a “specified period”.

In relation to the first question the court considered the following authorities: R v Soneji [2006] 1 AC 340; R v T [2010] EWCA Crim 2703; London & Clydeside Estates v Aberdeen District Council [1980] 1 WLR 182 and R v Iqbal [2010] 1 WLR 1985. Standing back from all the authorities, it was clear that the intention of Parliament was that a broad approach should be taken to what constituted "exceptional circumstances". Indeed, in the approach to section 14 generally, Parliament's intention had to be taken to be to ensure that confiscation proceedings went ahead and were effective without technical problems of timing and timetabling acting as a bar to recovery. Adherence to the timetable was an obligation but the approach to strict failures to comply should reflect that intention of Parliament.

Answering the second question, it was clear, adopting the approach in R v Sonejithat there was a sufficient basis for the recorder's conclusions that, reviewing events as a whole, exceptional circumstances did apply. Consideration should have been given to the question before the court postponed the proceedings beyond the permitted period; but had that consideration taken place at the right point, the conclusion would have been the same. Taking together the sequence of delays, many of them at the hands of the defendant, the recorder's conclusion was well within the range of reasonable conclusions he could have reached. It was not capable of challenge.

As to the third question, there were two possible answers, or rather two routes by which the same answer would emerge. It was strongly arguable that the failure to specify a period of postponement in the order itself was not merely a procedural error "connected with … the granting of a postponement" within the meaning of section 14(11) but was a substantive (although technical) omission in the order to postpone, which tainted the order itself. If that was right, the defect could not be remedied by reliance on section 14(11). Another point which arose was derived from the wording of the subsection which for present purposes it was worth repeating: “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." It might be right that the use of the phrase "application for or the granting of a postponement" meant by necessary implication that the subsection applied only where there had, in truth, been an application for a postponement leading to a grant by the court, and that the situation which arose in this case, where the court postponed the period of its own motion, was not covered by the saving provision in section 14(11). However, setting aside section 14(11), when viewed in the context of the confiscation order itself, the omission of a specified period plainly was procedural error. Adopting the approach laid down in R v Soneji, there was no doubt that the defect would not render the confiscation order itself invalid. Applying R v Soneji,, Parliament could not have intended that the court should be deprived of its duty to make such an order for a breach which typically would not, and did not in this case, prejudice the defendant in any way. If substantial prejudice were to arise as a result of such a decision, then the remedy is in the shape of a submission that such a decision represented an abuse of process. This was not a matter where there was no remedy at the hands of someone who had suffered prejudice as a consequence of such an order. If, to the contrary, the better view was that such a failure was indeed procedural and did therefore fall within the ambit of section 14(11), then Parliament had stipulated that such a failure must not be the basis for quashing an otherwise valid confiscation order. For all those reasons this appeal failed.