“(1) Where an offender is convicted, in any proceedings before the Crown Court or a magistrates’ court, of an offence of a relevant description, it shall be the duty of the court— (a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or (b) if the court considers, even though it has not been given such notice, that it would be appropriate to proceed, to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct. (1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct. (1B) Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then— (a) determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and (b) make an order under this section ordering the offender to pay that amount.” (a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or (b) if the court considers, even though it has not been given such notice, that it would be appropriate to proceed, (a) determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and (b) make an order under this section ordering the offender to pay that amount.”
“MR HENRY: Your Honour, may I deal with it in this way if I might; it has been helpful because all counsel have conferred this morning and have indicated that a final hearing, if it can be accommodated by the Court, or more importantly by your Honour, if it might be held in September. It is right to point out – JUDGE FOCKE: The answer is no. MR HENRY: Well your honour, it is right to point out. MR WALBANK: I am very sorry to interrupt but Mr Henry seems to be proceeding on a false basis about the likely date on which the hearing could be accommodated. It might have been wise, before addressing your Honour on the timetable, to have some discussions, which I have now had, with Ms Benjamin the listing officer. I understand from her that the earliest date when the hearing could be accommodated would be some time in the two weeks after 30th October. That is the first occasion when your honour would be available to hear the confiscation proceedings.”
“I must, however, before resorting to any common law power, be satisfied that it is not designed to circumnavigate the provisions of Section 72A or the intentions of Parliament. In the circumstances of this case I am satisfied that the inherent powers can be appropriately and were appropriately used, in that the direction on the 18th August was that an adjournment should take place because the hearing should be adjourned until the 30th October, pursuant to the Court’s inherent powers. All parties, for some time before 18th August, knew of the listing difficulties and that the only practical solution was to fix the confiscation determination for a hearing on the 30th October, with perhaps the first two weeks in November being allocated for that hearing. I am satisfied that the order made directing that hearing on 30th October was, in all the circumstances, a just and fair order and the purpose of the order was not to facilitate the obtaining of further information but, more importantly, to cope with a listing problem and, as I say, listing problems are not sadly exceptional circumstances, but there has to be a just and fair solution to such matters and, in the circumstances, it seems to me fair to invoke, as I say, the inherent powers of the Court and, accordingly, I hold that the order made on the 18th August was a valid one.”
“Confiscation orders should normally form part of the ordinary sentencing process. For lack of appropriate information, this will often be impractical. If the conditions in section 3(1) or 3(4) [of theDrug Trafficking Act 1994 ] are satisfied, and within six months of conviction, the court may decide that the determination should be postponed. Unless the circumstances are exceptional this should not extend beyond six months after conviction. These decisions involve the court’s discretion, judicially exercised when the statutory conditions are present, taking full account of the preferred statutory sequence as well as the express direction in the statute that save in exceptional circumstances confiscation determinations should not be postponed for more that six months after conviction. So far as practicable, adjournments which would have the effect of postponing the determination beyond that period, or in exceptional cases, beyond the period envisaged when the decision to postpone was made, should be avoided. Nevertheless when the circumstances in an individual case compel an adjournment which would have this effect, then whether or not the information gathering process has been completed, it may be ordered, for example, to take account of illness on one side or the other, or the unavailability of the judge, without depriving a subsequent order for confiscation of its validity,”
“Will a failure to hold a forfeiture hearing within 6 months make any forfeiture order a nullity? If without exceptional circumstances the defendant had not had a forfeiture order made against him within 6 months of the date of postponement, then in our view no such order could lawfully be made. The time limit is there to protect the defendant from unfairness through justice being unduly delayed. Like other limitation periods, Parliament has intended a cut-off date which, subject only to exceptional circumstances, entitles a defendant to be free from the risk of further punishment. The fact that the court is given a limited discretion to extend time beyond that date [‘exceptional circumstances’] supports this view. What are exceptional circumstances may well include administrative matters such as court availability, and judge and defendant availability. But what is ‘exceptional’ is not a matter that can be, or should, be further defined.”
“It is in our view plain from the decision in Shevki and the detail of the passage actually quoted from that decision that there could be no lawful postponement (a) unless there was an actual judicial decision to that effect and (b) if the judicial decision resulted in a postponement beyond the six month period, unless exceptional circumstances existed. If those conditions were satisfied, was it necessary that the judge making the decision should use the words “exceptional circumstances” in order to render the decision lawful, or could it be enough that the judge relied on proper reasons and that those reasons in fact reflected exceptional circumstances whether that phrase was used or not? Our answer is that, despite the absence of the words “exceptional circumstances” from the decision, the decision was capable of being lawful under the Act. It was lawful provided that a real judicial decision was made on good grounds and that those grounds were capable of, and did amount to, exceptional circumstances. In our judgment there were exceptional circumstances to be found in the reasons given by the judge. It is important to note that the postponements or adjournments were all with the consent of the appellant, as we have already observed. In the vital hearing of March 1999 it is true that the appellant was not present, but it is plain that counsel was instructed on his behalf, but as the decision in the case of France indicates, it is an important matter to weigh in considering whether exceptional circumstances existed. In our judgment it is necessary, in deciding the presence or otherwise of exceptional circumstances, to consider the purpose of the legislation. The legislation is plainly intended to protect a defendant in avoiding prejudice to him caused by undue delay in determination. If a defendant’s own interests dictate that the matter be postponed in order for him to obtain further information and make further enquiries, and if he indeed specifically requests an adjournment for that purpose, then that, in our view, is a strong indication that the circumstances are exceptional. In such a case the delay, assumed by the statute as being damaging to his interests, proves in fact quite the reverse. It is necessary in furtherance of his interests. Thus it represents an exception to the statutory assumption. We are satisfied that the judge, in postponing the matter in March 1999 for a period which took it beyond the six month period, was acting lawfully.”
“In relation to the procedural requirements which Parliament has imposed it is possible fairly readily to come to certain conclusions. These are as follows: i) Since the 1988 Act was passed, Parliament has been attaching increasing importance to courts being in a position to make confiscation orders. For that reason it has relaxed the requirements of the order having to be made as part of the original sentencing process. In the 1988 Act in its unamended form, the court was unable to proceed to sentence until the court had gone through the procedural steps and dealt with confiscation. The subsequent amendments gave the court power to adjourn sentencing but care was taken to specify the limits on the power to postpone its decision to order confiscation. (See S.28 of the 1993 Act and the terms of S.2A of the 1988 Act inserted by S.28.) This process was continued by the 1995 Act which extended the court’s powers. ii) Parliament was intent on ensuring that wherever practicable the process of making a confiscation order and sentencing should be linked. It can be readily understood why Parliament should have adopted this course. After all, it is important that the defendant should know as soon as practicable what are the consequences to him of his conviction. Parliament, therefore, when it did relax the requirements did require the court to be satisfied that if it was to grant a postponement or extension there were ‘exceptional circumstances’ to justify this. (see S.72A(6))”
“On our analysis what happened on29 January 2001 was that the court exercised the common law power that we have identified earlier in this judgment. The fact that the judge may have thought he was making an order under section 3 [of the 1994 Act] is nothing to the point. What matters is that he exercised his discretion to extend the time for the confiscation proceedings for a period of six months because there were exceptional circumstances. The judge was told that the trial of Bravo was still outstanding and that there were additional defendants involved. Also, there were further investigations in Luxembourg that were incomplete. Mr Casey, who appeared on both occasions for the appellant, expressed uncertainty about whether the incomplete investigations could amount to exceptional circumstances but said that he could not argue against the other point. The court accordingly exercised its powers under the common law, the appellant not yet having appeared to be sentenced, but applied the test prescribed by section 3.”