Young v R [2003] EWCA Crim 3481

Case No A4/2002/06938[2003] EWCA Crim 3481
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BOURNEMOUTH CROWN COURT
HH Judge Harrington
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 4 th December 2003
Before
LORD JUSTICE MAYMR JUSTICE RODERICK EVANSHIS HONOUR JUDGE ROBERTS QC
Between
TREVOR ALAN YOUNGAppellantRRespondent
N S Haggan QC for AppellantD Bartlett (instructed by The Crown) for RespondentHearing Hearing dates : 28 th October 2003
JUDGMENT
[1]On 9th May 2002 at the Crown Court at Bournemouth, following a trial which lasted approximately 9 weeks, this appellant was convicted by the jury on count 1 of conspiracy to defraud, on count 2 of being knowingly concerned in the fraudulent evasion of Value Added Tax and on count 3 of furnishing a false document, namely a Value Added Tax Return. The following day he was sentenced on those counts by the trial judge, HH Judge Harrington, to terms of 7 years, 4 years and 18 months imprisonment respectively. Those terms were ordered to run concurrently making a total sentence of 7 years imprisonment.[2]On 15th November 2002 a confiscation order was made by Judge Harrington against this appellant in the sum of £111,105. That sum was ordered to be paid within 18 months of the making of the order and in default of payment a term of 2 years imprisonment consecutive to the 7 years was imposed.[3]The appellant was given leave to appeal against the confiscation order by the single judge who refused leave to appeal against the sentences of imprisonment. The appellant renews that application before us and we shall deal with that matter first.[4]Although the appellant was jointly indicted with three others it was ordered that he be tried separately. The first co-accused was Neil Robert Smith who on rearraignment at the end of September 2002 pleaded guilty to count 1 (conspiracy to defraud), count 2 (fraudulent evasion of VAT) and counts 6 and 9 both counts of furnishing a false document, namely a VAT return. On 18th November 2002 he was sentenced to concurrent terms of 14 months, 12 months and 8 months imprisonment on counts 1, 2 and 9 respectively. No separate penalty was imposed on count 6.[5]Danielle Louise Connell was indicted on counts 1 and 2 and on counts 7 and 8 with furnishing false VAT returns. All of these counts were initially ordered to lie on the file subject to the usual conditions as it was unclear whether she would ever be well enough to stand trial. The third co-accused, Polly Humble, was indicted on count 1 but the case against her was at first adjourned as she was pregnant and then on 28th February 2003 the prosecution offered no evidence against both women.[6]The charges all arose out of the activities of a company called Flagship Quality Flower Limited (Flagship) which was in the business of selling roses and was linked to a local charity called “Help”. Flagship had a large band of self-employed drivers and sellers who sold roses and collected money for charity in public houses, clubs and restaurants across southern England. Initially Flagship was linked to a charity called “Dial a Dream” but in September 1998 Help was granted charitable status and on 1st March 1999 Help superseded Dial a Dream. Help was not an independent charity. It was conceived by the appellant who arranged for Miss Humble and two others to become trustees. Some charity events were organised and donations made to supply small items of equipment for use either in hospitals or patients’ homes.[7]A written agreement was made in March 1999 between Flagship and Help that Help was to receive 90% of the money raised on its behalf by Flagship. Flagship was required to keep proper records of all receipts and outgoings relating to the project. That agreement was varied in July 1999 entitling Flagship to retain 30% of the proceeds. The wages of the collectors were calculated as a percentage of the total take of rose sales and charitable donations.[8]In fact the whole scheme was a fraud which finally ended in March 2000 when police raided the premises of Flagship and the home of the appellant which he shared with Miss Connell. The fraud was simple. Instead of receiving 90% or 70% of the donations, Help received only about 10% being the proceeds of the sale of flowers and donations on a Sunday whilst the money collected on Wednesdays, Thursdays, Fridays and Saturdays was taken each night to the appellant’s home along with the accompanying documentation. As part of the fraud that documentation was destroyed. The only records recovered related to two nights and a Sunday. Those records indicated that after the appropriate deductions, Help should have been receiving about £12,000 a week but considerably less was paid over.[9]Flagship was also registered for VAT but the figures provided for the company’s accountants failed to reflect the true position on sales of flowers and VAT in the sum of about £73,000 was evaded.[10]The appellant is 46 years of age and has been before the courts on numerous occasions for offences of dishonesty, mainly in the 1970’s and 1980’s. His previous offences include conspiracy to commit burglary, three convictions of conspiracy to steal and two convictions of conspiracy to obtain property by deception. His last conviction was in 1994 for obtaining services by deception for which he was made the subject of a community service order.[11]When sentencing the appellant the judge, who had of course heard the evidence during the trial, declared himself “entirely satisfied” that the loss to Help occasioned by the fraud was in excess of £500,000. He had no doubt that the appellant was the controlling mind behind the fraud and that the appellant had profited from it substantially, certainly far more than anybody else involved. The judge regarded the fraud which the appellant carried out as highly professional and he bore in mind the meanness of a fraud perpetrated on a charitable organisation and the damaging effect such a fraud would have on the public’s confidence in those who undertake fundraising for charitable causes.[12]Mr Haggan, on behalf of the appellant, has frankly told us that when he was asked to consider the merits of an appeal against these sentences in May 2002, his view was that the sentences on counts 2 and 3 (4 years and 18 months concurrent) were manifestly excessive but that although he considered the 7 year term imposed on count 1 to be at the upper end of the acceptable bracket of sentencing, it could not be said to be manifestly excessive. Accordingly, as all sentences had been ordered to run concurrently, he advised that there was no merit in an appeal against sentence.[13]Mr Haggan’s opinion changed, however, in late September 2002 when he heard of the sentence imposed on Smith and he submits that there is an improper disparity between the sentences imposed on the two men.[14]Smith is 30 years of age. He too has previous convictions for offences of dishonesty but for offences much less serious than those of the appellant. His last such conviction was in October 1991 for theft from a vehicle. His antecedents put him in a wholly different category from that of the appellant.[15]Smith entered his guilty pleas on a written basis, a copy of which we have seen. In summary, Smith was the office manager of Flagship. For a period of 5 months from February 1999 he actively participated in the fraud in that he compiled and signed, or merely signed, books which contained figures which he knew to be false. Thereafter, he refused to keep the books but continued his participation in the fraud, though in a less active role by sending out rose collectors and their tins. He was aware during the period of the fraud that figures submitted to the accountants for the purpose of calculating the quarterly VAT returns were inaccurate and two VAT return forms that he signed contained, to his knowledge, false information. However, he did not know the true figures and therefore did not know the extent of the fraud. He derived no benefit from the fraud other than his salary.[16]Smith was sentenced on the basis upon which he entered his pleas and the judge accepted that Smith had been recruited by the appellant as the manager of Flagship and that he had played no part in setting up Help and when he joined the company he believed the operation to be legitimate. He also accepted that Smith had tried to resign from the company in September 1999. The judge came to the conclusion that the appellant was a far more sophisticated man than Smith and that Smith had come under the appellant’s influence.[17]There were therefore a number of features in the case of Smith which formed a proper basis for a distinction to be drawn between him and the appellant. Put shortly they are: Smith pleaded guilty albeit not at the first opportunity; the difference in their antecedents; the difference in the roles each played during the fraud and the difference in the benefits each derived from the fraud.[18]Nevertheless, Mr Bartlett who appears for the Crown in relation to the appeal against the confiscation order, has told us that after sentence had been passed on Smith he advised that the sentence was unduly lenient within the terms of s36 of the Criminal Justice Act 1988. However the Attorney General declined to refer the matter to the Court of Appeal.[19]It may well be that Smith was fortunate to be sentenced as he was, that the sentence was lenient and that a longer sentence could not have been the subject of proper complaint. However, the test which we have to apply is that set out by Lawton LJ in R v Fawcett 5 Cr.App.R.(S) 158 namely, “ would right thinking members of the public, with full knowledge of the relevant facts and circumstances, learning of this sentence consider that something had gone wrong with the administration of justice?”[20]In the light of the distinctions between Smith and this appellant we are unpersuaded, applying that, test that there is any improper disparity which would justify a reduction in the sentence of 7 years’ imprisonment passed on this appellant. If anything went wrong with the administration of justice here, which we doubt, it was that Smith’s sentence was lenient not that the appellant’s sentence of 7 years was manifestly excessive. Right thinking members of the public, properly informed, would so consider. The renewed application in respect of the 7 year term is therefore refused.[21]There remains the question of the concurrent terms imposed on counts 2 and 3 which do not, of course, affect the overall term imposed upon the appellant. Mr Haggan’s submissions in respect of the sentences are set out in his skeleton argument. Mr Bartlett in his skeleton argument conceded that the terms imposed on these counts were manifestly excessive. We granted leave to appeal on these counts, together with the necessary extension of time, at an early stage of the hearing.[22]We have concluded that in the light of the amount of VAT involved in this case and the nature of the offence, that the term of 4 years imprisonment imposed on count 2 is manifestly excessive and we intend to quash that term and in its place impose a term of 3 years imprisonment. We are however unpersuaded that the term of 18 months imprisonment imposed on count 3, though a severe sentence, is manifestly excessive and the appeal against that term is dismissed.[23]The sentences on counts 1, 2 and 3 will therefore be 7 years, 3 years and 18 months imprisonment respectively, those terms to run concurrently.

Appeal against the confiscation order

[24]This is another case in which the making of a confiscation order is challenged on appeal because, it is submitted, the court failed to comply with statutory procedural requirements. The judge made his determination and made the confiscation order on 15th November 2002. This was a few days more than six months after the date of the appellant’s conviction on 9th May 2002. Mr Haggan submits that there were no “exceptional circumstances” enabling the court to exceed that six month period such as are required to give the court jurisdiction under section 72A(3) of the Criminal Justice Act 1988 as amended. The confiscation order was therefore made without jurisdiction and should be quashed.[25]The appellant had been charged with the offences of which he was eventually convicted on 19th June 2000. He and the three co-defendants were committed for trial on 20th November 2000. Both the Crown and Customs and Excise served notices of their intention to apply for a confiscation order on the appellant in November and December 2000 respectively.[26]On 28th January 2002, the appellant and two of his co-defendants, Neil Smith and Polly Humble, appeared at Bournemouth Crown Court for their trial. Danielle Connell was unfit to be tried but was represented by counsel in her absence. There was an application to stay the proceedings on the grounds of abuse of process. This application failed but, on 21st February 2002, the court ordered that the appellant should be tried separately from the three co-accused. Their trials were adjourned to a date to be fixed. The appellant’s trial started on 26th February 2002 and concluded with his conviction on all three counts on 9th May 2002. The appellant’s leading and junior counsel and counsel for the Crown had all appeared in these proceedings.[27]The trials of the co-accused were outstanding. It was not known whether Danielle Connell would ever be fit to stand trial, but the trials of Neil Smith and Polly Humble at least were expected to take place. The appellant was reluctant to remain on remand for an indefinite period. He asked to be sentenced immediately and he was sentenced on the day following his conviction.[28]On 9th May 2000, the Crown applied for postponement of the prosecution application for a confiscation order. It was submitted on behalf of the appellant that the court could not sensibly deal with the application until the trial of the co-accused had been concluded. This was understandable in the light of R v Porter [1990] 1 WLR 1260, where this court held that, in assessing benefit in accordance with the provisions of section 1 of the Drug Trafficking Offences Act 1986, the court must, as between co-defendants, determine their respective shares of any joint benefit that they may have received as a result of drug trafficking. In the present case, counsel for the Crown contended that the appellant’s position was clear and that a determination should be made within the prescribed six month period.[29]The court ordered that the hearing of the prosecution’s application for confiscation against the appellant should take place on 20th September 2002. Directions were given for the service of the Prosecutor’s Statement by 6th June 2002 and the Defence Response by 11th July 2002. A further directions hearing was fixed for 2nd August 2002. This date was later changed to 7th August 2002. A provisional Defence Response was served on 5th July 2002. This document did not concede that it was either possible or sensible for the court to attempt to determine the issue of confiscation until the trial of the co-accused had taken place. It was so submitted on behalf of the appellant at the directions hearing on 7th August 2002. It was submitted that there were exceptional circumstances that entitled the court to postpone the confiscation hearing beyond the statutory six month period. Mr Haggan suggested that it would perhaps not be the best deployment of public resources to obtain valuations of relevant property until such time as it was reasonably foreseeable that the confiscation hearing would take place. He said that if the trial of Mr Smith and Miss Humble lasted anything like the length of the trial of the appellant, the court would not be in a position to deal with confiscation for about a year. Mr Bartlett on behalf of the prosecution indicated that the Crown did not accept the submission based upon Porter nor the proposition that the application for confiscation could not be dealt with until after the trial of the co-accused. He invited the court to order the appellant to complete his Response by the end of August, since the time remaining within the six month period was very limited. He suggested that the matter of exceptional circumstances, then contended for on behalf of the appellant, should be fully argued in late September. If the Crown were right about that, a final confiscation hearing should be arranged before the early part of November. The court ordered the appellant’s full Response to be provided by 30th August 2002 and fixed a hearing for directions on 26th September 2002 to determine the then anticipated defence submission that there should be a postponement of the confiscation proceedings.[30]The revised Defence Response was served on 29th August 2002. This reiterated the case for postponement and exceptional circumstances.[31]In the afternoon of 25th September 2002, a Supplemental Prosecutor’s Statement was delivered to the appellant’s solicitors. This was a substantial document including 66 pages of appendices. Earlier that day, Neil Smith had pleaded guilty to 3 counts on the indictment. The pleas were not acceptable to the Crown, but attempts were being made to agree an acceptable basis of plea. The defence were informed of this late that afternoon. They were also told that Mr Smith was bankrupt; that the Crown did not propose to pursue applications for either compensation or confiscation against Smith or Miss Humble; that Miss Humble was now pregnant, her child being expected in about January 2003; and that for this reason her trial would have to be adjourned until sometime later in 2003.[32]On 26th September 2002, Smith agreed to plead guilty to another count on the indictment. This was acceptable to the Crown and the need for his trial was avoided. The basis for the appellant’s submission that his confiscation proceedings should be postponed had gone.[33]At the directions hearing on 26th September 2002, Mr Haggan explained the defence view that, now that the guilt of Neil Smith had been established, the court had sufficient information to be able to arrive at a proper and sensible assessment of the respective benefits received by the appellant and Smith. He withdrew the application that the confiscation proceedings should be postponed until after the co-defendants had been tried. Mr Bartlett said that, if the defence were not applying for a postponement, there was nothing between the parties and they ought to get on with it. What the parties needed was sufficient time to do so at a mutually convenient time. If this could not be done before 8th November, it would be necessary for the prosecution to apply to the court for a postponement because of exceptional circumstances. The time estimate for the hearing was 3 days. The judge assumed that, once the hearing had begun, it could be adjourned part heard under the inherent jurisdiction of the court. Mr Bartlett agreed that it could. The judge asked if there was any possibility of at least making a start on the hearing in the first week of November. Mr Bartlett said that counsels’ diaries suggested that that would be very difficult. He suggested that it would be prudent to ask for an extension then for exceptional circumstances; “… and I would itemise those as being the understanding of the Crown, until today, that there might be a trial of Mr Smith that might, in any event, postpone this hearing; the fact that my learned friend, until today, sought a postponement of the hearing if that had happened; and the recognition, only today, that neither of those things has happened, leaving all too little time for the statutory period to run and the conclusion of these proceedings.” The other suggestion was that the court could formally start the hearing then and then adjourn it.[34]At this stage in the hearing, Mr Haggan said that the defence would be bound to accept that this was an exceptional circumstances case. They had made it plain that that was so in their skeleton argument. It would be quite wrong to depart from that position.[35]Enquiries were then made of the list office to try to find a mutually convenient date. Mr Haggan has submitted in this court that the arrangements which were subsequently made, and which resulted in the conclusion of the confiscation proceedings against the appellant a few days after the end of the six month period, were to accommodate Mr Bartlett’s professional difficulties. We do not accept that this is factually correct. In fact Mr Bartlett and Mr Haggan each had other professional engagements which it would have been difficult to break. Each was available in one of the weeks, but neither was available in the week in which the other was available. The problem was not confined to the Crown. It was mutual. In addition the court and the judge had difficulty in finding a date. The details are:(a) Mr Bartlett was only available in the first week of November – transcript page 7 line 7;(b) Mr Haggan had another professional engagement in Rochdale during that week – information provided during the hearing – and there was one week in October when he had a course that he had to attend – transcript page 9 line 4. The week of 28th October was “one of the few weeks that I can do” – transcript page 12 line 9;(c) The judge was not sitting for one week in October – transcript page 9 line 3;(d) The judge was listed to sit to hear civil cases in the week of 28th October – transcript page 12 line 4 – but “whilst it is not immediately convenient to the court, doubtless arrangements could be made for your Honour’s civil to be transferred to another judge(e) We are told that the first week of November was not convenient to the court”.[36]Confronted with these difficulties, Mr Bartlett applied for the confiscation hearing to start then and there. Mr Haggan submitted that this sounded rather like a device such as has been deprecated in cases concerning custody time limits. He was also not professionally in a position to start the hearing because he had prepared for circumstances which had since changed. The defence had also been served with a substantial Supplementary Prosecution Statement the day before. There were questions of discovery and disclosure. The judge agreed that starting the hearing then would obviously be a device.[37]Mr Haggan also upon consideration withdrew the concession he had made earlier in the hearing when he had accepted that exceptional circumstances existed. Mr Bartlett submitted that there were exceptional circumstances. He complained that the Crown and the court were being manipulated. Having come to court to face the submission that the confiscation proceedings should be postponed until the end of Smith’s proceedings; “… all of a sudden, we are told that we must get it done within the six month period, knowing full well that there is only about 6 weeks or less in which to do it. Yet, in the same breath, the submissions are made that my learned friends have not had time to deal with the supplemental statement.” Mr Bartlett referred to this as cloud cuckoo land. He suggested that there should be a postponement to 12th November (4 days beyond the six month period), which was convenient to all counsel. What the judge in fact did was to direct that the hearing should start at 10.30 a.m. on 28th October for half a day, and that it should then be adjourned to 12th November when the proceedings would be heard to conclusion. He said that he could revisit the question of exceptional circumstances on 28th October, if that were necessary.[38]Mr Haggan and his junior arrived at court in Bournemouth at 8.30 a.m. on 28th October hoping to have a consultation with the appellant. The appellant, who was then detained inconveniently in Dartmoor prison, was not delivered to court until about 1 p.m. The hearing did not start until the afternoon, but a substantive start was made and there was a short half day hearing. Mr Bartlett opened the application on behalf of the Crown. The hearing was shorter than it might otherwise have been because the appellant had to leave court at 4 p.m. otherwise, as Mr Haggan put it, “he will be locked out of Dartmoor … and quite where he would be housed overnight is a matter for conjecture.” Mr Bartlett applied for the proceedings to be adjourned under the court’s common law power, notwithstanding that the adjournment would take the proceedings beyond the six month period. The judge said that he would exercise that jurisdiction and adjourned the proceedings to 12th November.[39]On 6th November 2002, Mr Bartlett, out of caution, applied to the judge to postpone the hearing, which had been started on 28th October, to 12th November on the basis of exceptional circumstances under section 72A of the Criminal Justice Act 1988. The application was opposed by Mr Harrison, who appeared that day on behalf of the appellant. He submitted that it was the prosecution’s decision to have the matter determined near the end of the six month period; and that the confiscation hearing could have taken place on 28th October and been completed that week, if Mr Bartlett had been available. The judge made his determination in these terms:
“I am satisfied, having heard the argument and having been referred to the authorities, that there are exceptional circumstances that justify my postponing the rest of the hearing to 12th November, which as I have already said is just outside the six month period. I am also satisfied that the prosecution still have to obtain information which is relevant and important information relating to the Abbey National cheques. It seems to me that had Neil Smith not pleaded guilty on 26th September the defence application to postpone outside the six month period would have succeeded and, as I have already said, the current difficulty would not have arisen. As a result of that change of circumstances it effectively became impossible for the hearing to be completed by 9th November, in other words, within the six months, and that, it seems to me, is something that could not possibly have been foreseen back in May.”
The Abbey National cheques, which the judge referred to, were further information relevant to the beneficial ownership of a house. The judge considered that the need for this information by itself was not an exceptional circumstance, but it added to the other factors. He said that, if he had not found exceptional circumstances, he would in any event have affirmed his decision to adjourn the hearing part heard under the court’s common law powers.[40]The confiscation proceedings against the appellant duly resumed on 12th November and a determination was made on 15th November.[41]Section 71 of the Criminal Justice Act 1988 as amended provides for the making of confiscation orders in the circumstances there set out. Section 72A provides:
“(1) Where a court is acting under section 71 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 amounts 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 sub-section (1) 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 sub-section (1) above which: (a) by itself; or (b) where there has been one or more previous postponements under sub-section (1) above or (4) below, when taken together with the earlier specified period or periods, exceeds six months beginning with the date of conviction.”
Sub-section (4) gives the court power to postpone determinations where the defendant appeals against his conviction. Sub-section (6) provides that any postponement under sub-section (4) shall not exceed the period ending 3 months after the date on which the appeal is determined or otherwise disposed of “unless the court is satisfied that there are exceptional circumstances”. (a) determining whether the defendant has benefited from any relevant criminal conduct; or (c) determining the amounts to be recovered in his case (a) by itself; or (b) where there has been one or more previous postponements under sub-section (1) above or (4) below, when taken together with the earlier specified period or periods,[42]The plain statutory purpose of these provisions relating to postponement is to ensure that confiscation determinations under this draconian legislation are made within a strictly limited period only to be exceeded exceptionally if it is really necessary that this should happen.[43]The provisions for postponement under this and related Drug Trafficking legislation have caused much trouble and generated numerous decisions. The leading case on the legislation generally is R v Sekhon and others [2002] EWCA Crim 2954, in which the judgment of the court was given by Lord Woolf LCJ. The judgment contains a comprehensive review of the legislation designed to enable the courts to confiscate the proceeds of crime. A series of cases had resulted in orders for confiscation of substantial sums being set aside for the failure to adhere to procedural requirements that are often of a technical nature. Lord Woolf reviewed successive amendments to the relevant sections of the Criminal Justice Act 1988, including what is now section 72A. There was a number of appeals before the court. They raised issues whether: i) the confiscation proceedings took place in accordance with the procedures set out in the 1988 Act, and, in particular, whether the sentencing judge properly postponed the confiscation hearing; and ii) if the confiscation proceedings did not take place in accordance with the procedures set out in the 1988 Act, whether the confiscation orders in each case were nevertheless lawfully made.[44]Lord Woolf noted that the purpose of rules of procedure is not usually to give or take away a court’s jurisdiction. It was submitted by Mr Perry on behalf of the prosecution that breaches of apparently absolute statutory requirements did not necessarily deprive the court of jurisdiction. He submitted that, if even the most trivial breach of an apparently absolute requirement had the effect of vitiating the relevant proceedings, the consequences would be out of all proportion. There is a distinction between mandatory and directory duties. Lord Woolf suggested that it would not have been the intention of Parliament to exclude the jurisdiction of the court in relation to the making of confiscation orders because of procedural defects of a technical nature that caused no injustice to the defendant. The court would only expect a procedural failure to result in a lack of jurisdiction if this was necessary to ensure that the criminal justice system served the interests of justice and thus the public, or where there was at least a real possibility of the defendant suffering prejudice as a consequence of the procedural failure. The court would not regard it as likely that Parliament would, for example, be concerned to deprive the court of jurisdiction because of defects in the contents of the written notice which is required by section 72(1) of the 1988 Act.[45]The court considered the case law. The cases included R v Steele and Shevki [2001] 2 Cr App R(S) 178, a case decided under the Drug Trafficking Act 1994. Judge LJ set out what should be the general approach relevant to the similar statutory provision which the court was considering. He said:
“Confiscation orders should normally form part of the ordinary sentencing process. For lack of appropriate information, this will often be impractical. If the conditions set out in section 3(1) or section 3(4) 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 expressed directions in the statute that save in exceptional circumstances confiscation determinations should not be postponed for more than 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.”
Lord Woolf said that this (and another judgment of Judge LJ in R v Cole (unreported) 97/3929/X4 of 22nd April 1998) made it clear that the consideration whether there should be a postponement of the confiscation proceedings and whether there are exceptional circumstances involve just the type of issue that courts regularly are required to determine when engaged in case management. The strict compliance with procedural requirements relating to issues of this nature would not normally be expected to go to jurisdiction. The provisions tell the judge the order in which he must deal with matters and the considerations he must have in mind. Any default by the judge can be satisfactorily dealt with on appeal when it is to be expected that the court would examine the circumstances and not focus on technicalities. The issue would be what did justice require having regard to the Parliamentary code.[46]The court then considered a number of other authorities. Having done so, Lord Woolf said at paragraph 48:
“… in our opinion all that is strictly required in order to give the court jurisdiction where a postponement is necessary is that there should be a decision to postpone. This requires no particular form of words. We are not persuaded that the statement of a period of postponement is critical for establishing jurisdiction. It is not a condition precedent for there to be jurisdiction. If there is a failure to specify then this could be a matter of complaint by appeal to the Court of Appeal after a confiscation order has been made. Then the Court of Appeal could, if justice so required, quash the confiscation order. If, however, no injustice was involved, the confiscation order would stand.”
[47]When the court came to consider individual appeals of four of the appellants, Lord Woolf said at paragraph 64 that, whereas other procedural requirements may not be critical, that there should be a postponement of the making of a confiscation order when there is power to do so is fundamental to the exercise of the jurisdiction to make a confiscation order. In the cases under consideration, the court accepted that the effect of non-compliance was intended by Parliament to go to jurisdiction subject to any possible argument as to waiver. There was no postponement or even purported decision to postpone until after the confiscation orders were made without jurisdiction. The orders had to be quashed.[48]We pause to remember that in the present appeal there was an explicit decision to postpone and that there has been no suggestion of any injustice to the appellant.[49]A later decision of this court is R v Soneji and Bullen [2003] EWCA Crim 1765, 20th June 2003. In that case, the trial judge, before sentencing the defendants, had formally postponed the confiscation hearing to a date which was outside the six month period mentioned in section 72A. On the day of the hearing, the prosecution requested a further postponement in the order of 3 months or more. The defendants objected to the confiscation proceedings on the basis that no proper application had been made within six months. The judge held that the original postponement order was a valid one. He referred to R v Steele and Shevki. He said that the purpose of the order was not to facilitate the obtaining of further information but to cope with a listing problem and “listing problems are not sadly exceptional circumstances”. It seemed to him to be fair to invoke the inherent powers of the court. The judge was satisfied that the common law power to adjourn was “still alive and well in such circumstances”.[50]On appeal to this court, Pill LJ gave the judgment of the court. He considered R v Sekhon and a number of other decisions. These included R v Ruddick [2003] EWCA Crim 1961, in which Rose LJ, Vice-President, said:
“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.”
Another case was R v Chuni [2002] 2 Cr App R 371, in which the judge who had tried and sentenced the defendant was not available due to illness and another judge adjourned the confiscation hearing to a date more than six months after the conviction. The case was complicated and the defendant consented to the adjournment. This court said that this represented an exception to the statutory assumption. The court was satisfied, that the judge, in postponing the matter for a period which took it beyond the six month period, was acting lawfully.[51]In R v October [2003] EWCA Crim 452, Scott Baker LJ, giving the judgment of the court, referred to cases cited with approval as Sekhon in supporting the proposition that the Crown Court retains a general power to postpone or adjourn confiscation proceedings. He identified a common law power to adjourn, parallel with the statutory power of postponement. He concluded that the court in the case before him had exercised its common law powers, but applied the test prescribed by the statute.[52]The court in Soneji said that the requirement for exceptional circumstances had thus been imported into the exercise of the common law power. The judgment continued at paragraph 24:
“Thus whether a power to postpone beyond six months from conviction is purported to be exercised under statutory powers or common law powers, there must be a finding of exceptional circumstances. A broad approach may be taken to the question of what may amount to exceptional circumstances (Steele and Shevki) and the expression “exceptional circumstances” need not be used (Chuni) but consideration of the reasons for postponement and a conclusion following that consideration which amount to a finding of exceptional circumstances are required.”
[53]In Soneji there was no inquiry relating to listing difficulties such as could justify a finding that exceptional circumstances had been established. The judge had acknowledged more than once that there were not exceptional circumstances. Even if the judge’s finding might be construed as making a general point that listing difficulties are not an exceptional event, so that it might be said that the use of the expression was not itself fatal, the absence of any judicial enquiry and finding upon the circumstances meant that the requirement was not satisfied. The court then said at paragraph 27:
“Failure to address the question whether the circumstances could properly be described as exceptional and to make a finding to that effect is in our judgment fatal to the upholding of these confiscation orders. We would respectfully seek to sustain the principle that confiscation orders should not be quashed for mere defects in procedure. To give effect to the requirement that there must be exceptional circumstances, and if the expression is not to be a mere incantation, however, inquiry into the circumstances and the possibility and feasibility of a timely hearing, is required. The failure to address the question whether the general time limit of six months could be met, and the accompanying failure to find exceptional circumstances, was not in the same category as the defect in Palmer. To overlook these failures would be to nullify the statutory intention upheld in the cases. It is unfortunate when a confiscation order has to be quashed for defects such as these but it does not serve “the interests of justice and thus the public”, to adopt the expression used by Lord Woolf CJ in Sekhon, if the requirement for the existence of exceptional circumstances to justify a postponement beyond six months, is just ignored.”
The court concluded that “a threshold of difficultness” must be crossed.[54]In the present case, the hearing of the confiscation proceedings started within the six month period. The hearing on 28th October 2002 was not a mere token. It had been fixed for half a day starting in the morning. It in fact started in the afternoon because the appellant was delivered to the court from prison late and the hearing had to be abbreviated somewhat because he needed to return to a distant prison by a particular hour. We do not need to decide whether a token start only within the six month period could contribute to compliance with the statutory requirement. Our strong inclination is that it would not. We do need to decide whether a substantive start to the confiscation hearing within the six month period by itself complies with the statutory requirement. If it does, this appeal fails at the first hurdle.[55]The question turns on the meaning of “determining” and “determination” in section 72A of the 1998 Act. We suspect that judges and parties habitually suppose that they are concerned to fix a date for hearing within the six month period. It may be thought that, if that is done, there will be compliance with the section even if the hearing lasts more than one day and is not concluded until after the six month period has ended. It is to be supposed that Parliament contemplated the possibility of confiscation hearings taking more than one day, possibly many days, although we have seen no positive indication that this is so. During the hearing of this appeal, members of this court were strongly inclined to think that the section on its proper construction required no more than that the six month period should be judged by reference to the start of the hearing of the confiscation proceedings. We are, however, with some reluctance persuaded that “determining” and “determination” cannot be so construed.[56]In R v Tuegel [2000] 2 Cr App R 361, Rose LJ, giving the judgment of the court, said at page 388B:
“However, although we express no concluded view, we doubt the correctness of Mr Garlick’s submission that “determining” in section 72A is a continuing process and, provided it is embarked upon within six months of conviction, this is sufficient to satisfy the six-month requirement of section 72A(3).”
We consider on reflection that the words “determining” and “determination” connote the end of the process, that which the court eventually decides. A substantive start to a hearing within the six month period which is adjourned beyond that period does not achieve a determination within the six month period.[57]This means that Parliament has imposed on the court and the parties a time constraint which, if it were absolute, might in particular cases be distinctly inconvenient and even positively unjust. Unless there is some degree of flexibility, absurd circumstances might arise which we cannot believe Parliament intended. A hearing estimated to take two days might occasionally take two weeks. Are the court and the parties obliged to set aside all other court commitments, however important they may be, to cram a confiscation hearing into an excessively confined period? The answer, of course, in literal terms could be yes, so that the court and the parties have got so to arrange things that problems of this kind do not arise. There is a clear Parliamentary intention that confiscation determinations should take place within the six month period unless there are exceptional circumstances. But we doubt whether it was the Parliamentary intention that all other court commitments, for example murder or rape trials, should if necessary be subordinated to confiscation determinations. Other problems would be if the judge or the defendant’s counsel were ill; if, as happened in the present case, the defendant was not delivered on time from the prison; if evidence to be called on behalf of the defendant was going to overrun the six month period; or if the judge reasonably required time to consider and compose a written judgment. Mr Haggan accepted that some at least of these, depending on all the circumstances, would be likely to qualify as exceptional circumstances justifying a postponement or an adjournment.[58]Another question is whether, if there is a substantial start to a confiscation hearing within the six month period but the hearing has to be adjourned, the considerations relating to such an adjournment are the same as those which relate to the common law power of adjournment considered by the authorities. The authorities have concerned cases where the entire substantive hearing has been adjourned before it has started. The judge in the present case reckoned that, once there had been a substantive start, he had power to adjourn the hearing unconstrained by section 72A. Mr Haggan submits that he did not have this power. He further submits that, in fixing a short first hearing and at the same time announcing an intention to adjourn it to a date after the end of the six month period, the judge was adopting an illegitimate device to circumvent the statute.[59]This question is linked to the question whether the section requires the determination to be concluded within the six month period, unless there are exceptional circumstances. We have decided earlier in this judgment that it does. We consider that it follows that the same considerations apply to the adjournment of a hearing which has started, as to the postponement or adjournment of the entire substantive proceedings. The parliamentary intention is that, unless there are exceptional circumstances, the hearing is to be concluded and the determination made within the six month period. We do not consider that starting the hearing on 28th October for a substantial, but limited, period was simply a device. But we do consider that the judge’s order on 26th September 2002 that the hearing should start on the 28th October and then resume on 12th November should be seen as a postponement or adjournment of the determination until the conclusion of the hearing to be resumed on 12th November. Authority requires that there had to be exceptional circumstances for this. Authority also indicates that a broad approach may be taken to the question of what may amount to exceptional circumstances.[60]Sekhon decides that there has to be a judicial decision embodied in an order to adjourn or postpone if the court is to have jurisdiction to make a confiscation determination outside the six month period. There was such a decision and order in the present case. Soneji decides there has to be a considered judicial finding of exceptional circumstances. There was such a finding in the present case. Sekhon indicates that procedural technicalities, apart from the two we have indicated, do not go to jurisdiction. The case also indicates that procedural technicalities which cause no injustice do not exclude the court’s jurisdiction. There was no injustice in the present case. If, as in the present case, the judge both makes a decision to adjourn or postpone and concludes that there are exceptional circumstances, that is a composite discretionary decision. It is open to a defendant to challenge such a decision in this court, but this court will not interfere with such a decision, especially where there is no injustice, unless the judge made an error of law or was otherwise plainly wrong.[61]The essential grounds of appeal advanced on behalf of the appellant by Mr Haggan are:(a) the Crown’s case that there were exceptional circumstances was fundamentally flawed. It was based on an illogical reversal of the Crown’s previous position. Until 26th September 2002, the Crown had contended that there were no exceptional circumstances, such as until then were being advanced on behalf of the appellant, and that the confiscation proceedings should be heard and determined forthwith within the six month period. The change of circumstances which occurred when Smith pleaded guilty did not alter that.(b) listing difficulties are not exceptional circumstances. It was listing difficulties alone which led to the postponement or adjournment until after the end of the six month period.(c) the listing difficulties were, or were mainly, those of Mr Bartlett appearing for the Crown. It was the Crown’s obligation to overcome these difficulties. The proceedings could and should have been heard and determined in the week of 28th October 2003.[62]The third of these contentions was much emphasised in Mr Haggan’s written submissions. We have already indicated that we reject it. It was not in our judgment factually correct that the listing difficulties were mainly Mr Bartlett’s. The court, Mr Haggan and Mr Bartlett all had difficulties. So far as Mr Bartlett was concerned, the hearing could have taken place in the first week of November, but Mr Haggan was otherwise engaged during that week. The court also had difficulties in that week. It was not realistically just that either party should be represented by alternative counsel, when Mr Haggan and Mr Bartlett had been engaged in the proceedings throughout, including the 9 week trial during the spring of 2002. Nor in our judgment was the court obliged to put aside or disrupt literally any other commitment, however important, to promote these confiscation proceedings.[63]In our judgment, a bald proposition that, whatever the circumstances, listing difficulties are incapable of being exceptional circumstances would be wrong. The mere convenience of counsel, witnesses or the court would certainly not justify a postponement or adjournment of any significance on the ground that the circumstances were exceptional. The plain policy of the legislation must be faithfully adhered to and every effort must be made to conclude the confiscation proceedings and make the appropriate determinations within the six month period. Courts and the parties must be alert to the danger of time slipping away and timetables should not generally be set which risk overrunning the period. It may well be necessary for counsels’ other commitments to be interfered with, for witnesses to be inconvenienced, and for the court to promote confiscation hearings at the expense of other business. The provisions of the statute mean that a timetable to achieve the determinations within the six month period must be set and adhered to in the large majority of cases. But there may be a small minority of cases in which in all the circumstances difficulties with dates cannot justly be accommodated without a modest overrun. These rare cases will be capable of constituting exceptional circumstances and, if no injustice results, a technical objection would not be sustained. As was indicated in paragraph 25 of the judgment of this court in Soneji, there has to be a proper and sufficient judicial inquiry to justify a finding that exceptional circumstances have been established. The say-so of the listing officer is insufficient. Judges who apply this principle should not fall into the habit of assuming that an overrun of a few days will normally be acceptable. It will not. In particular, they should not assume that an overrun to enable them to compose a written judgment will normally be acceptable. On the other hand, a need to overrun by a few days where, upon proper investigation, no other solution is reasonably and justly possible, is rather more likely to be justified as exceptional circumstances than a much longer overrun. This may be so, not least because the likelihood of injustice increases with the length of any overrun.[64]In our judgment, the judge in the present case was entitled to conclude, for the reasons which he gave, that the very short adjournment or postponement which his order provided for was justified by the existence of exceptional circumstances within the statute. By 26th September 2002, the combination of listing problems was severe and proper efforts appear to have been made to overcome them. The timetable up to 26th September could certainly have been set more tightly. But it would, in our judgment, defeat, rather than promote, the parliamentary intention, that proceeds of crime should be confiscated, to hold that the subsequent proceedings were incompetent because a shorter antecedent programme could have been devised. The court had to treat matters as they were on 26th September. One factor then was that Smith had just pleaded guilty. The anticipated complexion of the appellant’s confiscation proceedings had substantially changed. We may suppose that the reality was that, although the Crown was forensically obliged to oppose the appellant’s application to postpone, the expectation was that it would succeed and that the appellant’s confiscation proceedings would be postponed until after the conclusion of Smith’s trial. The listing difficulties, which were severe, were fully and properly explored and the court arrived at a just solution which in substance achieved the parliamentary intention. The appeal to this court is based on mere technicality and otherwise has no merit.[65]For these reasons, we dismiss the appeal against the confiscation order.