"In this application the prosecution apply for the Proceeds of Crime Act hearing in this case to be heard outside of the permitted period. Although not stated as such, the application must be pursuant tosection 14(8) of the Proceeds of Crime Act 2002 ."
"A period of postponement (including one as extended) must not end after the permitted period ends."
"On the defendants' appeal against those orders, the Court of Appeal (Criminal Division) held that although there was a power to postpone the making of a confiscation order under section 72A of the 1988 Act, and a power to adjourn such proceedings at common law, the provision of section 72A(3) that the period of postponement was not to exceed more than six months from the date of conviction save where the court was satisfied that exceptional circumstances existed, and the failure of the judge to consider or make any such finding, had deprived him of jurisdiction to make a confiscation order. The Court of Appeal accordingly quashed the confiscation orders. .... Held, allowing the appeal, that the correct approach to an alleged failure to comply with a provision prescribing the doing of some act before a power was exercised was to ask whether it was a purpose of the legislature that an act done in breach of that provision should be invalid; that since section 71(1) of the 1988 Act as amended imposed a duty on the court when an offender had been convicted to consider confiscation proceedings, with the purpose of the sequence of such proceedings as required by section 71(1) and the postponement power under section 72A, which precluded any common law power of adjournment, being to make the sentencing process rather than the confiscation procedure as effective as possible; that the judge's failure to adhere to the requirements of section 72A(3) had caused no prejudice to the defendants in respect of their sentences and any other prejudice to them caused by the delay was outweighed by the public interest in not allowing convicted offenders to escape confiscation for bona fide errors in the judicial process; and that, accordingly, that failure would not have been intended by Parliament to invalidate the confiscation proceedings, and the confiscation orders made by the judge would stand."
"designed to stop confiscation orders from being quashed merely because some procedural error has taken place in the application of the postponement procedures. I shall, if I may, provide your Lordships with a little background on this occasion, as it is directly relevant to the amendments. As your Lordships will be aware, the Bill amends the postponement regime in the existing legislation .... It is important to understand, however, that the basic mechanics of the postponement regime envisaged by the Bill remain rather similar to those in the existing legislation. Unfortunately, it is becoming increasingly clear that the courts are finding this legislation difficult to operate. A string of appeal cases testifies to the fact that defendants regularly attempt to have the confiscation order overturned on the grounds that the postponement procedures were not applied properly by the court. Confiscation orders are being lost as a result."
"When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. .... At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for a declaration of his rights."
"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."
"Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court [a reference to authority he had just digested] that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, as held in Attorney General's Reference (No 3 of 1999), the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction. In my view it follows that the approach of the Court of Appeal was incorrect."
"When section 71(1) is engaged, it imposes a duty on the court to act as required by subsections (1A) and (1B) and, where appropriate, to make a confiscation order 'before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct'. This duty is to be contrasted with the mere power, which the court has under subsection (1C), to make such an order if it is satisfied that a victim of crime intends to take civil proceedings against the defendant."
"I also agree, however, that 'exceptional circumstances' in section 72A(3) should not be interpreted too narrowly. The court must comply with the six-month requirement wherever reasonably possible, even if this means that its timetable has to be adjusted accordingly. Nevertheless, I would certainly not rule out the possibility that some listing difficulties could amount to 'exceptional circumstances'. But the judge must look into the position and see what can and cannot be done."
"Since the statute does not spell out the legal consequences for the offenders of non-compliance with subsection (3) it is necessary to work out those consequences, applying the authorities to which the noble and learned Lord Steyn has referred. The failure to comply .... has to be seen in the light of the purposes of the statutory provisions as a whole, in order to determine whether or not the failure was of such significance as to make the ensuing confiscation orders of no effect."
"The issue is a narrow one. Absent a court order before10 January 2008 postponing the hearing of the application for a confiscation order, and absent any application made before that date to postpone the hearing, is there jurisdiction to entertain the application for a confiscation order?"
"25. Mr Farrell QC submits that the intention of Parliament was that the application for a confiscation order should be heard within two years of conviction in the absence of exceptional circumstances and that the intention of Parliament is clear: 'If there has been no application to extend the permitted period of two years before that period expired then the confiscation proceedings cannot continue'. 26. In our view the wording of section 14 (and in particular of subparagraphs (3) and (8)) makes it quite clear that Parliament intended to give prosecutors a longer period than the six months under the earlier legislation, but at the same time intended to make it clear that any application to extend a period of postponement had to be made before the permitted period expired. 27. For these reasons we dismiss the appeal."
"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."