Guraj, R v [2015] EWCA Crim 305

Case No 201403127 B5[2015] EWCA Crim 305
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
HIS HONOUR JUDGE LORRAINE-SMITH
T20117675
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/03/2015
Before
LORD JUSTICE JACKSONMR JUSTICE MITTINGMR JUSTICE JAY
Between
REGINARespondentLODVIK GURAJAppellant
Ms Kitty St Aubyn (instructed by Faradays Solicitors) for AppellantMr Edward Franklin (instructed by The Crown Prosecution Service) for RespondentHearing Hearing date: 6 th February 2015
JudgmentLord Justice Jackson (delivering the judgment of the court):
[1]This judgment is in five parts, namely: Part 1. Introduction Paragraphs 2 to 7 Part 2. The facts Paragraphs 8 to 20 Part 3. The appeal to the Court of Appeal Paragraphs 21 to 25 Part 4. The law Paragraphs 26 to 49 Part 5. Decision Paragraphs 50 to 59

Part 1. Introduction

[2]This is an appeal by a criminal against an order for confiscation on the grounds of serious non-compliance by the prosecution with the procedural requirements contained in the Proceeds of Crime Act 2002 (“POCA”).[3]This appeal raises a short but important issue. The issue is whether a substantial breach of section 15 (2) of POCA in conjunction with a substantial breach of section 14 has the effect of rendering the subsequent confiscation proceedings invalid, even if they are completed within two years. The breach of section 15 (2) is significant because that triggers the operation of section 14 (12) and prevents the prosecution from relying upon section 14 (11).[4]We must first set out the relevant statutory provisions. We shall refer to the Misuse of Drugs Act 1971 as “the 1971 Act”. Section 27 (1) of the 1971 Act provides:
“Forfeiture Subject to subsection (2) below, the court by or before which a person is convicted of an offence under this Act or an offence falling within subsection (3) below or an offence to which section 1 of the Criminal Justice (Scotland) Act 1987 relates, may order anything shown to the satisfaction of the court to relate to the offence, to be forfeited and either destroyed or dealt with in such other manner as the court may order.”
[5]We shall refer to the Criminal Justice Act 1988, as amended by the Proceeds of Crime Act 1995, as “the 1988 Act”. Until 23rd March 2003 the 1988 Act contained the following provisions: “Section 71(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 for it so 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. …. Section 72A (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 amount 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 subsection (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 subsection (1) above which — (a) by itself; or (b) where there have been one or more previous postponements under subsection (1) above or(4) below, when taken together with the earlier specified period or periods, exceeds six months beginning with the date of conviction. (4) Where the defendant appeals against his conviction, the court may, on that account — (a) postpone making any of the determinations mentioned in subsection (1) above for such period as it may specify; or (b) where it has already exercised its powers under this section to postpone, extend the specified period.(5) A postponement or extension under subsection (1) or (4) above may be made — (a) on application by the defendant or the prosecutor; or (b) by the court of its own motion.(6) Unless the court is satisfied that there are exceptional circumstances, any postponement or extension under subsection (4) above shall not exceed the period ending three months after the date on which the appeal is determined or otherwise disposed of.(7) Where the court exercises its power under subsection (1) or (4) above, it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the offence or any of the offences concerned.(8) Where the court has so proceeded — (a) subsection (1) of section 71 above shall have effect as if the words from ‘before sentencing’ onwards were omitted; (b) that subsection shall further have effect as if references to an offence that will be taken into consideration in determining any sentence included references to an offence that has been so taken into account; and (c) section 72(5) above shall have effect as if after ‘determining’ there were inserted ‘in relation to any offence in respect of which he has not been sentenced or otherwise dealt with’.” (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 for it so to proceed,

Section 72A

[6]With effect from 24th March 2003 POCA provided as follows:
“13. Effect of order on court’s other powers (1) If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned. (2) The court must take account of the confiscation order before— (a) it imposes a fine on the defendant, or (b) it makes an order falling within subsection (3). (3) These orders fall within this subsection— (a) an order involving payment by the defendant, other than an order under section 130 of the Sentencing Act (compensation orders); … (b) an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders); (c) an order under section 143 of the Sentencing Act (deprivation orders); (d) an order under section 23 or 23A of the Terrorism Act 2000 (c. 11) (forfeiture orders). (4) Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant. … 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; (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. (12) But subsection (11) does not apply if before it made the confiscation order the court— (a) imposed a fine on the defendant; (b) made an order falling within section 13(3); (c) made an order under section 130 of the Sentencing Act (compensation orders). … 15. Effect of postponement (1) If the court postpones proceedings under section 6 it may proceed to sentence the defendant for the offence (or any of the offences) concerned. (2) In sentencing the defendant for the offence (or any of the offences) concerned in the postponement period the court must not — (a) impose a fine on him, (b) make an order falling within section 13(3) (c) make an order for the payment of compensation under section 130 of the Sentencing Act. …” (a) it imposes a fine on the defendant, or (b) it makes an order falling within subsection (3). (a) an order involving payment by the defendant, other than an order under section 130 of the Sentencing Act (compensation orders); … (b) an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders); (c) an order under section 143 of the Sentencing Act (deprivation orders); (d) an order under section 23 or 23A of the Terrorism Act 2000 (c. 11) (forfeiture orders). (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. (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), (a) on application by the defendant; (b) on application by the prosecutor; (c) by the court of its own motion. (a) proceedings are postponed for a period, and (b) an application to extend the period is made before it ends, (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. (a) imposed a fine on the defendant; (b) made an order falling within section 13(3); (c) made an order under section 130 of the Sentencing Act (compensation orders). (a) impose a fine on him, (b) make an order falling within section 13(3) (c) make an order for the payment of compensation under section 130 of the Sentencing Act. …”
[7]We shall refer to the Crown Prosecution Service as “CPS”. After these introductory remarks, we must now turn to the facts.

Part 2. The facts

[8]On 12th July 2012 at Southwark Crown Court the appellant pleaded guilty to three counts of a six-count indictment. The offences to which the appellant pleaded guilty were 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 329 of POCA (money laundering).[9]On 16th July 2012 the appellant appeared for sentence before Her Honour Judge Taylor at Southwark Crown Court. On that occasion there was before the court an application by the prosecution for forfeiture pursuant to section 27 (1) of the 1971 Act. There was also an application by the prosecution for confiscation pursuant to section 6 of POCA.[10]The judge sentenced the appellant to five years, four months imprisonment in respect of the offences. She made an order for forfeiture under section 27 of the 1971 Act in respect of the following items: laptop computer, Apple iphone, Samsung phone, three further phones and a Ford motor car. The judge ordered forfeiture and destruction of the drugs which had been seized.[11]In relation to the application for confiscation, the judge did not immediately proceed under section 6 of POCA. Instead, she made a postponement order under section 14. The judge set the following timetable: i) The appellant to serve a statement of his assets and means pursuant to section 18 of POCA by 13th August 2012. ii) The prosecution to serve its statement of information pursuant to section 16 of POCA by 12th October 2012. iii) The appellant to serve his response pursuant to section 17 of POCA by 9th November 2012. iv) A half day hearing to take place two weeks thereafter.[12]The appellant served his statement of assets and means on 18th September 2012. Unfortunately thereafter the CPS let matters lapse, apparently due to various staff changes and the temporary loss of the file.[13]On 7th January 2014 the case was listed before His Honour Judge Robbins. The prosecution applied for an adjournment, because counsel was not adequately instructed. The judge directed the prosecution to serve its section 16 statement by 7th February 2014. The judge also made a wasted costs order against the CPS in the sum of £500. This was because the prosecution had failed to comply with the order of 16th July 2012, the officer in the case had failed to attend the hearing on 7th January and that hearing was largely wasted.[14]On 15th January 2014 the prosecution served their statement of information pursuant to section 16 of POCA. On 25th January 2014 the prosecution served a revised version of that statement.[15]Discussion followed between the parties about the revised timetable for the confiscation proceedings.[16]On 31st March 2014 the case was listed for mention. No counsel appeared for the prosecution, because of a misunderstanding within the CPS.[17]On 30th April 2014 the defence served a skeleton argument contending that because of the delays and non-compliance by the prosecution, the confiscation proceedings had lapsed and the court no longer had power to make a confiscation order. HHJ Lorraine-Smith heard argument on this issue at two hearings on the 2nd and 7th May 2014.[18]At the hearing on 7th May 2014 HHJ Lorraine-Smith ruled that the prosecution was still entitled to pursue the confiscation proceedings, for reasons to be given later. The judge set a new timetable for the litigation, leading to a confiscation hearing on 9th June 2014. He also made a wasted costs order against the prosecution in respect of the hearing on 31st March.[19]On the 9th June 2014 the confiscation hearing took place. On that date the judge delivered his reserved judgment setting out the reasons for his decision (announced on 7th May) that the confiscation proceedings should go forward. The judge then proceeded to make a confiscation order, incorporating figures for benefit and recoverable amount which had been agreed between the parties.[20]The appellant was aggrieved by the making of the confiscation order. Accordingly he appealed to the Court of Appeal.

Part 3. The appeal to the Court of Appeal

[21]Miss Kitty St Aubyn for the appellant accepts that the judge made an effective order postponing the confiscation proceedings on 16th July 2012. That period of postponement ended in December 2012. The court failed to make any further order for postponement between then and 2014. By 2014, says Miss St Aubyn, the court no longer had the power to make any order for postponement by reason of section 14 (8) of POCA.[22]Miss St Aubyn argues that section 14 (11) cannot avail the prosecution in this case, because the court wrongly made a forfeiture order on 16th July 2012. Therefore section 14 (12) applies.[23]Mr Edward Franklin for the prosecution resists these submissions. He points out that the confiscation order was made within the two-year period specified in POCA section 14 (5). The well established approach of the courts is to uphold confiscation proceedings, rather than strike them down for technical errors.[24]In support of their competing submissions both counsel have taken the court through the recent authorities on sections 13 to 15 of POCA and the predecessor provisions, contained in sections 71 to 72A of the 1988 Act.[25]Before we grapple with the issues raised in this appeal, we must first review the law.

Part 4. The law

[26]On 21st July 2005 the House of Lords gave its decision on two confiscation cases arising under the 1988 Act. The postponement provisions in that Act did not contain the equivalent of what are now section 14, sub-sections (11) and (12) of POCA. The two cases are R v Knights [2005] UKHL 50; [2006] 1 AC 368 and R v Soneji [2006] 1 AC; [2005] UKHL 49; [2006] 1 AC 340.[27]In Knights two defendants were charged with being concerned in dealing with goods on which customs duty had not been paid, with intent to defraud. The first defendant changed his plea to guilty on 10th July 2000. The second defendant was convicted by the jury on 12th October 2000. On 17th October the judge sentenced both defendants to terms of imprisonment, but postponed the confiscation proceedings pursuant to section 72A of the 1988 Act. On 4th January 2001 the judge adjourned the confiscation proceedings to 23rd January. He held that his own unavailability constituted “exceptional circumstances” within section 72A (3), thus allowing further postponement beyond the six-month time limit.[28]The two defendants appealed against the confiscation orders made, on the grounds that the judge had acted outside his statutory powers. Both the Court of Appeal and the House of Lords dismissed the appeals. The House of Lords held that the judge had not complied with the requirements of section 72A, but that did not invalidate the confiscation orders made. At paragraph 22 Lord Brown stated:
“Provided only that in postponing the proceedings the judge had acted in good faith and in the purported exercise of his section 72A power, I cannot think that Parliament would have intended such an error to disable the court from discharging its statutory duty to complete the confiscation proceedings against the offender.”
Lord Steyn, Lord Rodger, Lord Cullen and Lord Carswell agreed with Lord Brown.[29]In Soneji the defendants were charged with conspiracy offences. The first defendant pleaded guilty on 24th March 2000 and the second defendant pleaded guilty on 3rd April 2000. On 21st June the prosecution served notice under section 71 (1) (a) of the 1988 Act, initiating confiscation proceedings. Thereafter the judge sentenced both defendants to terms of imprisonment. On 28th January and 7th February 2002 the judge made confiscation orders against the defendants. The Court of Appeal quashed the confiscation orders, because the period of postponement had exceeded six months and the judge had not made a finding of exceptional circumstances.[30]The House of Lords allowed an appeal by the prosecution and restored the confiscation orders. Lord Steyn gave the leading speech, with which Lords Carswell and Brown agreed. He noted that recent authority had moved away from the simple question whether the statutory requirements in issue were mandatory or directory. The court should instead focus on the question whether Parliament intended the consequences of non-compliance to be total invalidity of what followed: see [15]-[23]. Adopting that approach, the non-compliance with section 72A in the present case did not render the subsequent confiscation proceedings invalid.[31]Lord Rodger in his concurring speech (with which Lord Steyn and Lord Brown agreed) stated that the purpose of section 71 (1) was to make the sentencing process as effective as possible in a system in which confiscation orders had primacy: [36]. At [41] he explained that the six-month time limit was a protection which Parliament had built into the legislation. He then added:
“But it is a protection for the public interest represented by the prosecution, as well as for the defendant's interest, since the time-limit applies where the court considers it requires further information, irrespective of whether the information is designed to clarify a matter that is favourable to the Crown or to the defence. Presumably, Parliament was concerned that, in the absence of a time-limit, matters might tend to drift once the sentencing was over.”
This led Lord Rodger to the conclusion that, despite the non-compliance with section 72A, in that case the confiscation orders were valid.[32]Lord Carswell in his concurring speech maintained that the traditional dichotomy between mandatory and directory provisions still had value. The principles enshrined in the cases discussing that dichotomy would assist in applying the new approach stated by Lord Steyn: [63]. He added that the doctrine of substantial performance was also relevant. At [67] he stated:
“I would not regard it as justified to extend the time limit indefinitely, for I do not think that Parliament would have so intended. Nor would it be sufficient to ask merely if it would be fair and reasonable to accept the validity of an act done out of time. I would suggest that one should ask if there has been substantial observance of the time limit. What will constitute substantial performance will depend on the facts of each case, and it will always be necessary to consider whether any prejudice has been caused or injustice done by regarding the act done out of time as valid.”
Lord Carswell noted that this approach would lead to the same answer as the approach which Lord Steyn had formulated.[33]In Donohoe [2006] EWCA Crim 2200; [2007] 1 Cr App R (S) 88 at Preston Crown Court on 10th December 2004 the defendant pleaded guilty to three charges of possessing a controlled drug with the intent to supply. On the same occasion the prosecution applied for a confiscation order pursuant to section 6 of POCA. Pursuant to section 14 of POCA the court postponed the confiscation proceedings pending the trial of a co-accused.[34]On 27th January 2005 Miss Recorder Nicholls sentenced the defendant to five years imprisonment and made an order under section 27 of the 1971 Act for the forfeiture and disposal of the drugs seized. The recorder ought not to have made that or any order under section 27 of the 1971 Act during the period when confiscation proceedings were on foot but had been postponed: see sections 13 (3) (b) and 15 (2) (b) of POCA. Be that as it may, the next event was that on 16th March 2006 His Honour Judge Slinger further postponed the confiscation proceedings. His Honour Judge Cornwall subsequently ordered yet another postponement, so that the parties could lodge skeleton arguments on the question whether, in the circumstances, the court had jurisdiction to make a confiscation order. On 25th October 2005 HHJ Cornwall ruled that the court still had jurisdiction to make a confiscation order and he proceeded to make such an order.[35]The Court of Appeal upheld the judge’s order. McCombe J, giving the judgment of the court, noted the contravention of section 15 (2) and the obvious relevance of section 14 (11) and (12). Nevertheless he held that it would be frustrating the object of POCA to treat these matters as depriving the court of the power to make a confiscation order. McCombe J left open the question whether the impermissible order for forfeiture made on 27th January 2005 was a nullity. He held that it would defy common sense if the existence of that order prevented the court from hearing the postponed confiscation proceedings.[36]In R v Iqbal [2010] EWCA Crim 376; [2010] 1 WLR 1985 on 10th January 2006 at Bradford Crown Court the defendant pleaded guilty to the offence of conspiring to supply heroin. On 5th June 2006 the court sentenced the defendant to twelve years imprisonment (later varied to nine years). The prosecution then asked the court to proceed under section 6 of POCA. The court made orders postponing the confiscation proceedings until 21st May 2007. On that date the court sentenced a number of the defendant’s fellow conspirators. Thereafter nothing happened in relation to the defendant until 1st July 2009, when the matter came back before the court. By then three and a half years had elapsed since the date of the defendant’s conviction. His Honour Judge Scott held that the court had no jurisdiction to make a confiscation order. The Court of Appeal upheld that decision. Hooper LJ doubted that the court had power to make a confiscation order after expiry of the two-year period specified in section 14 (5). Even if there was such a power, however, he held that the failure by the prosecution to apply to the court for an extension before the end of the two-year period was fatal under section 14 (8): see [16] to [26].[37]In R v Neish [2010] EWCA Crim 1011; [2011] 1 CR App R (S) 33 at Newcastle Crown Court the defendant pleaded guilty to offences relating to the supply of drugs. On 12th June 2009 His Honour Judge Evans sentenced the defendant to a term of imprisonment. He made an order postponing confiscation proceedings under section 14 of POCA and set a timetable for those proceedings, leading up to a hearing on 11th December 2009. On 2nd December the judge discovered that he would be unavailable on 11th December and instructed the listing officer to re-list the hearing on a date convenient to himself and the advocates. The listing officer duly re-listed the hearing for 4th January 2010. At the hearing on 4th January the judge accepted a defence submission that the court had no power to make a confiscation order, because there had been no judicial decision to postpone the proceedings beyond 11th December.[38]The Court of Appeal reversed that decision. Lord Judge CJ, delivering the judgment of the court, noted that listing was a judicial function. In this case the judge had given instructions to the listing officer and that officer had fixed a new hearing date. That process constituted a judicial decision to extend the period of postponement.[39]In reaching this conclusion Lord Judge CJ stated two important principles at [18]. The first was this:
“… unless the continuation of confiscation proceedings would contravene an unequivocal statutory provision, there is no reason why technical errors which cause no prejudice to the defendant should prevent their continuation.”
The second principle was that section 14 (12) was an express statutory prohibition, which it was not open to the court to ignore.[40]We are bound to say that it is not immediately obvious how the second principle stated by Lord Judge should be reconciled with the Court of Appeal’s earlier decision in Donohoe. It appears that Donohoe was not cited in Neish. We shall return to this issue later.[41]In R v Johal [2013] EWCA Crim 647; [2014] 1 WLR 146 on 12th March 2009 at Wolverhampton Crown Court the defendant pleaded guilty to possessing a class A controlled drug with intent to supply. On 18th December 2009 the court sentenced the defendant to six years imprisonment and set a timetable for confiscation proceedings. Over the next two years there was a series of delays and mishaps including, on one occasion, heavy snow which prevented the defendant being brought from prison to court. In early March 2011 the court stood out a hearing which had been fixed for 11th March (the last day of the two-year period) owing to lack of court time. There were subsequent disputes about skeleton arguments and there was a hearing on 22nd July 2011, when the case was listed for mention. Finally the procedural issues came on for hearing before Mr Recorder Desmond on 30th September 2011. The recorder granted an application by the prosecution for the confiscation proceedings to continue outside the two year period specified in section 14 (5) of POCA, on the ground that there were exceptional circumstances. On 16th May 2012 His Honour Judge Hughes made a confiscation order, against which the defendant appealed.[42]The Court of Appeal dismissed the appeal and upheld the confiscation order. Irwin J, giving the judgment of the court, reviewed the authorities and concluded that a broad approach should be taken to what constitutes “exceptional circumstances” within the meaning of POCA section 14 (4): see [39]. He added that, in relation to section 14 generally, “Parliament’s intention must be taken to be to ensure that confiscation proceedings go ahead and are effective without technical problems of timing and timetabling acting as a bar to recovery”. Irwin J went on to hold that there was a sufficient factual basis for the recorder’s finding that there were exceptional circumstances.[43]Irwin J then turned to the fact that the recorder’s order of 30th September 2011 did not actually specify a period of postponement. He concluded that this defect did not render the subsequent confiscation order invalid: see [45]. Alternatively, since the failure was procedural, POCA section 14 (11) operated to save the validity of the confiscation[44]Let us now stand back from this morass of case law and see what principles can be discerned. First, as the courts have noted, there is a clear Parliamentary intention that confiscation proceedings should take priority over other proceedings against a defendant concerning forfeiture, deprivation of property or orders for payment. Secondly, as the courts have noted, there is a clear Parliamentary intention that confiscation proceedings should move forward expeditiously. The various time limits are there in order to ensure that confiscation proceedings do not simply drift after sentence has been passed. Thirdly, there is a clear Parliamentary intention that confiscation proceedings should not be invalidated by procedural errors. Section 14 (11) says this expressly, but that provision is qualified by section 14 (12). A strong Court of Appeal has held that section 14 (12) is an express statutory prohibition which it is not open to the courts to ignore.[45]The courts have repeatedly stressed the need to construe section 71-72A of the 1988 Act and sections 13-15 of POCA purposively. When assessing the effect of procedural breaches, it is necessary to consider whether Parliament really intended those breaches to invalidate the subsequent proceedings: see Knights and Soneji. In carrying out this exercise it may be helpful to consider whether, despite the prosecution’s breaches, there has been “substantial compliance” with the time limits (per Lord Carswell in Soneji).[46]Recognising the intention of Parliament that confiscation proceedings should, so far as possible, be effective rather than invalidated, the court has upheld confiscation orders in a variety of circumstances, despite procedural breaches and delays by the prosecution: see Donohoe and Johal. The court treats a decision of the listing officer, following a general instruction from the judge, as a judicial decision to postpone: see Neish. In deciding what constitutes “exceptional circumstances” within section 14 (3) the court adopts a broad approach: see Johal.[47]Despite all this latitude, the hard fact remains that the court cannot act contrary to the express provisions of POCA, as the Lord Chief Justice observed in Neish. It was for this reason that the court had no power to make a confiscation order in Iqbal.[48]This brings us back to the problem posed by Donohoe. It seems to us that the following is the only way in which Donohoe can be reconciled with the provisions of POCA and the Court of Appeal’s decision in Neish: i) In Donohoe the crown court acted in breach of section 15 (2) of POCA. ii) Therefore section 14 (12) applied, with the result that section 14 (11) was disapplied. iii) Nevertheless POCA does not say that a breach of section 15 (2) of POCA renders the postponement ineffective. iv) Therefore the prosecution had no need to invoke the (unavailable) balm of section 14 (11) in order to save the validity of the confiscation order.[49]Having reviewed the relevant authorities, we must now come to a decision on the present appeal.

Part 5. Decision

[50]In this case there were lamentable delays by the prosecution. They failed to serve any section 16 statement in October or November 2012, as they should have done. Instead they let the whole matter go to sleep for a year. Even after that the prosecution dragged their feet. Their section 16 statement (when eventually served) was 14 months late. On two occasions there were abortive hearings, which resulted in wasted costs orders against the CPS.[51]The judge in his judgment of 9th June 2014 noted that the prosecution ought to have applied for a further postponement under section 14 in December 2012, when it was apparent that the original timetable could not be met. The prosecution failed to do so. The judge rightly characterised this as a serious procedural error at page 10G of his judgment. Nevertheless he considered that this error was capable of remedy within the two-year period specified in section 14 (5) of POCA.[52]We do not agree. Section 14 (8) provides that a period of postponement can only be extended if an application for extension is made before the period of postponement has ended. In this case the application to extend was made long after the period of postponement had ended.[53]In the ordinary way that would not be fatal to the prosecution. The saving provision of section 14 (11) would come to the rescue. But section 14 (11) does not apply in the present case. That is because on 12th July 2012 the court had wrongfully made a forfeiture order in breach of section 15 (2).[54]At one time we inclined to the view that the Court of Appeal’s decision in Donohoe might avail the prosecution. But that is not correct. In this case, unlike Donohoe, the prosecution needs the balm of section 14 (11) in order to retrieve its position.[55]It is of course right that we must strive to give effect to the objects of POCA and the intention of Parliament, as the House of Lords stated in both Knights and Soneji. The difficulty for the prosecution, however, is that part of Parliament’s intention is now expressed in section 14 (12) of POCA. That is a mandatory prohibition which, as the Lord Chief Justice stated in Neish, cannot be ignored. Forfeiture orders should not be made when confiscation proceedings are under way. If forfeiture orders are made in such circumstances, then the prosecution will be held more strictly to the time limits contained in section 14.[56]If one applies the helpful test suggested by Lord Carswell in Soneji at [67], it can be seen that there has most certainly not been substantial observance of the time limits by the prosecution. We do not base our decision on the “substantial performance” test. We merely note that in the present case that test, suggested by Lord Carswell, leads to the same results as that indicated above.[57]We acknowledge that in this case, unlike Iqbal, the two-year period had not expired on the date when the court made its confiscation order. Nevertheless we conclude that the combination of delays and breaches by the prosecution was such as to deprive the court of the power to make a confiscation order.[58]Whilst some of our comments may seem critical of the CPS, we do appreciate that that organisation is over-worked and stretched. If the prosecution is unable (for whatever reason) to carry through confiscation proceedings efficiently, the consequence may be, and in this case is, that large sums are lost to the public purse.[59]In the result, we allow the appellant’s appeal and quash the confiscation order.

order

see [46].

Cited in 1 later judgment