Supreme Court

Regina v Guraj

[2016] UKSC 65; [2016] WLR (D) 673

2016 Nov 17

Lord Neuberger of Abbotsbury PSC, Lord Mance, Lord Reed, Lord Hughe JJSC and Sir Declan Morgan CJ

Crime — Sentence — Confiscation order — Judge making forfeiture order and postponing confiscation proceedings — Prosecution failing to apply to extend period of postponement prior to expiry — Whether failure capable of remedy — Whether subsequent confiscation proceedings invalid — Proceeds of Crime Act 2002 (c 29), ss 14(8)(11)(12), 15(2)

Facts

In June 2012 the defendant pleaded guilty to offences contrary to the Misuse of Drugs Act 1971 and possession of criminal property, contrary to the Proceeds of Crime Act 2002, and the prosecution applied for a forfeiture order pursuant to section 27(1) of the 1971 Act and for a confiscation order pursuant to section 6 of the 2002 Act. The judge sentenced the defendant to a term of imprisonment, made an order under section 27(1) of the 1971 Act for forfeiture of a number of items and the drugs seized and, in respect of the confiscation application, made a postponement order under section 14(1) of the 2002 Act for a period expiring in December 2012 and set a timetable for those proceedings which would have resulted in a hearing in November 2012. The defendant served his statement of assets and means pursuant to section 18 in September 2012, but the prosecution let matters lapse and failed to apply for the period of postponement to be extended under section 14(2). The case was listed before a judge in January 2014 and further adjourned at the prosecution’s request. In May 2014 another judge rejected the defendant’s contention that because of the prosecution’s delays and non-compliance with court orders the confiscation proceedings had lapsed, and in June 2014 he made a confiscation order. The Court of Appeal allowed the defendant’s appeal.

On the Crown’s appeal—

Held

Held, Appeal allowed. Consistently with the dominant purpose of the Proceeds of Crime Act 2002 confiscation was the duty of the court, to which a significant priority was to be given. The correct analysis of section 14 of the Act was not that a procedural defect deprived the court of jurisdiction but that a failure to honour the procedure set down by the statute raised the very real possibility that it would be unfair to make an order, although the jurisdiction to do so remained, and that unless the court was satisfied that no substantial unfairness would ensue, an order ought not to be made. If, however, the defect gave rise to no unfairness, or to none that could not be cured, there could be no obstacle to the making of a confiscation order, and that was what the duty of the court under the Act required. In the defendant’s case no unfairness had been or could be suggested and, accordingly, the confiscation order restored (post paras, 24, 27, 29, 31–33, 35) .

R v Soneji [2006] 1 AC 340, HL(E) and R v Knights [2006] 1 AC 368, HL(E) applied.

R v Neish [2010] 1 WLR 2395, CA explained.

Appellate History

Decision of the Court of Appeal (Criminal Division) [2015] EWCA Crim 305; [2015] 1 WLR 4149 reversed.

Per curiam

Per Efforts should be made to simplify confiscation proceedings so they do not suffer drift. It may be sensible for a court which needs to give directions setting a timetable to postpone confiscation to a fixed date somewhat beyond the intended target date. Courts must be alive to the reality that it will often be in the interests of defendants to delay and listing officers should keep the situation under review (post paras 23, 37). Dictum of Irwin J in R v Johal [2014] 1 WLR 146, para 48, CA approved.

Appearances

Jonathan Hall QC and Will Hays (instructed by Crown Prosecution Service, Appeals and Review Unit) for the Crown. Simon Farrell QC and Kitty St Aubyn (instructed by Faradays Solicitors, Holloway) for the defendant.

Reported by: Ms B L Scully, Barrister

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