Case No: C1/2010/0090 & 0091
IN THE HIGH COURT OF JUSTICE
ON APPEALS FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT & DIVISIONAL COURT)
Mitting J & Pitchford J
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LADY JUSTICE ARDEN
LORD JUSTICE THOMAS
and
LORD JUSTICE ETHERTON
IN THE MATTER OF PEACOCK | Appellant/ |
Mr Orlando Pownall QC & Mr Christopher Finch (instructed by Creed Lane Law Group) for the Appellant
Mr Andrew Munday QC & Mr James Dennison (instructed by The Crown Prosecution Service) for the Crown Prosecution Service
Hearing date : 10 November 2010
Judgment
Lady Justice Arden :
This is an appeal from the order of Mitting J dated 18 May 2005 and the order of Pitchford J (as he then was) dated 18 December 2009. The central issue in the appeal is whether under s 16 of the Drug Trafficking Act 1994 (“the DTA 1994”) the Crown Court has jurisdiction to grant a certificate of increase in realisable assets by reference to assets acquired after the date of the conviction (“after-acquired assets”). After-acquired assets include lawful earnings after the date of conviction, but not for example, assets which were hidden at the date of the conviction or assets then known which have increased in value. In this case, the Crown is not in a position to say that the assets came from some tainted source so we have proceeded on the basis that the assets with which we are concerned are after-acquired assets in the sense given above. The relevant provisions of the DTA 1994 have been repealed and replaced by provisions of the Proceeds of Crime Act 2002 (“POCA 2002”), but that Act does not apply because the confiscation order in this case was made before 24 March 2003 (see The Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 (SI 2003 No 233)).
The background is not controversial and can be taken from the helpful judgment of Black LJ when she gave permission to appeal in this case:
“This is a matter which arises in relation to section 16 of the Drug Trafficking Act 1994. The proposed appellant committed offences in 1995 and pleaded guilty to five counts of conspiracy to supply controlled drugs on 8 January 1997. His sentence of 12 years' imprisonment was reduced on appeal on 5 October 1998 to 10 years' imprisonment. He served that term of imprisonment and was released in November 2000.
2. The Crown Court had identified the benefit received from drug trafficking following a confiscation hearing in the sum of £273,717.07 in respect of each of the two accused who were the subject of the criminal proceedings. The appellant's realisable assets were identified as £823 and that sum was to be paid over. It might have looked therefore that by November 2000, when the appellant emerged from prison, the slate was clean except that the benefit received had vastly exceeded the amount of realisable assets as they were identified by the Crown Court in 1997.
3. Having emerged from prison, I do not think there is any dispute that, by his legitimate efforts, the appellant acquired further assets. Their existence led the prosecutor to make an application in 2005. First there was an application for a restraining order to prevent the appellant from disposing of any of his assets. Secondly there was an application which was heard in front of Mitting J in May 2005 for a certificate of an increase in the assets, that would enable the Crown Prosecution Service to make an application in the Crown Court for an increase in the sum that they could recover under the confiscation order.
4. The proceedings in front of Mitting J were not contested. The appellant neither appeared nor was represented. The reason for that was that he had been advised by counsel that counsel could see no legitimate objections to the section 16 application for a certificate of increase. He advised that it would not necessarily follow that the assets would be taken in the Crown Court proceedings that would follow, although I think it is fair to say that he was not particularly optimistic about that matter.
5. The reason for counsel's advice was the existence of the authority, under a precursor to the 1994 Act, of Tivnan [1999] 1 Cr App R(S) 92. The Court of Appeal had held in that case that an equivalent section under the previous legislation applied to assets which were acquired after conviction. Counsel also cited a case called Saggar [2005] EWCA Civ 174 where it appears the Court of Appeal had also proceeded on the basis that section 16 applies to after-acquired assets.
6. The matter was then the subject of a significant hearing in front of HHJ Slinger in the Crown Court. He had to determine issues as to the ownership of the assets that had been identified as potentially the appellant's. He found that the realisable assets were £273,717 and certified that in, I think, September 2007.
7. There was an appeal against that to the Criminal Division of the Court of Appeal. The points taken on the appeal concerned the ownership of the assets which had been thought to be the appellant's. There was no argument as to the question of whether the court, in the person of Mitting J, had had jurisdiction to certify that the assets had increased in the first place which had been the gateway into the hearing in front of HHJ Slinger. However, I am told that an application was made to the Criminal Division to certify a point of law of public importance and that point was the question of jurisdiction in relation to after acquired assets. Mr Pownall freely concedes that application was doomed. It had not been argued in front of the Criminal Division and nor could it have been because the authorities dictate that the right place for such an argument is the Civil Division of the Court of Appeal, the original certificate having been granted by the Administrative Court of the Queen's Bench Division.
8. It seems that it was some time in the middle of 2009 that that transpired in the Criminal Division. That was not very long before the matter came to the Administrative Court again and was heard ultimately on 18 December 2009 by Pitchford J. The application to the CPS at that point was for a receiver to be appointed to enforce the order that HHJ Slinger had made back in 2007. I am told that the hearing on 18 December 2009 was the second attempt to have the matter heard. The exact date of the commencement of those proceedings in the Administrative Court is not known but it seems that they must have been not very long after the Criminal Division had considered the matter in the middle of the year.
9. Pitchford J did have advanced to him the argument about jurisdiction. By this point there were two authorities in the House of Lords which had considered that question but not centrally because it had not arisen for determination in either of the cases. By, I think, a complete coincidence they are both called May(e). One is Re Maye (AP) Northern Ireland[2007] UKHL 9 and the second is May[2008] UKHL 28. It is, of course, of interest to know whether the 2007 Maye case had been determined by the time HHJ Slinger considered the matter, and judging from the email which has been produced today from counsel who appeared in front of the Criminal Division on the appeal in relation to that, it may be that that 2007 decision had perhaps not been determined by the time that the matter was in front of HHJ Slinger.
10. In the light of those two authorities a forcible submission was made by Mr Pownall to Pitchford J on the question of jurisdiction. The House of Lords had indicated that there was an important and difficult question to be determined as to whether after acquired assets could in fact be caught by an earlier confiscation order. The application for the appointment of a receiver was also resisted on a second ground which was that the assets had fallen in value and it would not be worth the while of the CPS to proceed against them because insufficient money would be recovered.
11. Pitchford J was not persuaded against the appointment of a receiver. He appointed a receiver but he did suspend the powers of the receiver in order to give the appellant time to proceed in this court to seek leave to appeal against Mitting J's original order and of course there would be a need to appeal against Pitchford J's ancillary order.
12. The appellant did indeed appeal against both of those orders on the basis of the difficulty in the statutory construction in relation to section 16 identified by the House of Lords. Stanley Burnton LJ refused the application for permission to appeal on paper, I think it is fair to say largely on the basis that there had been undue delay in proceeding in relation to the applications although he did consider that it was a development that the statute in question had now been replaced. ”
The appellant contends that the order of Mitting J was made without jurisdiction and that accordingly the orders of Pitchford J and HHJ Slinger cannot stand.
It will be observed that the application under s 16 was made some 8 years after the date of conviction. The position is thus the same as the appellant winning on the national lottery 20 years after the date of conviction with a ticket bought out of his lawful earnings 19 years after conviction. If the order of Mitting J was rightly made, the Crown could apply to the Crown Court for a certificate that there had been an increase in realisable assets and the judge would then have to decide by what amount to increase that certificate. It is not known whether this point was raised with Mitting J as we do not have a copy of his judgment.
Confiscation Orders under the DTA 1994 and subsequent proceedings
It is convenient to start with the overview of the DTA 1994 provided by Rose VP in R v Tivnan [1999] 1 Crim L Rep (S) 92:
“…the confiscation legislation relating to drug dealing, as it is now principally enshrined in the Drug Trafficking Act 1994, is, as has been repeatedly said previously by the courts, draconian. It is intended to strip those who deal in drugs of any possible profit from so doing, by depriving them of their realisable assets, whether or not these are the proceeds of drug trafficking, up to the amount by which they have benefited from drug dealing. The stripping process must involve three stages, and may involve a fourth. First, the court decides if the defendant has benefited from drug trafficking (section 2(2)). Secondly, the court assesses the value of the proceeds of drug trafficking (section 4). Thirdly, the court decides on the amount of a confiscation order (section 5). This, apart from gifts, which are not presently material, will not exceed the total value of the defendant's realisable property at the time the confiscation order is made (section 6). If this value is, at that time, less than the defendant's benefit, the Crown Court must so certify (section 5(3)).
The fourth stage, which is presently relevant, will arise if, subsequent to such certification and the making of a confiscation order, there is an application under section 16 of the 1994 Act. This, omitting immaterial words, is in the following terms:
“(1) This section applies where … the amount which a person is ordered to pay by way of a confiscation order is less than the amount assessed to be the value of his proceeds of drug trafficking.
(2) If, on an application made in accordance with subsection (3) below, the High Court is satisfied that the amount that might be realised in the case of the person in question is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased) the court shall issue a certificate to that effect, giving the court's reasons.
…
(4) Where a certificate has been issued under subsection (2) above the prosecutor may apply to the Crown Court for an increase in the amount to be recovered under the confiscation order; and on that application the court may—
(a) substitute for that amount such amount (not exceeding the amount assessed as the value referred to in subsection (1) above) as appears to the court to be appropriate having regard to the amount now shown to be realisable; and
(b) increase the term of imprisonment or detention fixed in respect of the confiscation order …”
It is to be noted, first, that the section contains no words of limitation as to time. Secondly, it is expressed throughout in the present tense, by reference to the time of application for the further certificate and increased confiscation order. Thirdly, the marginal note refers to increase in realisable property. Fourthly, there is in the section no reference to the reason, (whether culpable concealment, subsequent acquisition, or otherwise), why, “the amount that might be realised … is greater than the amount taken into account in making the confiscation order”.
Furthermore, section 9(5) of the 1994 Act is in these terms:
“Where the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect so far as any other method of enforcement is concerned.””
Section 2 of the DTA 1994 provides for the making of a confiscation order when a person is sentenced for a drug trafficking offence. If the court determines that the defendant has benefited from drug trafficking, the court must determine the amount to be recovered from the defendant and order him to pay this amount: s 6. The amount to be recovered under the confiscation order is the amount which the Crown Court assesses to be the value of the defendant’s proceeds of drug trafficking. Where the amount is greater than the amount which might be realised at the time of the confiscation order, the court has to give a certificate which states the amount which might be realised at the time of the confiscation order: s 5(3).
Definitions of the "amount that might be realised" and "realisable property" appear in section 6:
“6.Meaning of “amount that might be realised” and “realisable property”.
(1) For the purposes of this Act the amount that might be realised at the time a confiscation order is made against the defendant is—
(a) the total of the values at that time of all the realisable property held by the defendant, less
(b) where there are obligations having priority at that time, the total amount payable in pursuance of such obligations,
together with the total of the values at that time of all gifts caught by this Act.
(2) In this Act “realisable property” means, subject to subsection (3) below—
(a) any property held by the defendant; and
(b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Act.”
Sections 13 to 17 deal with further proceedings after the making of a confiscation order. Section 13 deals with the situation where the court did not make a confiscation order but material information subsequently comes in to the prosecution’s hands. The court can then make a confiscation order provided that the application if made within 6 years of the conviction:
“13.Reconsideration of case where court has not proceeded under section 2.
(1) This section applies where the defendant has appeared before the Crown Court to be sentenced in respect of one or more drug trafficking offences but the court has not proceeded under section 2 of this Act.
(2) If the prosecutor has evidence—
(a) which was not available to him when the defendant appeared to be sentenced (and accordingly was not considered by the court), but
(b) which the prosecutor believes would have led the court to determine that the defendant had benefited from drug trafficking if—
(i) the prosecutor had asked the court to proceed under section 2 of this Act, and
(ii) the evidence had been considered by the court,
he may apply to the Crown Court for it to consider the evidence.
(3) The court shall proceed under section 2 of this Act if, having considered the evidence, it is satisfied that it is appropriate to do so. …
(10) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date of conviction.…”
Section 14 deals with the case where the court made a determination that the defendant had not benefited from drug trafficking but the prosecution subsequently receives evidence which shows that he had done so. Again the application had to be made within 6 years of he date of conviction:
“14.Re-assessment of whether defendant has benefited from drug trafficking.
(1) This section applies where the court has made a determination under section 2(2) of this Act ( “the section 2(2) determination”) that the defendant has not benefited from drug trafficking.
(2) If the prosecutor has evidence—
(a) which was not considered by the court in making the section 2(2) determination, but
(b) which the prosecutor believes would have led the court to determine that the defendant had benefited from drug trafficking if it had been considered by the court,
he may apply to the Crown Court for it to consider that evidence.
(3) If, having considered the evidence, the court is satisfied that it would have determined that the defendant had benefited from drug trafficking if that evidence had been available to it, the court—
(a) shall make—
(i) a fresh determination under subsection (2) of section 2 of this Act; and
(ii) a determination under subsection (4) of that section of the amount to be recovered by virtue of that section; and
(b) may make an order under that section.
…
(7) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date of conviction…”
Section 15 deals with the case where prosecutor considers that the amount that might be proceeds which the defendant obtained from drug trafficking was understated. Again the application must be made within 6 years of conviction:
“15.Revised assessment of proceeds of drug trafficking.
(1) This section applies where the court has made a determination under subsection (4) of section 2 of this Act of the amount to be recovered in a particular case by virtue of that section (“the current section 2(4) determination”).
(2) Where the prosecutor is of the opinion that the real value of the defendant’s proceeds of drug trafficking was greater than their assessed value, the prosecutor may apply to the Crown Court for the evidence on which the prosecutor has formed his opinion to be considered by the court.
…
(4) If, having considered the evidence, the court is satisfied that the real value of the defendant’s proceeds of drug trafficking is greater than their assessed value (whether because the real value at the time of the current section 2(4) determination was higher than was thought or because the value of the proceeds in question has subsequently increased), the court shall make a fresh determination under subsection (4) of section 2 of this Act of the amount to be recovered by virtue of that section.
…
(7) Any determination under section 2(4) of this Act by virtue of this section shall be by reference to the amount that might be realised at the time when the determination is made.
…
(10) The court may take into account any payment or other reward received by the defendant on or after the date of the current section 2(4) determination, but only if the prosecutor shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another person on or before that date.
…
(15) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date of conviction…”
Section 16 deals with increases in assets post-conviction. In this section there is no requirement for an application to be made within 6 years after the date of conviction:
“16.Increase in realisable property.
(1) This section applies where, by virtue of section 5(3) of this Act, the amount which a person is ordered to pay by a confiscation order is less than the amount assessed to be the value of his proceeds of drug trafficking.
(2) If, on an application made in accordance with subsection (3) below, the High Court is satisfied that the amount that might be realised in the case of the person in question is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased) the court shall issue a certificate to that effect, giving the court’s reasons.
(3) An application under subsection (2) above may be made either by the prosecutor or by a receiver appointed in relation to the realisable property of the person in question under section 26 or 29 of this Act or in pursuance of a charging order.
(4) Where a certificate has been issued under subsection (2) above the prosecutor may apply to the Crown Court for an increase in the amount to be recovered under the confiscation order; and on that application the court may—
(a) substitute for that amount such amount (not exceeding the amount assessed as the value referred to in subsection (1) above) as appears to the court to be appropriate having regard to the amount now shown to be realisable; and
(b) increase the term of imprisonment or detention fixed in respect of the confiscation order under subsection (2) of [section 139 of the Powers of Criminal Courts (Sentencing) Act 2000] (as it has effect by virtue of section 9 of this Act) if the effect of the substitution is to increase the maximum period applicable in relation to the order under [subsection (4)] of that section.”
Section 17 enables the High Court to grant a certificate that the defendant’s realisable property is inadequate to meet the amount remaining to be recovered under the confiscation order, and this certificate enables the defendant to apply to the Crown Court for the amount to be recovered to be reduced:
“17.Inadequacy of realisable property.
(1) If, on an application made in respect of a confiscation order by—
(a) the defendant, or
(b) a receiver appointed under section 26 or 29 of this Act or in pursuance of a charging order,
the High Court is satisfied that the realisable property is inadequate for the payment of any amount remaining to be recovered under the confiscation order, the court shall issue a certificate to that effect, giving the court’s reasons.
(2) For the purposes of subsection (1) above—
(a) in the case of realisable property held by a person who has been adjudged bankrupt or whose estate has been sequestrated the court shall take into account the extent to which any property held by him may be distributed among creditors; and
(b) the court may disregard any inadequacy in the realisable property which appears to the court to be attributable wholly or partly to anything done by the defendant for the purpose of preserving any property held by a person to whom the defendant had directly or indirectly made a gift caught by this Act from any risk of realisation under this Act.
(3) Where a certificate has been issued under subsection (1) above, the person who applied for it may apply to the Crown Court for the amount to be recovered under the confiscation order to be reduced.
(4) The Crown Court shall, on an application under subsection (3) above—
(a) substitute for the amount to be recovered under the order such lesser amount as the court thinks just in all the circumstances of the case; …”
The original statutory provisions on confiscation of assets following a conviction for drug trafficking were contained in the Drug Trafficking Offences Act 1986 (“the DTOA 1986”).
In 1988, the UN Convention against illicit traffic in Narcotic Drugs and Psychotropic Substances (known as “the Vienna Convention”) took effect and this required the United Kingdom to implement article 5 of that Convention, which in material part provides:
“1. Each Party shall adopt such measures as may be necessary to enable confiscation of:
a) Proceeds derived from offences established in accordance with article 3, paragraph 1,or property the value of which corresponds to that of such proceeds;…”
In the words of Sir Thomas Bingham MR (as he then was) in Re Barretto [1994] QB 392 at 397:
“There can be no doubt that this Convention reflected the determination of the many signatory states to stamp out the international drug trade and strip drug traffickers of their ill-gotten gains. The Act was also intended to fill loopholes which had appeared in the Act of 1986 regime.”
In pursuance of its obligations under the Vienna Convention the United Kingdom passed the Criminal Justice (International Co-operation) Act 1990 (“the 1990 Act”). Section 16 of the 1990 Act enabled increases in the defendant’s assets post-conviction to be taken into account. In Re Barretto, however, this court concluded that this provision could not be used where the original confiscation order pre-dated the 1990 Act. The new provision was not purely procedural and did not have retroactive operation.
Parliament subsequently passed the DTA 1994 which repealed nearly all the provisions of the DTOA 1986 and s 16 of the 1990 Act.
The principal argument of Mr Orlando Pownall QC, for the appellant, rests on there being an ambiguity in s 16 of the DTA 1994. He submits that s 16(2) is unclear and points away from after-acquired assets. This accords with the marginal note “Increase in realisable property” and with the definition of realisable property in s 6(2) by reference to property held by the defendant, or a person to whom he has made a “tainted” gift, which speaks to the past. The point is on his submission made even clearer in s 5(3) of the DTOA 1986 where the amount that might be realised at the time of a confiscation order means (subject to adjustment for relevant liabilities and gifts) the “total of the values at this time of all the realisable property held by the defendant.” In addition, Mr Pownall contrasts the DTA 1994 with the POCA 2002, which makes express provision for after-acquired assets. He also points out the 6 year time limit in ss 13,14 and 15, which he submits is another indication that s 16 was not intended to cover after-acquired assets. Mr Pownall further submits that if it was the intention of Parliament that s 16 should apply to after-acquired assets, the statutory provision should be unequivocal. He submits that this is particularly so, as section 16 applies after the assets have been acquired.
Mr Pownall referred us to statements in Hansard when the bill that became the DTA 1994 was being considered. We considered these statements de beneesse, but there was nothing in them to suggest that after-acquired assets were to be excluded. Accordingly I need say no more about them. He also submits that, as a matter of policy, a defendant should after a period of punishment and rehabilitation be encouraged to earn money lawfully and pay their taxes. He submits that if s 16 covers lawfully obtained post-conviction assets it will encourage individuals “to work below the radar and mislead authorities as the consequences of doing otherwise are potentially drastic” or “not to work and to claim benefit.” These, however, are not relevant considerations since the role of the Court is to interpret the words that Parliament has used, not to devise the policy in these cases for itself.
Mr Andrew Munday QC, for the Crown Prosecution Service, relies on the decision of (so far as relevant) the Criminal Division of this court in R v Tivnan. Mr Pownall submits that the relevant decision in Tivnan was obiter because the court was of the view that the appeal ought to have been directed to the Civil Division of this court. I would not accept this submission: the court’s conclusions on the substantive points on the appeal constituted alternative grounds for its decision.
The appellant’s argument on the substantive point in that case was that s 16 of the 1990 Act did not apply to assets which had been honestly acquired post-conviction and that s 16 of the DTA 1994 should be construed in the same way. Differing views had been expressed on the effect of s 16 of the 1990 Act by Schiemann J (as he then was) and Turner J. The prosecution disputed the appellant’s interpretation, and relied on the Vienna Convention.
Rose VP, giving the judgment of this court, rejected this argument. He held:
“It is to be noted, first, that the section contains no words of limitation as to time. Secondly, it is expressed throughout in the present tense, by reference to the time of application for the further certificate and increased confiscation order. Thirdly, the marginal note refers to increase in realisable property. Fourthly, there is in the section no reference to the reason, (whether culpable concealment, subsequent acquisition, or otherwise), why, “the amount that might be realised … is greater than the amount taken into account in making the confiscation order”.
Furthermore, section 9(5) of the 1994 Act is in these terms:
“Where the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect so far as any other method of enforcement is concerned.”
In our judgment it is apparent, therefore, that when enacting section 16, Parliament contemplated a continuing state of affairs as envisaged by section 9(5).
Indeed, as it seems to us, section 16 (4)(b) dovetails with the provisions of section 9(5). Accordingly, for our part, we prefer Schiemann J.'s first thoughts in Barretto, rather than his second thoughts, and we prefer the views expressed by Turner J. in Re C. We bear in mind that, as a penal statute, the 1994 Act must, in the case of ambiguity, be construed favourably to the defendant. But we see no ambiguity. The plain words of the statute, in our judgment, provide for the making of an application for a further certificate and for an increase in the amount to be recovered under the confiscation order at any time after the original confiscation order was made. By this means drug dealers can be deprived of their assets until they have disgorged an amount equivalent to all the benefit which has accrued to them from drug dealing.”
In my judgment, Mr Pownall’s submission must be rejected. This court is in my judgment for the reasons given above bound by the decision in Tivnan to conclude that s 16 applies to assets lawfully acquired post-conviction.
In any event, contrary to Mr Pownall’s submission, s 16(2) does not, in my judgment, point away from after-acquired assets. It does not use the expression “realisable property”. It clearly looks to the amount that can be realised at the date of the application under that section. The statutory question for the High Court is whether it is satisfied that “the amount that might be realised …is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased)”. There are no words of limitation in relation to assets that the court can take into account for the purpose of answering the statutory question. The words in brackets qualify “the amount that might be realised”. There are alternatives in the words in brackets: I proceed on the basis that the latter alternative refers to events that have happened to the assets that were identified at the date of the confiscation order. The former alternative, however, can apply to all the property held by the defendant, whenever acquired.
It is to be noted that s 16(2) is only dealing with the powers of the High Court to grant a certificate of increase in the amount that might be realised. It remains for the Crown Court to consider whether the amount stated in the confiscation order should be varied under s 16(4) of the DTA 1994: see generally R v Saggar[2005] EWCA Civ 174 at [42] to [43].
Mr Pownall also relies on the observations by Lord Scott in re Maye[2008] UKHL 9 at [24] that the application of the equivalent provision of the Northern Ireland legislation to after-acquired assets “is both important and difficult” and should be left open. Mr Pownall further relies on the observation of Lord Bingham, giving the opinion of the Appellate Committee of the House of Lords in R v May[2008] UKHL 28, where it was simply said that that point was not raised and should be considered in a case in which it arises. Neither of these observations are sufficient to disturb the reasoning in Tivnan.
The fact that the POCA 2002 contains some clearer provision does not undermine this conclusion, nor does the fact that ss 13,14 and 15 contain a 6 year time limit. In fact, in those sections Parliament might have thought it desirable to have time limits because the defendant might need to investigate events going back in time. There is no real ambiguity, in my judgment, in s 16.
Mr Pownall submits that s 16 no longer had effect after the commencement of the relevant provisions of the 2002 Act on 24 March 2003 but it is clear that s 16 continues in force for the purposes of these proceedings as a result of a saving in the commencement order (see The Proceeds of Crime Act 2002 (Commencement No.5, Transitional Provisions, Savings and Amendment) Order 2003, articles 3 and 10). As Mr James Dennison, following Mr Munday, submits, the confiscation order would now be outside all legislation if the appellant were right on this point.
Accordingly I would dismiss this appeal.
Lord Justice Thomas:
I agree.
Lord Justice Etherton:
I also agree.