McCready, R v

The judge then heard short submissions in mitigation and adjourned for a short time, no doubt in order to consider what had been submitted to him and to formulate his sentencing remarks.

On returning to court the judge passed sentence. His sentencing remarks were understandably reasonably full: he set out the extent of the importation and identified the roles of each of the accused. After announcing the sentences, counsel for a co-accused invited the judge to make an order in relation to the retention of exhibits for the purpose of any appeal. The judge did so. At that point Mr Hewitt returned to the question of the Drug Trafficking Act enquiry.

Mr Hewitt said that he had hoped to have the opportunity to respond to the alternative timetable advanced by the defence before the judge ruled on it. He thereafter sought to persuade the judge to amend his ruling. The judge however re-affirmed the order he had made. After hearing Mr Hewitt’s further submissions he said: “I see. I will order that it be filed by 31^st January. The defence to reply by 31^st March”

It is submitted by Mr Johnson on behalf of the appellant (who did not appear below) that the judge failed to postpone the confiscation inquiry prior to passing sentence and having failed to do so all subsequent proceedings in relation to confiscation are a nullity. That is so, submits Mr Johnson, even though there had been no objection to the application for a postponement – indeed it is clear that the defence accepted there should be a postponement – and the judge had proceeded to hear the defence representations about the time-tabling of the confiscation procedure on the basis of such acceptance. It is submitted that, since the judge did not announce his decision until after passing sentence, he should not be regarded as having made his decision to postpone until after passing sentence. Thus, the subsequent procedure was a nullity which could not be cured and, despite the lack of any prejudice to the appellant, the confiscation order must be set aside.

If that ground fails, Mr Johnson advances the alternative ground that in any event the judge failed to specify the period for which he made the postponement, that failure itself being fatal to the subsequent confiscation proceedings.

The relevant provisions of the Act are as follows:

if the prosecutor asks the court to proceed under this section, or

if the court considers that, even though the prosecutor has not asked it to do so, it is appropriate for it to proceed under this section,

The court shall first determine whether the defendant has benefited from drug trafficking.

…..

If the court determines that the defendant has so benefited, the court shall, before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned, determine in accordance with section 5 of this Act the amount to be recovered in his case by virtue of this section.

……

determining whether the defendant has benefited from drug trafficking, or

…..

Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above which—

by itself, or

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,

– (6) ….

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 relevant offence or any of the relevant offences.

Where the court has so proceeded, section 2 of this Act shall have effect as if—

in subsection (4), the words “before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned” were omitted; and

The effect of those provisions has been considered by this court on a number of occasions. It is now well recognised that the decision to postpone the confiscation procedure is a judicial decision involving the exercise of the court’s discretion: see, for example, Steele and Shevki [2001] 2 Cr. App. R. (S) 40, and Ross [2001] 2 Cr. App R (S) 484. The judicial decision must be made before sentence is passed and the decision must be made obvious by the judge. Potter LJ put the matter thus in Ross at Paragraphs 25 and 26:

No particular form of words is required, but the decision to postpone must be made manifest and, in particular, it must specify the period of the postponement, which cannot go beyond six months from the date of conviction unless the circumstances are exceptional. In this case (i.e. on the facts of Ross) there was no such decision before sentence was passed. The judge did not indicate or decide whether or not there would be a determination after sentence. He intended to decide that subsequently, and he did so. (Our emphasis)

It has since been made clear that it is not necessary for the judge actually to announce his decision before imposing sentence. What he must do is to reach a decision about whether or not to postpone the confiscation inquiry before sentence. If he does so, it matters not whether he articulates that decision before or after passing sentence: see Steven Davies [2001] EWCA(Crim) 2902.

In Davies (supra) prosecuting counsel made an application for a DTA inquiry prior to the imposition of sentence but asked the judge to postpone that inquiry until after sentence. He invited the judge to set a time-table, the suggested details of which he set out, adding that if his proposed time-table was ordered it would be possible to deal with the matter within the 6-month period. Counsel for the defence then addressed the judge in mitigation, confining herself to submissions about the length of sentence. She said nothing in response to the application to postpone. That contrasts with this case, where Mr Dein did make submissions about the application, making clear that the defence did not object to the postponement and simply seeking a shorter period for the Crown to set out its case. In Davies, having heard counsel on both sides the judge proceeded to pass sentence. He announced a sentence of 10 years imprisonment and immediately thereafter ordered that the defendant must disclose his assets on affidavit, directing that the prosecution would have 28 days thereafter to serve its case under the Act with the defendant having 28 days to respond.

The appellant appealed on the ground that the order directing an inquiry had been made after sentence had been passed. The court rejected that argument. Giving judgment, Pitchford J said:

It must in our view have been abundantly plain to anyone sitting in Court that the judge had decided before sentence to postpone the determination in order that the further information in accordance with his time-table could be obtained. The fact that the judge’s decision was announced immediately after, rather than immediately before, the passing of sentence is in our judgment of no consequence. What matters is that the judge did reach a decision before passing sentence and, by the form of words that he used contemporaneously with passing sentence, made that decision manifest. We make clear that the position would have been different if nothing had been said until a further application had been made to him on some subsequent occasion.

The court distinguished Ross (supra) on the basis that there the court was concerned with facts which made it abundantly clear that the trial judge specifically did not make a decision whether to postpone his determination before passing sentence.

In this case we intended to hand down judgment on 8^th November 2002. However the court learned that three appeals raising similar issues had recently been argued before another division of this court (Lord Woolf CJ, Holland & Keith JJ) in Sekhon, Shangara Singh, Satnam Singh & Ors [2002] EWCA Crim 2954 and judgment had been reserved. We accordingly adjourned the announcement of our decision pending judgment in that case, which was handed down on 16^th December 2002. The judgment in this appeal must be read in the light of the conclusions in Sekhon et al (supra) and in particular the observations of the court about earlier decisions where confiscation orders have been set aside when there had been a failure strictly to comply with the statutory regime.

Basing his submissions on Ross, Mr Johnson submits that the judge did not make a decision that there was to be a postponement before he imposed sentence. Although the judge had invited submissions on the application for a postponement before sentence he did not rule on them before passing sentence. Further, having passed sentence he had to be reminded of the application under the Act by counsel. His observation before sentence – “I will deal with this aspect later then” - is described by Mr Johnson as the crucial observation. It demonstrates, he submits, that the judge was deferring the decision on postponement until later in the proceedings. Strength is added to that submission by the fact that the judge had to be reminded that he had failed to deal with the point in his sentencing observations.

For the Crown Mr Gratwicke submits that it is clear there was no dispute between the prosecution and the appellant that there should be a postponement. It was simply the timetable for service of the Statement which was in issue. He argues that the observations of the judge in dealing with the application demonstrate that he had already made a decision to postpone before ever he passed sentence and that he made that decision manifest by the words he used.

The words of the judge: “I am sorry, I should have dealt with that” related not to the decision (already taken) to postpone, but to the directions as to time for service of the Statement and Reply which immediately followed. That was plainly the case because Mr Dein had, prior to sentence, indicated that he had no objection to postponement, at which stage the judge proceeded to receive submissions as to directions on the basis that such postponement would occur. Thus, say the Crown, the judge made a judicial decision to postpone which he communicated to the appellant and his legal advisers in the course of the sentencing process.

Having considered the transcript of the proceedings we are satisfied that the judge did reach a decision on the application for postponement before passing sentence and, by the form of words he used immediately after announcing the sentence he made that decision manifest. In context, the judge’s words prior to sentence “I will deal with this aspect later then” referred not to the decision as to whether to order postponement (as to which there was no issue) but to the timetable in relation to the postponed hearing. We are not persuaded that the words after sentence “I am sorry, I should have dealt with that” are an indication that the judge had not reached a decision about postponement until reminded of the application. On the contrary, the words in our judgement demonstrate clearly that he had indeed reached a decision but had simply omitted to announce it before that point in the proceedings. It must have been manifest to anyone sitting in the Harrow Crown Court on 9^th December 1998 that Judge Lockhart had decided before sentence was passed to postpone the determination of the DTA inquiry. That ground of appeal accordingly fails.

We turn to the second ground of appeal, the alleged failure of the judge to specify the period for which the postponement was made. It was a failure of such a kind which was ultimately determinative of the appeal in Davies (supra). In that case on 16^th March 2001 the judge did postpone the inquiry, and set a timetable. But he gave no indication, nor did counsel on either side, as to when the hearing might take place. At a later hearing in August 2001, and after the decision of this court in Ross, the judge sought to justify his approach on the basis that the period of the postponement was the aggregate of the time fixed by his procedural timetable. Not good enough, said this court. At Paragraph 35 the court said:

The prosecution did not identify in its application the period it wished the judge to specify for the purpose of section 3. Mr Robertson (Counsel for the Crown) indicated only that the timetable he proposed would enable the determination to be some time within the statutory maximum of six months. The judge did not himself specify a period, nor did he adopt the six month limit. He specified only a timetable for the exchange of information.

Although the judge five months later thought he had meant the period should be 84 days, we have reached the conclusion it is impossible to find that decision was reached on 16^th March, still less that it was a decision which was manifest. One obvious difficulty with such a construction of the words used is that it makes no allowance for consideration by the prosecution of any statement delivered by the appellant by way of reply before the matter was listed for hearing.

Further support is given for this proposition by the recent decision of Pisciotto [2002] EWCA (Crim) 1592. In that case, at the sentencing hearing and before passing sentence, the Judge announced that he would adjourn the application under the Drug Trafficking Act so that the prosecution could serve the appropriate statement under the Act and the defence could serve any counter-statement. He indicated that he assumed that would take some time. The only reference to any length of postponement was that the matter would have to come back on a future date.

This court set aside the confiscation order later made on the basis that the judge failed to comply with the statutory requirements of Section 3. Giving the judgment of the Court, Keene LJ said:

The judge did not even set a time-table for the disclosure of information and the serving of statements. The question of the length of the postponement was left entirely at large at the end of the hearing of 25^th January 2001. That failure to specify means that, as a matter of law, the power to postpone the determinations under Section 3 of the Act was not properly exercised. It follows that there was no jurisdiction in the Crown Court to make the determinations which it did in December 2001.

Giving guidance to judges required to exercise this jurisdiction the Court said:

Judges dealing with drug trafficking cases should be alert to the need to comply carefully with the terms of Section 3(1) when postponing a determination. This case is yet another instance of a failure to do so. We emphasise that no particular form of wording is needed so long as the Judge at the time of passing sentence (1) makes clear he has exercised his discretion to postpone and (2) makes clear the period for which the determination is postponed. If at that stage a Judge sets out the time-table for service of prosecution and defence statements and also specifies a hearing date for the determination (or even a band of dates within which the determination hearing is to take place, provided that the band of dates falls within the 6 month period beginning with the date of conviction) that doubtless would suffice: although we think it would even then be greatly preferable for the Judge first to have specified the precise period he had selected. What is not acceptable, however, is for the Judge either to fail to specify any period at all (as happened here); or for the Judge to give directions in such a way it cannot clearly be discerned what period, if any, has been specified.

We respectfully endorse the general observations made by the court in Pisciotto. If it is possible to fix an actual hearing date for the confiscation inquiry, that is the best possible outcome. However the reality is that in many cases that will simply not be possible. It will not at that stage be known how long the hearing will take; further, the hearing date must accommodate (at the very least) the availability of the judge, two counsel, the witnesses and a court, not necessarily in the same building or even in the same town. Thus it will often be appropriate not to fix an actual date but simply to give directions in such a way that it is clear to all those affected that the confiscation inquiry will take place within a band of dates prior to the expiry of 6 months from the date of conviction.

We consider that the question for our determination is whether the proceedings before Judge Lockhart, considered in their entirety, were such that the judge failed to comply with the terms of Section 3(1) and (3). Mr Johnson submits that the transcript demonstrates a clear failure on the part of the Judge either to specify a period for the postponement, or to adopt the 6 month time limit, as in Pisciotto. All he ordered, it is said, is an exchange of information in such a way that it could not be clearly discerned for what period the postponement was ordered.

Again, we have considered the exchanges before the trial Judge. The Crown in making the application to proceed under the Drug Trafficking Act 1994 made it clear that it was their application that following the service of the appellant’s response by the end of March 1999 a hearing would take place in April/May 1999, which would of course have been within the 6-month period. Counsel for the appellant opposed the Crown’s application for a 2 month period within which to serve the Section 11 statement but himself envisaged a hearing in May 1999. The ruling of the trial Judge as to the time-table was consistent with a hearing in April/May 1999 as mooted by Counsel. If the judge had actually added to his order that the prosecution serve their statement under section 11 by 31^st January and the defence must serve their reply by 31^st March the words: “Thereafter the hearing will take place in April or May 1999”, there could be no complaint.

The order made by the judge, in the context in which he made it, demonstrates in our judgment that he had made following decisions:

there was to be a Drug Trafficking Act inquiry;

It is instructive to consider events subsequent to 9^th December 1998. The prosecution duly served their statement under section 11 on 28^th January 1999. By that time the appellant had lodged his applications for leave to appeal against conviction and sentence. The matter came back for consideration of a further postponement consequent upon those applications on 22^nd April 1999, i.e. within the bracket envisaged at the time of the original application for postponement and the orders made in consequence thereof.

We are satisfied that everybody in Court that day in December 1998 knew perfectly well that the decisions we have identified at Paragraph 31 above had been made by the judge. Nobody leaving Court that day could have been under any other impression. The ultimate question for the court is whether, in using the words he did, the judge complied with the statutory requirement to “postpone making the determination for such period as [the court] may specify.”

This case was different from the position which pertained in Pisciotto, where the judge did not set any timetable for the provision of information or the service of statements and where the length of the postponement was left entirely at large. Nor is it like Davies, where counsel gave no indication of when the hearing might take place. The time-tabling ordered by the Judge was such that, in the context of the exchanges which had taken place, he did indeed effectively specify the period of postponement, that is to say a postponement until April or May 1999.

We can only repeat the observations of this court in Pisciotto: see paragraph 27 above. It would have been preferable had the Judge, when announcing his time-tabling decision, added the words “so that postponement will be until a suitable date in April or May 1999” but his failure to do so is not, in our judgment, fatal to the confiscation order subsequently made and about which no criticism whatsoever is made.

In those circumstances the appeal is dismissed.