Attorney General, Re References Nos 83 & 84 of 2005

This is an application by Her Majesty’s Attorney General for leave to make two references to the Court of Appeal under section 36 of the Criminal Justice Act 1988. The first Offender is Raymond Jerome Legall. He is 33 years of age. The second Offender is Tracy Macaulay. She is 31 years of age. It is submitted that the failure to make confiscation orders made the sentences unduly lenient. (See A-G’s Reference Nos 114-116 of 2002 [2003] EWCA Crim 3374).

At the conclusion of the hearing we announced that leave was granted and that the failure to make confiscation orders against the two Offenders was unduly lenient. A hearing will take place to determine what orders should now be made.

The first Offender was arrested on 25^th August 2002, when the second Offender, his co-accused, Tracey Macaulay, was found in possession of 2 kilogrammes of cocaine. The prosecution’s case was that during 2002 the first Offender was a wholesale supplier of cocaine in South East Wales. He was said to be the prime mover in the distribution of the cocaine, arranging its delivery to Cardiff and taking part in or overseeing its distribution. The evidence against the first Offender consisted of human and covert surveillance, mobile telephone records and property recovered from police searches (including over £60,000 in cash).

On 1^st April 2003 in the Crown Court at Cardiff, the second Offender pleaded guilty to conspiracy with the first Offender and others to supply a controlled drug of Class A. On 23^rd September 2003 the first Offender pleaded guilty to the same conspiracy. The conspiracy covered the period between 1^st April 2002 and 26th August 2002.

The first Offender was sentenced by His Honour Judge Denyer Q.C. on 13^th November 2003 to ten years’ imprisonment. The second Offender was sentenced by His Honour Judge Denyer Q.C. on 14^th November 2003 to four years’ imprisonment.

A now agreed chronology sets out the relevant events.

The Reference concerns what happened on 22 March 2004. It is, however, worthwhile to reproduce the transcript from 14 November 2003:

JUDGE DENYER: Mr Griffiths, I know that application has been made which will be pursued in respect of both Mr Legall and Miss Macauley. Do I have to fix a date today by which time - -

MR GRIFFITHS: Yes.

JUDGE DENYER: Can you suggest one, please?

MR GRIFFITHS: Allowing particularly the investigation into Mr Legall rather than Miss Macauley - -

JUDGE DENYER: I understand that.

MR GRIFFITHS: I have been asked to ask for a period of six months, which is the maximum the Act applies.

JUDGE DENYER: I am not going to give you six months because we have gone right up against the timetable. I am going to fix a period of four months.

MR GRIFFITHS: Thank you.

MR JENKINS: I am grateful for that because I do not know whether the prosecution are aware, usually I must say they prepare the documentation very quickly. We have not been served with anything in relation to the drug trafficking matters. Whether it has been prepared or not I do not know.

JUDGE DENYER: Neither do I, Mr Jenkins, I have not seen anything. It may be that she wants some of her certificates back. 15th March then for the drug treatment benefit review [sic].

In the case of Macaulay some 7 months had elapsed since the date of her conviction and a further four months would elapse before the scheduled confiscation hearing. There was, as one can see, no reference to “exceptional circumstances”, a phrase to which we return below.

We turn to the relevant statutory provisions in force at the time.

Section 2 of the Drug Trafficking Act 1984 provided:

(1)

Subject to subsection (7) below, where a defendant appears before the Crown Court to be sentenced in respect of one or more drug trafficking offences (and has not previously been sentenced or otherwise dealt with in respect of his conviction for the offence or, as the case may be, any of the offences concerned), then-

(a)

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

(b)

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,

it shall act as follows.

(2)

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

....

(4)

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.

.... (Underlining added)

Section 3 provided:

(1)

Where the Crown Court is acting under section 2 of this Act but considers that it requires further information before-

(a)

determining whether the defendant has benefited from drug trafficking, or

(b)

determining the amount to be recovered in his case by virtue of that section, it may, for the purpose of enabling that information to be obtained, postpone making the 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.

............

(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.

.......

(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 relevant offence or any of the relevant offences.

(8)

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

(a)

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

(b)

in subsection (5)(c), after "determining" there were inserted "in relation to any offence in respect of which he has not been sentence or otherwise dealt with".

(9)

In sentencing, or otherwise dealing with, the defendant in respect of the relevant offence or any of the relevant offences at any time during the specified period, the court shall not-

(a)

impose any fine on him; or

(b)

make any such order as is mentioned in section 2(5)(b)(ii) or (iii) of this Act.

(10)

Where the court has sentenced the defendant under subsection (7) above during the specified period it may, after the end of that period, vary the sentence by imposing a fine or making any such order as is mentioned in section 2(5)(ii) or (iii) of this Act, so long as it does so within a period corresponding to that allowed by section 155(1) or (2) or the Powers of Criminal Courts (Sentencing) Act 2000 (time allowed for varying a sentence) but beginning with the end of the specified period.

(11)

In this section –

"the date of conviction" means –

(a)

the date on which the defendant was convicted; or

(b)

…”

We turn to the relevant equivalent provisions of the Criminal Justice Act 1988 which made provision for confiscation following conviction for serious offences other than drug trafficking offences. Section 71 provided:

In R v. Soneji and another[2005] UKHL 49, Lord Rodger said about this section:

32.

When section 71(1) is engaged, it imposes a duty on the court to act as required by subsections (1A) and (1B) and, where appropriate, to make a confiscation order "before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct." This duty is to be contrasted with the mere power, which the court has under subsection (1C), to make such an order if it is satisfied that a victim of the crime intends to take civil proceedings against the defendant. Section 71(1) requires the court to take these steps before proceeding to sentence. But, in practice, the Crown may not have the necessary financial information readily to hand immediately after the defendant is convicted, or else the defendant may challenge some of it and there may need to be an inquiry into the facts. All of this takes time and so, if the confiscation order has to be made before any sentence can be imposed, the defendant may be left in an uncomfortable limbo. From every point of view, there will often be much to be said for the court proceeding to sentence before deciding about the confiscation order. The defendant can then get on with serving his sentence. Parliament recognised this and so, to allow the court to sentence first, by section 28 of the Criminal Justice Act 1993 it inserted section 72A into the 1988 Act.

Section 72A provided:

(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.

...

(5)

A postponement or extension under subsection (1) ... above may be made—

(a)

on application by the defendant or the prosecutor; or

(b)

by the court of its own motion.

...

(7)

Where the court exercises its power under subsection (1) ... 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;

....

(9)

In sentencing, or otherwise dealing with, the defendant in respect of the offence, or any of the offences, concerned at any time during the specified period, the court shall not -

(a)

impose any fine on him; or

(b)

make any such order as is mentioned in section 72(5)(b) or (c) above.

(9A)  Where the court has sentenced the defendant under subsection (7) above during the specified period it may, after the end of that period, vary the sentence by imposing a fine or making any such order as is mentioned in section 72(5)(b) or (c) above so long as it does so within a period corresponding to that allowed by section 155(1) or (2) of the Powers of Criminal Courts (Sentencing) Act 2000 (time allowed for varying a sentence) but beginning with the end of the specified period."

As to this section Lord Rodger said:

Where the court considers that it requires further information before making a determination, under subsection (1) it may, for the purpose of enabling that information to be obtained, postpone making the determination. But, unless in exceptional circumstances, the period of postponement must not exceed six months from the date of the defendant's conviction. If the court exercises this power and postpones the determination, under subsection (7) the court may nevertheless proceed to sentence the defendant and, where it does so, under subsection (8) section 71(1) has effect as if the words requiring the court to act before sentencing were omitted. Put shortly, if the court postpones the determination of a matter relating to the confiscation order, it can still sentence the defendant and, if it does so, the words in section 71(1) which require the confiscation order to be made first are deemed to be omitted.

It can be seen immediately that the regimes under the two pieces of legislation are, in so far as the duty to make a confiscation order and the power to postpone, very similar. There are, in our view, no relevant distinctions.

We turn to the hearing on 22 March. In the words of the Reference:

(vii)

On 22^nd March 2004 the judge declined to proceed to make determinations under the Drug Trafficking Act 1994. Further, he declined to adjourn the matter, finding that there were no exceptional circumstances which permitted him to do so. He found that he was bound by the decision of the Court of Appeal in Rv Pisciotto [2002] EWCA 1592 , a decision which had in fact been expressly overruled by the Court of Appeal in Rv Sekhon [2003] 1 WLR 1655 and Regina v. Simpson [2003] 3 WLR 337 [also [2003] EWCA Crim 1499 and [2003] 2 Cr App R 36]

(viii)

In the course of argument on 22^nd March 2004 the following exchange took place:

“CROWN COUNSEL: It is on page 22, the left hand side of the page. It is the case of Copeland:

“Requirement to specify a period of postponement is directory only. Failure to specify a period will not therefore per se deprive the court of jurisdiction to make a confiscation order thereafter.”

JUDGE: Provided we stick within the time limit.

CROWN COUNSEL: As far as Mr Legall is concerned, it is six months from the date of conviction today. So I say I am within the time limit, whether there was an extension or not, which is why we had the case moved from Wednesday [24.3.04] when it was originally listed.

The reason given by counsel for the prosecution for the delay in serving the papers comes clear from the following extract of the transcript:

JUDGE DENYER: Yes, but the confiscation period has to take place within six months. By virtue of your total failure – and I don't mean you as an individual – the total failure to serve a mass of information until the last moment, you have rendered it effectively impossible for the hearing to take place within six months.

MR GRIFFITHS: Your honour, we could commence the hearing.

JUDGE DENYER: Oh no. That's a dodge that has been tried lots of times, and in my view it is not a permissible dodge because it enabled you, and I mean you collectively, to escape from the consequences of complete lack of diligence. This could have been done and should have been done at least a month ago, if not two months ago, and so far I have not had any explanation from you as to why it has taken six months in the case of Mr Legall to produce this at the end of last week.

If you want to take instructions, you may, because it seems to me that that goes to the absolute heart of this case. I need a proper explanation before I can even get to the starting gate of considering whether there are exceptional circumstances. I need a proper explanation as to why it has taken this long to serve this information on Mr Legall and his team.

[Adjournment granted]

MR GRIFFITHS: Your Honour, thank you. The investigation required detailed analysis of both defendants' expenditure in terms of proving what could be shown to be benefit. In that regard, it is particularly difficult when they are not in employment and it is only cash that is dealt with. The biggest delay related to an address known as 69 Pomeroy Street. It didn't feature in the trial. It was premises that the Crown intended to assert had been purchased by Raymond Legall by means of benefit from drugs trafficking. That necessitated letters of request to the United States in order to track down the material. We still haven't had a response to that, but having had a conference with leading counsel and myself on 11th March to see what progress has been made, it was decided that the Crown would not seek to confiscate 69 Pomeroy Street, and that is why it does not appear now in the section 11 statements.

Having had the conference on 11th March, the material was sent out on the 12th as a result of that conference and omission in particular of the house in Pomeroy Street. But we had been diligently tracking down all available assets from November of last year onwards, and given the complex nature of this case, we submit we have proceeded as well as we could in the circumstances. It was being contemplated asking for a postponement because of the 69 Pomeroy Street matter, but having had advice from leading and junior counsel, it was decided to omit that. So that application was not made.

JUDGE DENYER: Yes.

MR GRIFFITHS: Your Honour, similarly in respect of her, she had a large quantity of cash in the bank, some £66,000. She had no visible means of support to justify that, and extensive enquiries were carried out to try and justify that sum of money. Your Honour sees from the section 11 statement that, in the result, what is contended for is a benefit of at least £56,000, bearing in mind the money that passed through the account and what was available. The difficulties were such that we couldn't track down any further assets or employment that she had obtained.

It was suggested that she worked as a prostitute on occasions, but we had no way of verifying the income from that. Your Honour, those are my submissions in respect of both defendants.

The judge ruled:

“Section 1 of the Drug Trafficking Act 1994 defined drug trafficking offences. Amongst that which is described as a drug trafficking offence is a conspiracy to supply cocaine. These defendants, in various respects, were convicted of drug trafficking offences. That being so, their offences fell within the ambit of the Drug Trafficking Act 1994.

Section 2 of the 1994 Act deals with the making by a court of a confiscation order. As part of that, a court has to determine whether or not a defendant has benefited from drug trafficking, and by s. 2(4), if the court determines that the defendant has so benefited, the court shall, before sentencing in respect of the offence, determine the amount to be recovered by way of the confiscation order.

Section 3 of the Act gives rise to a power to postpone the making of a confiscation order, albeit that sentencing has taken place. By section 3(1) of the Act:

“Where the Crown Court is acting under section 2…(ie. contemplating the making of a confiscation order) …but considers that it requires further information before so doing, it may, for the purpose of enabling that information to be obtained, postpone the making of the determination for such period as it may specify”

I will carry on with section 2, although we may have to come back to individual subsections in a moment. By section 2(2), more than one postponement may be made under subsection (1) above in relation to the same case. Then there is section 3(3):

“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, exceeds six months beginning with the date of conviction”.

For the sake of completeness, let us spell out, section 3(11) clearly indicates that the date of conviction means the date on which the defendant was convicted.

So far as Tracey Macaulay is concerned, she pleaded guilty on 1^st April 2003. That is nearly, bar two weeks, twelve months ago. That is the date of conviction in her case. She was not sentenced until 13^th November 2003. So far as Mr Legall is concerned, he pleaded guilty on 22^nd September 2003, and was sentenced on 13^th November 2003.

In the case of Miss Macaulay, it is I think conceded that I did make a judicial determination to postpone the hearing of any confiscation proceedings, but that in any event I fixed the 15^th March 2004 as the date upon which the confiscation hearing should take place. In the case of Mr Legall, the position is less clear. Mr Davies no doubt reserves to himself the right to assert, after listening to the appropriate tape, that in fact no proper judicial determination was made at the time of sentencing to postpone the making of any confiscation order.

In the case therefore of Miss Macaulay, the six month period which prima facie is the maximum allowable time for the making of the confiscation order, expired, as I indicated, some considerable period of time ago. In the case of Mr Legall, the appropriate time for the making of an order expires at midnight tonight.

Let me return to the words of the section. The determination which has to be made, including a postponed determination, pursuant to section 3(1), is whether or not a defendant has benefited from drug trafficking, and what if any are the assets available to be confiscated to represent that benefit. It is not – repeat not- six months for the Crown to serve their statement in which they set out matters upon which they rely as giving rise to an assumption of benefit. It is, as I say, the determination shall be within the six month period, absent exceptional circumstances. I will revert to exceptional circumstances in a moment.

I have already outlined the timetable in terms of plea and sentence so far as both defendants are concerned. In both their cases the prosecutor’s statement, wherein they set out their case in support of confiscation, was not served until Monday 15^th March 2004. In the case of Miss Macaulay, it was effectively therefore the date that I had specified as being the date on which the hearing could take place. In the case of Mr Legall, it was a mere seven days or so before the six month period was up.

It is quite impossible for either defendant properly to answer that which is set out in the prosecutor’s statement. In the case of Miss Macaulay, given a notional hearing last Monday, it would have been impossible for her fairly to deal with it., and in the case of Mr Legall, to expect him to deal with these complicated matters within the space of seven days would be unfair. I observe in passing and comment in passing that the Article 6 right of a defendant to have a fair trial applies just as much to confiscation proceedings under the 1994 Act as it does to the initial trial process itself in and about the determination of the guilt or otherwise of a defendant.

There is abundant authority, subject to one matter only to which I must return, to the effect that the 1994 Act sets out what is on any view a penal regime. As such, precisely because it sets out a penal regime, where assumptions adverse to a defendant can be made, where significant property can be taken from a defendant and where a defendant’s sentence can be significantly increased if he or she does not comply with the confiscation order, I have no doubt that it is appropriate that the provisions be construed strictly.

In the case of Pisciotto [2003] Cr. App. R. 4, the Court of Appeal, who are of course binding on me, clearly indicated that:

“The penal nature of the Drug Trafficking Act 1994, when dealing with confiscation orders, justified a strict interpretation of section 3, which provided inter alia that the court might, for the purpose of enabling further information to be obtained, postpone making the determination for such period as it may specify. The requirement to specify the period was mandatory. No particular form of wording was needed, so long as the judge at the time of passing sentence made clear that he had exercised his discretion and made clear the period for which the determination was postponed. If he failed to specify a period or if he expressed himself ambiguously, it was the duty of counsel to remind the judge of the statutory requirements.”

In that case the judge failed to specify the period of postponement, didn’t comply with section 3: the determinations were unlawful.

That is not precisely the same point as that which I am concerned. What I am concerned with is whether in fact any exceptional circumstances exist that would justify postponing the hearing of these confiscation proceedings beyond the six on the period, which in the case of Mr Legall expires tonight and in the case of Miss Macaulay has expired some considerable while ago.

It is suggested, on the basis of another Court of Appeal decision, likewise binding on me, the case of Sekhon [2002] EWCA Crim 2954, that in fact a more liberal or less prescriptive regime is to be adopted, and it is undoubtedly true, for example, that the Court of Appeal did not approve of the decision in Pisciotto to which I have referred. But there are two problems. Firstly, I am but a circuit judge and decisions of the Court of Appeal are binding on me, and I cannot pick and choose between Court of Appeal decisions. Secondly, and rather more importantly, is and in so far as a Court of Appeal decision specifically deals with the Drug Trafficking Act 1994, that is clearly and obviously pertinent to any decision I have to make, and I note that the case of Sekhon was not in fact a Drug Trafficking Act case but was concerned with confiscation proceedings in respect of evasion of duty.

It seems to me therefore that I remain bound to take a strict approach to the 1994 Act, but decisions in respect of other Acts may not in fact be binding upon me, whereas decisions of the Court of Appeal in respect of the 1994 Act clearly and obviously are.

I go on and revert for the moment to section 3(3). Bearing in mind, as I say, that the six month period for Mr Legall expires tonight and clearly and obviously that there cannot be a fair determination so far as he is concerned as to the question of benefit, I have to ask myself, are there exceptional circumstances which would justify postponing the determination of the question. I note in the notes in Archbold 5-485, item G:

“The determination, whether the circumstances which are relied on to justify a postponement beyond the period of six months from the date of conviction are exceptional, is a matter within the discretion of the sentencing judge, and the Court of Appeal will not readily interfere. The question for decision on appeal is not whether the Court of Appeal would have held the circumstances to be exceptional, but whether the judge was entitled to conclude that the circumstances were exceptional.”

I do not belong to the school of jurisprudence that says that words mean what I want them to mean, and it seems to me that the words “exceptional circumstances” in the Act mean just that. There have to be circumstances out of the ordinary. There have to be factual matters out of the ordinary which justify giving a label to a set of facts as being “exceptional”.

I asked Mr Griffiths [prosecution counsel] what in the facts of this case he could rely upon for the purpose of giving rise to the legitimate application of the epithet exceptional circumstances. And we really come down to this. There were difficulties in ascertaining the ownership of 69 Pomeroy Street. But apparently, according to Mr Griffiths, it wasn’t until 11^th March – I may have got that date wrong by one day; it doesn’t matter – that a decision was taken by leading counsel, as then he was, and junior counsel, Mr Griffiths, that they would, so to speak, draw a line through 69 Pomeroy Street and would go ahead with what they have got.

Of course I accept that this was not the easiest of cases. Of course, I accept that for once, for example in the case of Mr Legall, there were properly assets that needed to be looked at and financial matters which needed to be enquired into. But it does not seem to me that anything has been put forward which I could conscientiously regard as giving rise to a legitimate finding of an exceptional circumstance that would justify postponing the consideration of the making of the confiscation order beyond the period of six months; (to use the impermissible Latin) a fortiori in the case of Tracey Macaulay. They have had far longer in her case. I suspect it was a much simpler issue, but the point is that they have had far longer. I specified a date by which time the hearing should take place. It did not.

In both her case and Mr Legall’s case, I decline to find that there are any exceptional circumstances what would justify postponing the confiscation hearing out with the period of six months. I would regard any attempt to assert, “Well, we have opened the proceedings today. Now we will adjourn it for several weeks to enable the defendants to deal with it” as effectively being a misuse of the court process.

In those circumstances, it seems to me that the applications for confiscation orders must fail on procedural grounds; that there has not been a determination within six months. No proper argument has been put forward to justify why it should go out with the six months, and there has quite frankly therefore been a degree of diligence [sic] on the part of, in the widest sense of the word, the prosecuting authorities, which in my view wholly fail to justify the delay which has in fact occurred.

If it means that Mr Legall keeps gains to which he would not otherwise be entitled, so be it. People like him are just as entitled to have the rule of law apply to them as the most upright and outstanding member of the community. That is the end of it.

Neither Mr Davies nor Mr Jenkins sought to uphold the judge’s conclusion that Rv Pisciotto was of assistance in construing the meaning of the word “exceptional circumstances.” The decision was no longer binding after Sekhon and Simpson. In Sekhon (paragraph 44) Lord Woolf CJ giving the judgment of the Court said

… in R v Pisciotto [2002] EWCA Crim. 1592, (Keene LJ, Davis J and the Recorder of Cardiff) it was decided that a failure to specify the period of the postponement was fatal to the making of a confiscation order and the reasoning in Davis was to be preferred to the reasoning in Copeland. We respectfully disagree and would prefer the reasoning in Copeland.

In Copeland the Court had held that a failure to specify a period of postponement did not deprive the Crown Court of jurisdiction to make a confiscation order.

The judge was also, in our view, in error when he drew a distinction between the two Acts. It was Sekhon from which the judge had to derive the appropriate help in determining the meaning of the word exceptional circumstances.

In Sekhon the Court said:

27.

In relation to the procedural requirements which Parliament has imposed it is possible fairly readily to come to certain conclusions. These are as follows:

i)

Since the 1988 Act was passed, Parliament has been attaching increasing importance to courts being in a position to make confiscation orders. For that reason it has relaxed the requirements of the order having to be made as part of the original sentencing process. In the 1988 Act in its unamended form, the court was unable to proceed to sentence until the court had gone through the procedural steps and dealt with confiscation. The subsequent amendments gave the court power to adjourn sentencing but care was taken to specify the limits on the power to postpone its decision to order confiscation. (See S.28 of the 1993 Act and the terms of S.2A of the 1988 Act inserted by S.28.) This process was continued by the 1995 Act which extended the court's powers.

ii)

Parliament was intent on ensuring that wherever practicable the process of making a confiscation order and sentencing should be linked. It can be readily understood why Parliament should have adopted this course. After all, it is important that the defendant should know as soon as practicable what are the consequences to him of his conviction. Parliament, therefore, when it did relax the requirements did require the court to be satisfied that if it was to grant a postponement or extension there were "exceptional circumstances" to justify this. (see S.72A(6))

28.

On the other hand we suggest that it would not have been the intention of Parliament to exclude the jurisdiction of the court in relation to the making of confiscation orders because of procedural defects of a technical nature that caused no injustice to the defendant.

The Court in Sekhon required a court to ask itself: “what was the effect of non-compliance with the language” of the statute?” The Court disapproved of a number of decisions in which failure to comply with the requirement of the statute had led to the quashing of a confiscation order for lack of jurisdiction.

We turn to Simpson decided, as we have seen, in May 2003. Simpson, a decision of a five judge Court presided over by Lord Woolf, approved and applied Sekhon.

Having concluded that the judge was in error in relying on Pisciotto in reaching his decision as to the meaning of “exceptional circumstances”, we must now reassess the issue faced by the judge afresh.

Counsel for the Offenders argue that the judge’s conclusions about the absence of exceptional circumstances remains correct notwithstanding the errors and submit (rightly) that the section requires the judge to find exceptional circumstances before postponing the determination to a date longer than six months after conviction.

Mr Penny accepted, rightly in our view, that the judge could not have made the determination that day and that the judge was right not to start the hearing and immediately adjourn it, as he was asked to do by counsel for the prosecution. The judge understandably described that as a “dodge” which had been “tried lots of times.” On the other hand the judge, if he was not going to grant a postponement, clearly required further information from the defendants before making a confiscation order.

When considering whether there are exceptional circumstances, it must be borne in mind that there is a duty on the court to make an order, a matter emphasised in Soneji (see eg paragraphs 5 and 57).

It is not clear from the transcript how long any adjournment would have to have been. It was agreed before us that the determination could have taken place in, at the most, one month. That must be an important factor in deciding whether there are exceptional circumstances, particularly when one considers the duty on the court to make a confiscation order.

The fact that no timetable had been laid down for the service of the prosecutor’s statements is, in our view, also a relevant factor to be taken into account.

In determining the meaning to be given to the expression “exceptional circumstances”, it is helpful to ask whether any failure formally to postpone the making of the determination or any failure to decide whether there were any exceptional circumstances, would have affected the jurisdiction of the court to make a determination later. In the light of Soneji (decided after the ruling) the short answer to that question now is “No”, even assuming the judge would not have been entitled to postpone the determination beyond the six month period. That must assist in determining the meaning to be given to the expression. It suggests that the expression should not be given too strict a meaning. We should add that, as Soneji makes clear, the court may refuse to make an order on the grounds that there has been an abuse of the process of the court (see e.g. paragraphs 24 and 42).

It is of some note that the judge did not hold that he had no jurisdiction to make a determination because of the failure to comply with the statutory requirements in the earlier stages of the proceedings in so far as both Offenders were concerned. There had, for example, been no finding of exceptional circumstances in the second Offender’s case to justify postponement in the earlier stages of the proceedings. Indeed there had been no formal postponement until the day she was sentenced, by which time some 7 months had passed since conviction..

In Soneji the House of Lords has given guidance as to the meaning of “exceptional circumstances” in the context of a postponement of a determination. Lord Steyn said:

28 … there were competing arguments about whether the requirement of "exceptional circumstances" in section 72(A)(3) should be strictly construed. In lower courts a very strict approach has sometimes prevailed. An expression such as "exceptional circumstances" must take its colour from the setting in which it appears. Bearing in mind the context I would not adopt a very strict approach to the meaning of exceptional circumstances.

Lord Rodger said:

“33.

I also agree [with Lord Steyn], however, that "exceptional circumstances" in section 72A(3) should not be interpreted too narrowly. The court must comply with the six-month requirement wherever reasonably possible, even if this means that its timetable has to be adjusted accordingly. Nevertheless, I would certainly not rule out the possibility that some listing difficulties could amount to "exceptional circumstances". But the judge must look into the position and see what can and cannot be done.”

Lord Cullen said that: “"Exceptional circumstances" in subsection (3) does not have to be given a strict interpretation.” Later in his speech he said:

57.

Lastly, and most fundamentally, section 71 creates a duty on the court to consider the making of a confiscation order. The repeated use of the expression "jurisdiction" tends to distract attention from the fact that what is in issue is not the loss of a power to consider the making of such an order but the dissolution of a duty to do so. It is a duty which Parliament plainly envisaged as capable of subsisting after the offender had been sentenced and after more than six months since his conviction. The power of postponement under section 72A is expressly for the purpose of enabling the court to do its duty, whether information is awaited from the prosecutor or the offender. That is not to say that the six month period can simply be ignored: the court must do the best that it reasonably can to comply with subsection (3). …

Lord Carswell,who agreed with Lord Steyn, identified two ways of approaching the problem:

64.

… First, one can give the phrase "exceptional circumstances" a broad and purposive construction, as Lord Steyn has proposed in paragraph 28 of his opinion. …

In the following paragraph Lord Carswell adopted that interpretation.

Lord Brown agreed with Lord Steyn and Lord Rodger.

Looking at the matter afresh, we have no doubt that there were “exceptional circumstances” (as that phrase is now to be interpreted) within the meaning of section 3(3). The prosecution had explained the delay in our view satisfactorily by reference to difficulties about 69 Pomeroy Street, no time table had been set, only about one month’s adjournment was required and this was not a case where there had been an abuse of the process of the court.

Mr Jenkins submitted that the facts of the second Offender’s case were different and that we should not find exceptional circumstances in her case. In our view the two cases were closely linked and the determinations had, sensibly, to take place at the same time.

Thus we find that the failure to make confiscation orders against the two Offenders was unduly lenient.