The judge when sentencing the offender set a timetable for the purpose of determinations under the 1994 Act, requiring disclosure of assets and expenditure by the defendant within 28 days and a prosecutor’s statement within 28 days thereafter.
Held: Nevertheless, there had been a breach of section 3 because the court had failed to specify a period for which the determinations were postponed. The Court said:
‘The second use of the word ‘may’ in section 3(1) means, in this context, ‘must’ (see R v Ross . .). The Court in Ross did not give reasons for its opinion that this is the proper construction of section 3(1) and Judge LJ did not deal specifically with it in paragraph 58 of his judgment . . in Steele and Shevki. In our view the mandatory nature of the requirement is established by reading section 3 (1) together with section 3(3). The latter reads: ‘Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) which-‘(a) by itself; or (b) where there have been one or more previous postponements under subsection (1) above or subsection (4) below, when taken together with the earlier specified period or periods exceeds six months beginning with the date of conviction.’
The plain purpose of the section is to place time limits on the determination proceedings. Had Parliament intended merely to set a period within which, subject to exceptional circumstances, the determination must be made, it could, and in our view would, have explicitly so provided. The whole section, particularly subsection (3), is structured upon the assumption that the setting of a period or periods for postponement will take or has taken place. Without the setting of a period under subsection (1), the limitation imposed by subsection (3) does not bite. It follows that either Parliament intended that there should be no limitation when the court chooses not to specify the period, or it intended that the court should specify a period in every case. In our view the latter construction is inevitable.
30. In expressing its decision under section 3 (1), no particular form of words is required, provided that the decision of the court is made before sentence and that the decision of the court is manifest.
The court continued, saying: ‘If no particular form of words is required provided the decision is manifest, then that which is required to be manifest is a decision in compliance with section 3(1), including the period of postponement.’
Despite the timetable, a period had not in fact been specified. The court referred to the ‘necessity to specify a period under section 3(1)’
[2002] 1 WLR 1806, [2001] EWCA Crim 2902, (2002) Crim LR 224, [2001] All ER (D) 268, [2001] 2 Lloyds Rep 348
Drug Trafficking Act 1994 3(1)
England and Wales
Cited by:
Cited – Regina v Pisciotto CACD 27-Jun-2002
The defendant was subject to a confiscation order. The judge had postponed the determination of the amount, but without specifying when it would take place.
Held: The requirement in the Act was mandatory. When deciding to postpone an . .
Doubted – Sekhon, etc v Regina CACD 16-Dec-2002
The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
Held: The courts must remember the importance of such procedures in the fight against crime, . .
Cited – Regina v Pisciotto CACD 27-Jun-2002
The defendant was subject to a confiscation order. The judge had postponed the determination of the amount, but without specifying when it would take place.
Held: The requirement in the Act was mandatory. When deciding to postpone an . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 23 November 2021; Ref: scu.654029