The defendant appealed against the making of a confiscation order, saying that the court had erred in the procedure for forfeiting drugs.
Held: The appeal failed. The section contained an express prohibition against making both a forfeiture and a confiscation order. However the object of the act should not be frustrated by the erroneous imposition of a forfeiture order.
The court said of sections 14(11) and (12) (ex tempore):
‘There is nothing in the remaining provisions of the Act which say that if the court makes an order in contravention of section 15(2), it may no longer proceed to hear the application for a confiscation order under section 6. What the Act does say in sections 14(11) and (12) is that a confiscation order must not be ‘quashed’ on the grounds that the procedural defect or error, except if that error was the imposition of a fine, compensation order, forfeiture order or the like within section 13(3). When the Act speaks of quashing of an order it seems to propose an order has been made and an application is made to quash it, presumably on an appeal. On their face, therefore, these two subsections appear to provide that an appellate court may quash a confiscation order even on procedural grounds if, for example, an order for forfeiture has been made under section 27 of the 1971 Act, before the making of the confiscation order. The subsections do not say directly that the court at first instance cannot make a confiscation order in such circumstances. Are they however saying so indirectly?
It seems to us that these two subsections are allowing the appellate court, if it sees fit, to quash a compensation [sic: but McCombe J must have said ‘confiscation’] order on procedural grounds where, for example, there is a danger of double counting or double penalty because the court had made an earlier order of an expropriating nature against a defendant and it should not have done so. The subsections are not imposing a prohibition on the trial court from proceeding with the confiscation proceedings which it has validly postponed ..
We do not consider therefore that either section 15(2), or sections 14(11) and (12) had the effect of depriving the court of jurisdiction to make a confiscation order when there had been a failure to observe the prohibition in section 13(2). None of these provisions state this to be the consequence. It would, in our view, be frustrating the object of the 2002 Act to hold that the erroneous imposition of a trivial fine or, for example, the forfeiture of drug dealing paraphernalia rendered the court powerless to proceed with the substantive confiscation proceedings. A technically erroneous order for forfeiture of illegal drugs is, in our view, an a fortiori case. Such an approach is, we consider, consistent with that of the House of Lords in the recent case of Soneji [2005] UKHL 49; [2006] 1 Cr App R (S) 79 (p 430) …’
Judges:
Sir Igor Judge, President, Mr Justice Gray and Mr Justice McCombe
Citations:
Times 20-Oct-2006, [2007] 1 Cr App R (S) 88, [2006] EWCA Crim 2200, [2007] 1 Cr App R (S) 548, [2007] Crim LR 90
Links:
Statutes:
Proceeds of Crime Act 2002 15(2)(b)
Jurisdiction:
England and Wales
Cited by:
Cited – Guraj, Regina v SC 14-Dec-2016
The defendant had pleaded to charges of possession of drugs with intent to supply. He was sentenced, but then the prosecutor was 14 months’ late serving its notice with regard to the confiscation order under section 16. The crown now appealed . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing
Updated: 02 September 2022; Ref: scu.247608
