A judge was required to take into account a confiscation order before making an order for costs, but that need not invalidate the orders. Was a financial order made before the forfeiture process was complete void or merely a ground for appeal? The words of the statute were mandatory, but it should not be supposed that a failure to follow the order created a nullity. It allowed the defendant instead to appeal and argue that the order might be different. ‘It seems to us that the structure and purpose of the statutory provisions is essentially to ensure that the defendant is not exposed to double jeopardy; that is, he should not be sentenced and then find that he is being punished yet again with a . . confiscation order. . . Two sentencing processes for one offence is unfair; but two or more orders made during one sentencing process is not unfair, even where the orders are not made during just one court appearance. The second and important requirement, as a matter of fairness, is that the one sentencing process should not be protracted over an unduly long period.’
The court considered the time limit of six months: ‘Will a failure to hold a [confiscation] hearing within six months make any [confiscation] order a nullity? If without exceptional circumstances the defendant had not had a [confiscation] order made against him within six months of the date of postponement, then in our view no such order could lawfully be made. The time limit is there to protect the defendant from unfairness through justice being unduly delayed. Like other limitation periods, Parliament has intended a cut-off date which, subject only to exceptional circumstances, entitles a defendant to be free from the risk of further punishment. The fact that the court is given a limited discretion to extend the time beyond that date [‘exceptional circumstances’] supports this view.’
The court then considered the need to set a date when consideration of a confiscation order was postponed: ‘Must the court specify a new date for the resumed hearing? The period of postponement (‘for such period as [the court] may specify’) does not mean that a fixed date must be specified. Parliament cannot have intended that result, since it is obvious that in many cases it is simply not possible or practical to determine a new date then and there. Again, it is the fact that the defendant knows that the sentencing process is not yet over and that there may be more to come that is the essence of the requirement; he is not so concerned to know when, precisely, the matter will come back. Thus, the inability or failure to specify the ‘return’ date does not make the postponement a nullity or render null any order made thereafter.’
Mr Justice Leveson Lord Justice Rose Mr Justice Morison
[2003] EWCA Crim 1061, Times 06-May-2003, [2004] 1 Cr App R (S) 52
Bailii
Criminal Justice Act 1988 72A(9)
England and Wales
Citing:
Applied – Regina v Threapleton CACD 19-Dec-2001
The defendant was made subject to a confiscation order. He appealed on the basis that the court had left two alternatives versions to the jury, and that it should therefore, when making such an order, take the version most favourable to the . .
Applied – 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 by:
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – Regina v Knights and Another HL 21-Jul-2005
The defendants had been convicted of offences involving dealing with goods on which customs duty had not been paid. After conviction a timetable was set for sentencing and for confiscation proceedings. The House considered the making of the . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing
Updated: 20 November 2021; Ref: scu.181389