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, and must not allow procedural or technical failures to defeat that purpose. Courts should rather look to see whether the defect was the source of unfairness to the defendant. The use of mandatory terms within a statute was not determinative, but provisions supporting the substantive purpose of the statute should be supported. The doctrine of waiver had no value in this context. Parliament had tried to retain the link between sentencing and confiscation, and so should the courts. The purpose of rules of procedure is not usually to give or take away the court’s jurisdiction: ‘There is no doubt that difficulties for courts exist in applying the distinction between mandatory requirements, on the one hand, and directory requirements on the other. Even if the terms ‘directory’ and ‘mandatory’ are not used the problem remains of answering the question ‘what is the effect of non-compliance with procedural requirements?’ What is necessary, as indicated by Lord Campbell LC in Liverpool Borough Bank v Turner (1860) 30 LJ Ch 379, 381, is ‘to try to get at the real intention of the legislature, by carefully attending to the whole scope of the statute to be construed’.’
Lord Woolf CJ observed: ‘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’
However: ‘We would expect a procedural failure only to result in a lack of jurisdiction if this was necessary to ensure that the criminal justice system served the interests of justice and thus the public or where there was at least a real possibility of the defendant suffering prejudice as a consequence of the procedural failure.’
Judges:
Mr Justice Holland, The Honourable Mr Justice Keith, Lord Chief Justice Of England And Wales Lord Phillips
Citations:
Times 27-Dec-2002, [2003] 1 Cr App R 575, [2003] 1 WLR 1655, [2002] EWCA Crim 2954
Links:
Statutes:
Criminal Justice Act 1988 71, Drug Trafficking Act 1994 2 3
Jurisdiction:
England and Wales
Citing:
Doubted – Regina v Davies CACD 22-May-2001
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.
Cited – Liverpool Borough Bank v Turner 1860
The court considered how to decide what would be the consequences of failing to comply with a statutory requirement. Lord Campbell CJ said that the court should look at the importance of the provisions in question and to look at the real intention . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Jeyeanthan; Ravichandran v Secretary of State for the Home Department CA 21-May-1999
The applicant had failed to comply with the Rules in not using the form prescribed for appliying for leave to appeal against a special adjudicator’s decision to the Immigration Appeal Tribunal. The application, by letter, included all the relevant . .
Cited – Attorney General’s Reference (No 3 of 1999) (Lynn) HL 15-Dec-2000
A DNA sample had been wrongfully retained after the suspect had been acquitted, and the sample had been used in a later investigation to identify him. A subsequent sample had been taken, and the result of that second test had been used as evidence . .
Preferred – Regina v Copeland CACD 2002
The court considered the necessary of any postponment of a dermination of a confiscation order.
Held: The court rejected the contention that the postponement order must specify the period of postponement. It was pointed out that the word used . .
Disappoved – 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 . .
Disappoved – Palmer, Regina v CACD 11-Oct-2002
The defendant appealed against a very substantial confiscation order. The prosecution had served notices under sections 71 and 72(1), but the section 72(1) notice was invalid. The judge allowed a second notice to be served, and the case to be . .
Cited by:
Cited in – Regina v Secretary of State for the Home Department Ex Parte Jeyeanthan; Ravichandran v Secretary of State for the Home Department CA 21-May-1999
The applicant had failed to comply with the Rules in not using the form prescribed for appliying for leave to appeal against a special adjudicator’s decision to the Immigration Appeal Tribunal. The application, by letter, included all the relevant . .
Disapproved in – 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 . .
Disapproved in – Palmer, Regina v CACD 11-Oct-2002
The defendant appealed against a very substantial confiscation order. The prosecution had served notices under sections 71 and 72(1), but the section 72(1) notice was invalid. The judge allowed a second notice to be served, and the case to be . .
Cited – Regina v October CACD 27-Feb-2003
The court had adjourned its proceedings in the absence of the defendant, so as not to fall foul of the requirement that a confiscation inquiry must take place within six months of conviction. The defendant appealed.
Held: The court could . .
Applied – Regina v Clayton CACD 1-Apr-2003
A confiscation order had (inter alia) been made after convictions for cheating the public revenue, but the notice of the proceedings had misdescribed the statutory basis.
Held: The mistake was procedural rather than substantial, and on the . .
Applied – Ruddick v Regina CACD 16-Apr-2003
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 . .
Cited – Simpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .
Cited – Regina v Soneji; Regina v Bullen CACD 20-Jun-2003
If the court could only postpone confiscation proceedings in exceptional circumstances, it behoved the court before allowing such an adjournment to enquire into the justification, and to record the circumstances which made it exceptional. The . .
See Also – Singh v Director of the Assets Recovery Agency CA 17-May-2005
The defendant had successfully appealed a confiscation order which had been made without jurisdiction, but now claimed that that exempted those assets from later civil proceedings to recover the criminal proceeds.
Held: The failure of the . .
Cited – Seal v Chief Constable of South Wales Police CA 19-May-2005
Mr Seal noisily objected to a neighbour blocking in his car. Police were called who took him into custody under the 1983 Act. He was released several days later, and eventually sought damages for his wrongful treatment. He had failed to first seek . .
Cited – Regina v Flowers, Graver and Cunningham, Smith and Bradley; Attorney General’s references No 114 of 2002, 115 of 2002 116 of 2002, 144 of 2002, 145 of 202 CACD 26-Nov-2003
. .
Cited – Kasperbauer; Griffith v Griffith; Havens; Zorab and Griffith CA 21-Nov-1997
. .
Cited – Regina v McCready CACD 14-Feb-2003
Conviction of offences of being concerned in the importation of controlled drugs, namely cocaine, ecstasy and amphetamine. McCready was sentenced to 18 years imprisonment. Complaint that no adjournment before confiscation order. . .
Cited – Barrington and Others, Regina v CACD 2-Apr-2003
. .
Cited – Haisman and Others, Regina v CACD 31-Jul-2003
Three appeals concerning the legality of certain Confiscation Orders. . .
Cited – Young v Regina CACD 4-Dec-2003
The appellant had been convicted of VAT fraud. His company collected sums for charity but hid substantial receipts. He appealed his sentence on the grounds of disparity with his co-defendants. The fraud was substantial and organised.
Held: The . .
Cited – Aslam, Regina v CACD 22-Oct-2004
The appellant had pleaded guilty to a number of offences of dishonesty and asked for a number of others to be taken into consideration. One of the offences to which he had pleaded guilty and one of those which he had asked to be taken into . .
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 . .
Appeal from – 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 . .
Cited – Director of Public Prosecutions v Wood; Director of Public Prosecutions v McGillicuddy Admn 19-Jan-2006
Each defendant sought disclosure of materials concerning the intoximeter instruments, having been charged with driving with excess alcohol. The defendants said that the meters were inaccurate and that the manufacturers were in effect part of the . .
Cited – Ashton , Regina v; Regina v Draz; Regina v O’Reilly CACD 5-Apr-2006
The court considered three appeals where there had been a procedural irregularity, and where the judge had taken some step to overcome that irregularity. In two cases the Crown Court judge had reconstituted himself as a district judge to correct a . .
Cited – In re Hill and Others (Restraint Order) CACD 20-Dec-2005
The Revenue appealed against discharge of a restraint order. The discharge had been on the basis that some of the offences under investigation (perpetrating a fraud on the revenue) took place before the 2002 Act came into effect.
Held: The . .
Cited – Rowe v Regina CACD 15-Mar-2007
The defendant had been convicted of possessing articles for terrorist purposes, namely a notebook with notes setting out how to construct a mortar bomb in his handwriting. There was also a coded list of potential targets.
Held: The decision in . .
Cited – Clarke, Regina v; Regina v McDaid HL 6-Feb-2008
An indictment had not been signed despite a clear statutory provision that it should be. The defects were claimed to have been cured by amendment before sentence.
Held: The convictions failed. Sections 1(1) and 2(1) of the 1933 Act which . .
Cited – Westminster City Council v Owadally and Another Admn 17-May-2017
Defendant must plea to charge, and not counsel
The defendants had, through their barrister, entered pleas of guilty, but the crown court had declared the convictions invalid because this had to have been done by the defendants personally, and remitted the cases and the confiscation proceedings . .
Cited – Lalchan, Regina v CACD 27-May-2022
Conviction withoiut required Consent was Unsafe
Whether a conviction for an offence which requires the consent of the Attorney General before the proceedings are instituted can stand when no such consent was obtained.
Held: The appellant’s arguments were well-founded and his conviction on . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Criminal Sentencing
Leading Case
Updated: 30 June 2022; Ref: scu.178440
