Practice and Procedure


PUBLISHED March 25, 2003

Confiscation proceedings made after sentencing were a nullity where there had not been a clear judicial decision in open court to postpone them. This was so even where the defendants had submitted to the postponed hearing without demur, agreed the amounts of confiscation orders and not appealed straightaway.Appeal against confiscation orders made by HHJ Altman on 30 March 2000 on the grounds that they were a nullity, not having been arrived at in accordance with the requirements of ss.2 and 3 Drug Trafficking Act 1994. On 23 November 1999 the appellants pleaded guilty to conspiracy to supply a Class B drug (cannabis) and in addition two of them pleaded guilty to conspiracy to pervert the course of justice. They were given custodial sentences. A confiscation hearing under the 1994 Act was, on the day of sentence, purportedly postponed. The issue was whether the postponement had been properly made. The Crown submitted that the appellants had waived their right to assert that any procedural defect rendered the confiscation orders unlawful by their subjection to the postponed hearing without demur (including agreeing the amounts of the orders) and their failure to appeal until the erroneous line of decisions referred to in R v Sekhon (2002) EWCA Crim 2954 had begun to be reported.HELD: (1) The approach to cases of this kind was set out by the Court of Appeal in Sekhon (supra): (a) there must be a judicial decision to postpone, but no particular form of words was necessary; (b) that decision must be made manifest in open court; (c) the decision must be made prior to the completion of sentencing. (2) The judge's brief acknowledgement was not sufficient to constitute a judicial decision because he had not sought the views of defence counsel on the proposal. The fact that defence counsel did not demur from the proposal and the fact that the orders were agreed could not of itself convert the judge's remark into a judicial decision made manifest. (3) A requirement of R v Davis (2001) EWCA Crim 2902 was that a decision to postpone must have been made abundantly plain to anyone sitting in court. (4) No decision to postpone was arrived at before sentence and accordingly the proceedings on 30 March 2000 were a nullity. (5) A repetition of this situation should be prevented by s.14(11) Proceeds of Crime Act 2002.Appeals allowed. Orders quashed.

[2003] EWCA (Crim) 644