Practice and Procedure


PUBLISHED June 20, 2003

Exceptional circumstances are required to justify postponement of confiscation proceedings more than six months after conviction. Where there was no judicial enquiry or finding as to the possible existence of such circumstances, confiscation orders made nearly two years after conviction were quashed.Appeal by co-defendants ('S' and 'B') against confiscation orders imposed more than six months after the date of conviction. In March and April 2000 S and B respectively pleaded guilty and were convicted on charges of conspiracy to convert property and remove it from the jurisdiction knowing or suspecting it represented the proceeds of criminal conduct. Sentencing was adjourned pending completion of a co-defendant's trial. S and B were informed that confiscation proceedings would be brought against them. All three co-defendants were sentenced in August 2000. On the day of, but prior to sentencing, the confiscation hearing was postponed to October 2000. The judge acknowledged that S and B had not been consulted in relation to the postponement and there was no consideration as to the existence of potential exceptional circumstances. When the prosecution requested a further postponement, S and B objected to the confiscation proceedings on the basis that no proper application for postponement had been made within six months after the date of conviction as required by s.72A(3) Criminal Justice Act 1988. In a ruling on 3 November 2000, the judge found that it was clear by the sentencing date that further information was required for the confiscation hearing. However, the judge stated that the purpose of the postponement was to accommodate listing problems arising from the unavailability of a judge. The judge further stated that it was within the court's inherent common law power to allow postponement, although listing difficulties were not exceptional circumstances, as required under s.72A(3) of the 1988 Act. In 2002 confiscation orders were imposed on S and B.HELD: (1) Exceptional circumstances were required to justify postponement of confiscation proceedings more than six months after conviction whether that postponement is made under s.72A or by exercising the inherent common law power to postpone (R v October (2003) EWCA (Crim) 452). (2) The lack of judicial enquiry into the existence of potential exceptional circumstances and failure to make a finding on that point rendered the postponement of the proceedings and therefore the confiscation orders invalid (3) To overlook the defects in the decisions to postpone would be contrary to the statutory intention upheld by legal authorities. The confiscation orders had to be quashed.Appeal allowed.

[2003] EWCA Crim 1765