Practice and Procedure


PUBLISHED March 10, 2003

The decision to extend time for confiscation proceedings at a hearing at which the defendant had not attended was valid.Appeal against a confiscation order. The appellant ('D') had pleaded guilty to one offence of drug trafficking. In confiscation proceedings following her conviction D was found to have benefited from drug trafficking and a confiscation order had been made. D's guilty plea had been entered on 11 August 2000. On that date there had been no express reference to confiscation proceedings. The case had then been listed for mention on 29 January 2001. On that date, D had not appeared and the judge had granted a six-month extension on the confiscation proceedings. On appeal D had submitted that the confiscation order had been unlawful in that, within the six-month period from the date of conviction, no valid decision had been made to postpone the confiscation proceedings for a period in excess of six months' of conviction. Therefore, the decision to postpone the confiscation proceedings for six months' had been made without jurisdiction in that it had not been made at a time when D had appeared before the court to be sentenced for a drug trafficking offence.HELD: (1) It could not be said that D had appeared before the court to be sentenced on 11 August 2000. The expression had to be given its natural meaning. There had never been any question of D being sentenced on that date. On 11 August 2000 the court had not exercised any statutory power under ss.2 or 3 Drug Trafficking Act 1994. The same was true of 29 January 2001. (2) Section 3 of the 1994 Act could only be operated where the court had acted under s.2 of that Act. Section 2 required the trigger of a defendant's appearance before the court for sentence. The opening words of s.3 referred to the provision for a confiscation order in s.2 generally rather than incorporating the specific words in s.2(1). (3) The court had been entitled to anticipate the operation of ss.2 and 3 of the 1994 Act, when D had appeared before the court to be sentenced, and to exercise its common law powers so as to avoid falling foul of the rule that save in exceptional circumstances the confiscation inquiry had to have taken place within six months' of conviction and that an order for postponement could not have been made after the lapse of six months' from conviction. The court had not made any specific decision in August in relation to the confiscation proceedings. However, the position had been very different on 29 January 2001. By then the expiry of the six-month period had been fast approaching. On that date the court had exercised its common law power to extend time for the confiscation proceedings for six months because there had still been exceptional circumstances. (4) If D had succeeded in her appeal the consequences would have been that the court would have been prohibited from holding confiscation proceedings in every case where, for any reason, a defendant had not appeared before it to be sentenced for drug trafficking offences until more than six months' had lapsed from his conviction. This could not have been Parliament's intention.Appeal dismissed.

[2003] EWCA (Crim) 452