Practice and Procedure


PUBLISHED February 14, 2003

The failure of the judge to postpone proceedings relating to a confiscation order for a specified period was not fatal to the confiscation order made.Appeal against a confiscation order made under the Drug Trafficking Act 1994, after the judge had found that the appellant ('D') had benefited from drug trafficking in the sum of ?251,828.50. On appeal D did not complain in relation to the confiscation hearing itself, the judge's conclusions as to the amount by which D had benefited or the amount of the confiscation order. The basis of D's appeal was that the judge failed to postpone the hearing or the confiscation proceedings before passing sentence or, alternatively, that the judge ought to have postponed the proceedings for a specified period. D contended that those failures were fatal to the subsequent confiscation proceedings which were therefore a nullity.HELD: (1) Having considered the transcript of the proceedings the court was satisfied that the judge had reached a decision on the application for postponement before passing sentence and had made that decision manifest. The first ground of appeal therefore failed. (2) As to the second ground of appeal, the question was whether the confiscation proceedings, considered in their entirety, were such that the judge had failed to comply with s.3(1) and s.3(3) of the Act. The order made by the judge in the context in which it had been made demonstrated that he had decided that: (a) there was to be a Drug Trafficking Act inquiry; (b) the hearing of that inquiry was to be postponed until after sentence; and (c) the hearing would take place during April or May 1999. Everyone who had been in court when sentence was passed knew perfectly well that the judge had made those decisions. The ultimate question for the court was whether the judge had complied with the statutory requirement to "postpone making the determination for such period as the court may specify". While it would have been preferable for the judge to have added when making his timetabling decision the words "so that postponement will be until a suitable date in April or May 1999", the failure to do so was not fatal to the confiscation order subsequently made and about which no criticism had been made.Appeal dismissed.

[2003] EWCA (Crim) 02