Practice and Procedure

R v SIMPSON (2003)

PUBLISHED June 2, 2003

The judge had jurisdiction to make a confiscation order and any defects in the notice served on the court by the prosecution did not deprive the judge of that jurisdiction.The defendant ('S') appealed against a confiscation order. On 8 January 2001 S pleaded guilty to various counts involving VAT offences. Following a Newton hearing on 1 May 2001 S was sentenced to a total of 30 months imprisonment. A confiscation order was made under s.71 Criminal Justice Act 1988 on 1 February 2002 for over ?200,000 with 18 months imprisonment in default. S appealed against the confiscation order on the grounds that the judge did not have jurisdiction to make a confiscation order unless a notice, which complied with s.72(1) of the 1988 Act, was served and none of the offences on which S was indicted and convicted were committed before 1 November 1995. The notice served on the court by the prosecution was not in the form required by s.72 of the 1988 Act and the Proceeds of Crime Act 1995, which amended s.72, was not in force at the relevans time. S submitted that R v Sekhon & 6 Ors (2002) EWCA 2954 should not be followed so far as it cast doubt on R v Palmer (2002) EWCA Crim 2202. It had not been open to the court to conclude that R v Palmer (supra) had been decided irregularly and for that reason R v Sekhon (supra) should not be followed. The Crown contended that the jurisdiction point was of no substance because the decision in R v Sekhon was a binding precedent as to the status of R v Palmer and accordingly this court should refuse to go behind the R v Sekhon decision.HELD: (1) The court gave leave for the jurisdiction point to be argued to enable S to have the possibility of certifying a question for the House of Lords. It was to be hoped that this decision would put an end to the string of appeals that continued to come before the court. (2) Section 72 of the 1988 Act, prior to being amended by the 1995 Act, required in mandatory terms, the service of notice on the court setting out the information specified in s.72(1). Following the 1995 Act that was no longer necessary as the court could act on its own motion under s.71(1)(b) (as amended). (3) The argument that the 1995 Act could not be relied on failed. There was only one count (count six) on the indictment that could be relied on for stating that the 1995 Act was not in force at the relevant time and the confiscation order was not based on that count. Sections 16(5) and (6) of the 1995 Act provided that s.1, amending s.71 of the 1988 Act, would not apply to a 'person convicted of an offence before the commencement of that section'. Section 16(5) had to be applied so that after the word 'offence' there appeared the words "in respect of which a confiscation order is or could be sought"; otherwise it would lead to the absurd result that if S had been acquitted of count six the confiscation order would have been subject to the 1995 Act, but as he was convicted the confiscation order could not be made. (4) There was no doubt that if the decision in R v Palmer (supra) represented the law then it would be of considerable benefit to S. However, the court (in R v Sekhon) was of the opinion that the law was misunderstood and misapplied in R v Palmer. There were ample grounds for the court to regard the decision in R v Palmer as irregular and therefore not binding. It was made clear that the discretion to depart from a previous precedent should not be exercised lightly but, according to the rules of precedent, a decision which was decided per incuriam could be departed from. (5) Law should not be interpreted contrary to previous authority in a manner which meant that an offender who otherwise would not have committed an offence would be held to have committed an offence. However, that should not apsly to a situation where a defendant, like S, wanted to rely on a wrongly decided case to provide a technical defence. Justice for a defendant was important but equally so was justice for the public at large. To apply the result in R v Palmer in other cases, even though the court of appeal had acted in ignorance of the appropriate approach, would provide an unattractive picture of our criminal justice system's ability to protect the public. (6) In the instant case the judge had jurisdiction and any defects in the notice did not deprive him of that jurisdiction. (7) It was impossible to fault the judge's approach to the amount of the confiscation order.Appeal dismissed.

[2003] EWCA Crim 1499