Practice and Procedure


PUBLISHED December 10, 2003

The judge was entitled to conclude that the very short adjournment or postponement of confiscation proceedings was justified by the existence of severe listing difficulties, which amounted to exceptional circumstances within s.72A(3) Criminal Justice Act 1988.The appellant ('Y') was charged in connection with a fraud perpetrated on a charitable organisation by a company with which he was associated. In Bournemouth Crown Court on 9 May 2002 he was convicted on three counts, namely conspiracy to defraud, being knowingly concerned in the fraudulent evasion of VAT and furnishing a false VAT return. Y was sentenced to terms of seven years, four years and 18 months to run concurrently, making a total sentence of seven years' imprisonment. In September 2002 the only one of Y's co-accused ('S') whose prosecution was followed up pleaded guilty to four counts on rearraignment. Consequently Y withdrew his application for postponement of the confiscation proceedings. There was then difficulty finding a date for the confiscation hearing due to the limited availability of counsel, the court and the judge. Ultimately the confiscation hearing began on 28 October 2002. On 6 November 2002 the Crown successfully applied to postpone the hearing to 12 November 2002 on the basis of s.72A(3) Criminal Justice Act 1988. On 15 November 2002 a confiscation order was made against Y in the sum of ?111,105. Y appealed against sentence on the basis that there was an improper disparity between the sentence imposed on Y and that imposed on S. Y also submitted that there were no exceptional circumstances as required under s.72A(3) of the 1988 Act to give the crown court jurisdiction to make a confiscation order over six months after his conviction.HELD: (1) There were a number of features in the case of S that formed a proper basis for a distinction to be drawn between him and Y. Applying the test set out by Lawton J in R v Fawcett & Ors (1983) 5 Cr App(S) 158, there was not any improper disparity that would justify a reduction in the sentence of seven years' imprisonment. The renewed application for leave to appeal in respect of the seven-year term was therefore refused. In light of the amount of VAT involved and the nature of the offence, the term of four years' imprisonment for fraudulent evasion of VAT was manifestly excessive and had to be quashed. A sentence of three years' imprisonment was imposed in its place. The sentence for furnishing a false VAT return was severe but not manifestly excessive. Leave to appeal that sentence was therefore refused. (2) The words "determining" and "determination" in s.72A of the Act connoted the end of the process, that which the court eventually decided. A substantive start to a hearing within the six-month period, which was adjourned beyond that period, did not achieve a determination within the six-month period. A bald proposition that, whatever the circumstances, listing difficulties were incapable of being exceptional circumstances would be wrong. The judge was entitled to conclude that the very short adjournment or postponement that his order provided for was justified by the existence of exceptional circumstances within the statute. The listing difficulties, which were severe, were fully and properly explored and the court had arrived at a just solution that in substance achieved the relevant parliamentary intention. The appeal was based on mere technicality and otherwise had no merit.

[2003] EWCA Crim 3481