Soneji, R v

A confiscation determination postponed beyond six months from conviction requires exceptional circumstances, whether the power relied on is statutory or inherent at common law. The court must conduct a judicial enquiry into the reasons for delay and make a conclusion which amounts to such a finding. The formula need not be used, and the concept may receive a broad construction, but a listing officer’s indication of court availability cannot alone satisfy the requirement.

A failure to meet that safeguard is not a mere procedural defect. It defeats the statutory purpose of prompt confiscation proceedings and renders a later confiscation order unsustainable under the Criminal Justice Act 1988.

The appellants pleaded guilty to conspiracy to convert and remove property while knowing or suspecting that it represented the proceeds of criminal conduct. They were sentenced in 2000. Confiscation proceedings were postponed and orders were eventually made in 2002.

The confiscation hearing had been fixed outside six months from each conviction because the trial judge was unavailable. Although more information was needed, there was no judicial enquiry into whether a timely hearing could be arranged, nor a finding that exceptional circumstances justified the delay. The appellants appealed against the confiscation orders. The central issue was whether those orders could lawfully stand.

1. Appeals allowed. The confiscation orders could not be upheld and were quashed.

2. Section 71 of the Criminal Justice Act 1988 originally required confiscation to be dealt with before sentence. Section 72A created a limited relaxation. Under section 72A(3), postponement beyond six months from conviction requires exceptional circumstances.

3. The same condition governs any inherent common-law power to adjourn or postpone beyond that period. The court accepted that exceptional circumstances may be construed broadly. It followed R v Steele and Shevki [2001] 2 Cr App R (S) 40, R v Chuni [2002] 2 Cr App R 371 and R v October [2003] EWCA (Crim) 452 on that point. A judge need not use the words “exceptional circumstances”, but must consider the reasons for delay and reach a conclusion that amounts to that finding.

4. That process was absent here. The judge fixed a date outside the statutory period on the listing officer’s indication of availability. There was no enquiry into alternative dates, no examination of the defendants’ position, and no analysis capable of supporting a finding of exceptional circumstances. General listing difficulties could not, without judicial scrutiny of the particular circumstances, justify the postponement.

5. The court preserved the principle in R v Sekhon [2002] EWCA Crim 2954 that mere procedural defects do not normally invalidate confiscation proceedings. This omission was materially different from the defective notice considered in R v Palmer [2002] EWCA Crim 2202. It concerned the essential statutory protection against undue delay. Treating it as immaterial would defeat Parliament’s intention.

• Court of Appeal (Criminal Division). Allowed the appeals against the confiscation orders and quashed them: [2003] EWCA Crim 1765.

• Central Criminal Court. Made confiscation orders against Soneji on 28 January 2002, varied on 7 February 2002, and against Bullen on 7 February 2002.

• Crown Court at Southwark. The appellants pleaded guilty in 2000 and were sentenced after the confiscation process had been postponed.