McCready, R v

Under section 3 of the Drug Trafficking Act 1994, a Crown Court must make the judicial decision to postpone a confiscation determination before passing sentence. The decision need not be formally announced before sentence if the course of the proceedings makes clear that it was already made and reveals its effect.

The court must also specify a discernible period for the postponement. A fixed hearing date is preferable, but a timetable may validly identify a band of dates within the statutory six-month limit when read in its procedural context. A timetable which leaves the duration entirely at large is ineffective.

The appellant was convicted at Harrow Crown Court of offences concerning the importation of cocaine, ecstasy and amphetamine, and was sentenced to 18 years’ imprisonment. At sentencing, the prosecution sought a postponement of confiscation proceedings while financial enquiries and statements were completed. The judge imposed sentence and immediately gave directions for the prosecution’s statement and the defence response.

A later confiscation order required the appellant to pay £251,828.50. He did not challenge the benefit finding or amount. He contended that the judge had neither decided to postpone before sentencing nor specified the period of postponement, so that the later proceedings were a nullity.

1. Appeal dismissed. The confiscation order was valid. The trial judge had decided before passing sentence that the confiscation determination would be postponed. Although he announced the consequential directions only after sentence, that did not invalidate the decision.
2. Section 3 requires a judicial decision to postpone before sentence, followed by a postponement for a period specified by the court. The decision must be manifest, but no particular verbal formula is required. The court applied the approach in Ross [2001] 2 Cr. App R (S) 484 and Steven Davies [2001] EWCA(Crim) 2902.
3. On the transcript, the parties agreed that there would be a postponement. Their only dispute concerned the timetable. The judge’s statement that he would deal with the matter later concerned those directions, not whether a postponement should occur. His later apology showed that he had omitted to announce a decision already reached, rather than that he had deferred the decision itself.
4. The judge also effectively specified the postponement period. The prosecution had proposed a hearing in April or May 1999 after the exchange of statements, and the defence advanced a timetable which likewise contemplated a May hearing. The directions ultimately given were consistent with that period. The case was therefore unlike Pisciotto [2002] EWCA (Crim) 1592 and the relevant aspect of Steven Davies [2001] EWCA(Crim) 2902, where the duration had been left indeterminate.
5. A judge should preferably state a hearing date, or expressly specify a suitable period. A clearly identified band of dates within six months of conviction may nevertheless satisfy section 3. The omission of express words identifying April or May 1999 was not fatal here.

• Court of Appeal (Criminal Division). The appeal against the confiscation order was dismissed: [2003] EWCA Crim 2.
• Crown Court at Southend. At a confiscation hearing, the court found that the appellant had benefited from drug trafficking by £251,828.50 and made a confiscation order for that sum. The judgment records inconsistent dates for this order, but no lower-court citation is stated.
• Crown Court at Harrow. The appellant was convicted and sentenced on 9 December 1998. The prosecution applied at that hearing for a postponement of confiscation proceedings.
• Full Court. The appellant’s appeal against conviction and renewed application for leave to appeal against sentence were dismissed in February and March 2000.