Haisman & Ors, R v

A confiscation determination may be postponed under section 72A of the Criminal Justice Act 1988 only by a judicial decision made before sentence. No prescribed formula is required. The decision must nevertheless be manifest from the record and must identify the period of postponement.

A court may validly infer and record the decision from the pre-sentence exchanges where the judge accepts the proposed course, the parties understand that confiscation will follow sentence, and further information is plainly needed. The judge need not announce the decision before passing sentence if it was reached beforehand.

The appellants pleaded guilty to offences connected with the operation of brothels, including assisting unlawful entry and living on the earnings of prostitution. The prosecution served confiscation notices and sought to defer confiscation while asset inquiries continued.

At sentencing, the judge agreed to proceed with sentence and to deal with confiscation later. A later judge made confiscation orders. The appellants contended that the sentencing judge had not, before sentence, made and made manifest a lawful decision to postpone the confiscation determination under section 72A of the Criminal Justice Act 1988.

The central issue was whether the exchanges before sentence sufficiently demonstrated that judicial decision.

1. Appeals dismissed. The court upheld the confiscation orders. The sentencing judge had, before sentence, made a judicial decision to postpone the confiscation determination.

2. Section 72A requires a judicial exercise of discretion before sentence where further information is needed. The decision must be manifest, but no particular verbal formula is prescribed. It need not be announced before sentence, provided it was reached before sentence.

3. On the exchanges of 15 September, the judge accepted the Crown's proposal to sentence first and deal with confiscation later. Counsel's responses showed that they understood the consequence. The subsequent exchanges, fixing a date and timetable for the confiscation process, confirmed the earlier decision.

4. There was plainly a need for further information concerning assets. On these facts, treating the matter as merely an adjournment of an application rather than a postponement of the statutory determination was unreal. The judge’s decision was sufficiently clear and lawful.

• Court of Appeal (Criminal Division): Appeals from confiscation orders made in Northampton Crown Court were dismissed.
• Northampton Crown Court: Confiscation orders were made on 28 June and 3 December 2001 after the confiscation proceedings had been postponed following sentencing.