Young v R

For confiscation proceedings under Criminal Justice Act 1988, the statutory six-month period requires a completed determination, not merely the substantive start of a hearing. An adjournment taking the determination beyond that period requires both a judicial decision to postpone or adjourn and a considered finding of exceptional circumstances.

Listing difficulties will rarely suffice. They may do so where a proper inquiry shows that a short overrun is the only reasonably just solution and causes no injustice. Sentence disparity warrants intervention only where an informed member of the public would conclude that the administration of justice had gone wrong.

The appellant was convicted at Bournemouth Crown Court of conspiracy to defraud, fraudulent evasion of VAT, and furnishing a false VAT return. He received concurrent sentences of seven years, four years and eighteen months’ imprisonment. A confiscation order for £111,105 was made shortly after the expiry of six months from conviction.

He renewed his application to challenge the seven-year sentence by comparison with the much shorter sentence imposed on a co-defendant. He also appealed the other concurrent sentences and challenged the confiscation order. The central confiscation issue was whether the hearing and determination outside the six-month period were authorised by exceptional circumstances under section 72A of the Criminal Justice Act 1988.

1. The court refused the renewed application to challenge the seven-year sentence for conspiracy. Applying R v Fawcett 5 Cr.App.R.(S) 158, the proper question was whether right-thinking members of the public, fully informed of the facts, would think that the administration of justice had gone wrong. The co-defendant’s guilty plea, lesser antecedents, lesser role and lack of benefit provided proper grounds for distinction. Any error was more likely undue leniency towards the co-defendant than excess in the appellant’s sentence.

2. The court allowed the appeal against the four-year sentence for fraudulent VAT evasion, substituting three years because four years was manifestly excessive. It dismissed the appeal against the eighteen-month sentence for furnishing a false VAT return. All sentences remained concurrent, so the overall term remained seven years.

3. The court dismissed the appeal against the confiscation order. Under section 72A of the Criminal Justice Act 1988, “determining” and “determination” mean the conclusion of the confiscation process. A substantive start to a hearing within six months does not itself satisfy the statutory time limit if the determination is made later.

4. The same exceptional-circumstances requirement governs an adjournment of a part-heard confiscation hearing that takes the determination beyond six months. There must be a judicial decision or order to adjourn or postpone and a considered finding of exceptional circumstances. The court will ordinarily not interfere with that composite discretionary decision unless there is legal error or it is plainly wrong, particularly where no injustice has arisen.

5. Listing difficulties do not ordinarily constitute exceptional circumstances. However, a rare combination of genuine and fully investigated difficulties affecting the court and both parties may justify a modest overrun where no reasonably just alternative exists. On the facts, the judge was entitled to find exceptional circumstances following the co-defendant’s plea and the resulting severe, mutual listing difficulties. The confiscation order therefore stood.

• Court of Appeal (Criminal Division): The appeal was allowed only to reduce the concurrent sentence for fraudulent VAT evasion from four years to three years. The challenge to the seven-year conspiracy sentence, the sentence for furnishing a false VAT return, and the confiscation order was dismissed.
• Bournemouth Crown Court: The appellant was convicted on 9 May 2002 and sentenced the following day to concurrent terms of seven years, four years and eighteen months. On 15 November 2002, the court made a confiscation order for £111,105.