Regina v Soneji and another

The House considered the legal consequence of non-compliance with the six-month time-limit for postponement under section 72A(3) of the Criminal Justice Act 1988 when making confiscation orders under section 71. The court rejected a rigid mandatory/directory dichotomy and applied a purposive approach: the key question is whether Parliament intended total invalidity to follow a breach. The House held that a failure to satisfy the requirements of section 72A(3) does not automatically deprive the court of power to make a confiscation order or render such an order void where the court acted in good faith, no prejudice to the defendant is shown and there is no abuse of process. The court also held that there is no residual common law power to postpone confiscation proceedings co-extensive with section 72A and that the expression "exceptional circumstances" must be given a sensible, contextual construction.

The appellants were convicted in the Crown Court of conspiracy to convert and remove the proceeds of criminal conduct. The prosecutor served notice under section 71(1) of the Criminal Justice Act 1988 that confiscation proceedings were appropriate. The sentencing hearings took place before determination of confiscation matters and the court made postponements which, in the view of the Court of Appeal, extended beyond the six month limit in section 72A(3) without any finding of "exceptional circumstances." The Court of Appeal quashed the later confiscation orders on jurisdictional grounds and certified questions for the House.

The House heard argument on (i) whether non-compliance with section 72A(3) automatically invalidated subsequent confiscation orders or deprived the court of jurisdiction, (ii) whether a common law postponement power co-existed with section 72A, and (iii) the meaning of "exceptional circumstances."

The House reviewed the modern approach to statutory requirements, rejecting mechanical reliance on the mandatory/directory distinction and focusing on the consequences of non-compliance and the intention to be imputed to Parliament. Applying that approach, the House concluded that Parliament would not have intended total invalida tion of confiscation orders made in good faith after sentence merely because the six-month limit was exceeded. The court held there was no separate common law postponement power alongside section 72A and that the phrase "exceptional circumstances" should be construed contextually rather than narrowly. The Crown's appeal was allowed and the confiscation orders reinstated.

Relief sought: the Crown sought to restore confiscation orders quashed by the Court of Appeal.

Issues framed: (1) legal effect of non-compliance with section 72A(3) of the Criminal Justice Act 1988; (2) existence of a residual common law power to postpone confiscation; (3) construction of "exceptional circumstances."

Reasoning in brief: The House applied a purposive, consequence-focused statutory interpretation (relying on authorities such as London & Clydeside and Wang) and held that absent bad faith, prejudice or abuse of process Parliament would not intend automatic nullity; section 72A is the exclusive statutory mechanism for postponement and "exceptional circumstances" is to be given a practical meaning.

Appeal allowed. The House held that non-compliance with section 72A(3) of the Criminal Justice Act 1988 does not automatically invalidate subsequent confiscation orders or deprive the court of its duty to make such orders where the court acted in good faith, no prejudice to the defendant is shown and no abuse of process is established. The House also held that there is no separate common law power to postpone confiscation proceedings and that "exceptional circumstances" should be given a contextual, not unduly strict, construction.

Appeal to the House of Lords from the Court of Appeal (Criminal Division) which had quashed confiscation orders: R v Soneji and Bullen [2004] 1 Cr App R (S) 219; earlier proceedings in the Crown Court at Southwark (convictions March–April 2000; sentencing August 2000).