Regina v. Knights and another (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

A court postponing a determination in confiscation proceedings under section 72A of the Criminal Justice Act 1988 must specify a period. It need not fix the date of the substantive hearing or final order. Directions and a date for the next listing may suffice.

The court must address exceptional circumstances at the first postponement if its timetable makes it likely that the six-month limit will be exceeded. A good-faith procedural failure in the purported exercise of the postponement power does not deprive the court of jurisdiction to complete confiscation proceedings. Nor does an inept prosecutor’s notice invalidate the proceedings where its intended statutory purpose is clear and the court independently considers confiscation appropriate.

The appellants were convicted of knowingly participating in the fraudulent diversion of imported cigarettes onto the domestic market. The Crown Court sentenced them and postponed confiscation proceedings under section 72A of the Criminal Justice Act 1988. Confiscation orders of £114,930 and £139,260 were eventually made.

The Court of Appeal dismissed challenges concerning the initiation and postponement of those proceedings: [2002] EWCA Crim 2954, reported under the title R v Sekhon, [2003] 1 WLR 1655. It certified whether failure to specify a period of postponement under section 72A deprived the court of jurisdiction to make a confiscation order.

The appellants also challenged the prosecutor’s notice because it referred to a repealed provision and ineptly combined the language of the applicable statutory alternatives.

1. Appeal dismissed unanimously. Lord Brown of Eaton-under-Heywood delivered the leading speech. Lord Steyn, Lord Rodger of Earlsferry, Lord Cullen of Whitekirk and Lord Carswell agreed with his reasons and conclusion. The certified question was answered in the negative.

2. Per Lord Brown, section 72A(1) of the Criminal Justice Act 1988 requires a judge to specify the particular period of a postponement. The judge cannot adjourn confiscation proceedings generally. The provision does not, however, require the judge to fix the date on which the substantive hearing will begin or end. It is sufficient to direct service of the parties’ statements and specify a date for the next listing, whether for disposal, further directions or the fixing of a final hearing.

3. Per Lord Brown, section 72A(2) expressly permits successive postponements. Section 72A(3) manifests Parliament’s concern that the final order should pass beyond six months from conviction only in exceptional circumstances. Exceptional circumstances need not be established merely because the first postponement is to a directions hearing. The court must consider them at the first postponement where the timetable then set makes it likely that the six-month limit will ultimately be exceeded.

4. The judge had specified a period by postponing the proceedings to 4 January 2001. Since the contemplated final hearing at the end of January would exceed six months in relation to one appellant, he should have considered exceptional circumstances on 16 October 2000. He should also have considered whether the timetable could be accelerated around his known absence.

5. Applying R v Soneji and Bullen [2005] UKHL 49, Lord Brown held that even an actual failure to specify a return date would not disable the court from completing confiscation proceedings. That conclusion applied where the judge acted in good faith and purported to exercise the section 72A power. Parliament could not have intended the procedural error to prevent performance of the court’s statutory duty.

6. The additional challenge to the prosecutor’s notice was rejected. Although the notice referred to repealed section 72 and ineptly combined statutory language, its intention to invoke section 71(1)(a) was obvious. In any event, section 71(1)(b) required the court to proceed independently where it considered confiscation appropriate. The drafting defects therefore did not invalidate the proceedings.

1. House of Lords: The appeal was dismissed unanimously. The certified question was answered in the negative: [2005] UKHL 50.
2. Court of Appeal (Criminal Division): The court upheld the confiscation orders and held that the trial judge was entitled to postpone the proceedings as he did: [2002] EWCA Crim 2954, reported under the title R v Sekhon, [2003] 1 WLR 1655.
3. Kingston-upon-Thames Crown Court: The appellants were convicted and sentenced. Following postponed proceedings, confiscation orders of £114,930 and £139,260 were made on 30 July 2001.