Donohoe, R. v

Where confiscation proceedings have been validly postponed, a court’s breach of the prohibition on making a forfeiture order during that period does not deprive it of jurisdiction to continue the confiscation proceedings. Sections 14(11) and 14(12) of the Proceeds of Crime Act 2002 address the circumstances in which a confiscation order may be quashed on appeal. They do not indirectly impose a jurisdictional bar on the trial court.

The error may instead be addressed by varying the confiscation order, excluding an affected asset, or challenging the erroneous forfeiture order. A contrary construction would frustrate the statutory confiscation scheme.

The appellant pleaded guilty at Preston Crown Court to three offences of possessing Class A drugs with intent to supply. He received five years’ imprisonment and a forfeiture order under section 27 of the Misuse of Drugs Act 1971.

A Crown application for confiscation under section 6 of the Proceeds of Crime Act 2002 had been postponed. Despite the statutory prohibition on making a forfeiture order during that postponement, the Crown Court later made a confiscation order for £14,090, with a consecutive 45-day default term.

The appeal challenged the court’s jurisdiction to make that confiscation order after the erroneous forfeiture order.

1. Appeal dismissed. The Crown Court retained jurisdiction to make the confiscation order after a valid postponement of the proceedings under section 6 of the Proceeds of Crime Act 2002.
2. Section 15(2) prohibited the Recorder from making the earlier forfeiture order under section 27 of the Misuse of Drugs Act 1971. That order fell within section 13(3) of the 2002 Act. The breach was therefore an error, but the Act did not state that it prevented the court from subsequently proceeding with confiscation.
3. Sections 14(11) and 14(12) concern the quashing of a confiscation order for procedural error, including an earlier order within section 13(3). Properly construed, they permit appellate intervention where appropriate; they do not create an indirect prohibition on the trial court continuing validly postponed confiscation proceedings.
4. The statutory scheme gives confiscation precedence over other expropriating orders, so as to avoid double counting or double penalty. That purpose could be achieved by varying a confiscation order to exclude an asset already subject to an unrevoked forfeiture order, by permitting a late appeal against the erroneous forfeiture order, or by leaving the affected asset out of account at first instance.
5. It would frustrate the scheme to treat an erroneous fine or forfeiture of drug-related property as making the court powerless to determine substantive confiscation proceedings. This approach was consistent with Soneji [2005] UKHL 49.

• Court of Appeal (Criminal Division): dismissed the appeal and upheld the Crown Court’s jurisdiction to make the confiscation order: [2006] EWCA Crim 2200.
• Crown Court at Preston: after the appellant’s sentence and an erroneous forfeiture order under section 27 of the Misuse of Drugs Act 1971, Judge Cornwall ruled that the court retained jurisdiction and made a confiscation order.