Tahir v R.

A procedural defect in confiscation proceedings does not automatically invalidate a confiscation order. The question is whether Parliament intended invalidity. Where the court acted in good faith in the purported exercise of its statutory power, the parties understood that confiscation was postponed, and no prejudice resulted, the order remains valid.

A decision under section 72A of the Criminal Justice Act 1988 need not take a prescribed form. It is sufficient that, before sentence, the judge makes manifest an intention to sentence first and determine confiscation later. Property obtained through an agent or nominee is obtained by the defendant for confiscation purposes.

The appellant was convicted at Maidstone Crown Court of conspiracy fraudulently to evade excise duty on alcohol imported from France. He received a custodial sentence, a confiscation order of £11,864,322, and costs orders.

He appealed against the confiscation order and the costs orders. The principal issues were whether written notice had validly initiated confiscation proceedings, whether the judge had lawfully postponed those proceedings before sentencing, and whether assets and cash attributed to the appellant had been properly included. A further issue concerned two trial-costs orders made before and after the confiscation proceedings.

1. Appeal allowed in part. The appeal against the confiscation order was dismissed. The court allowed 28 days from its order for payment. It quashed both £350,000 orders for the prosecution’s trial costs, but upheld the £50,000 order for the costs of the confiscation proceedings.

2. The prosecution’s letter of 17 February 2000 was served on the court and was a sufficient notice under section 71(1)(a) of the Criminal Justice Act 1988. In any event, applying R v Soneji [2005] UKHL 49 and R v Knights [2005] UKHL 50, a defect in notice would not invalidate the order unless Parliament intended that consequence. No such intention arose on these facts.

3. The judge had decided before sentencing to postpone confiscation under section 72A. A postponement decision need not use a particular form. It was enough that the judge made clear, and counsel understood, that sentencing would occur first and confiscation later. The court followed the approach in R v Haisman [2004] 1 Cr App R (S) 383 and R v Sekhon [2003] 1 WLR 1655 on that point. Alternatively, any strict procedural deficiency would not invalidate the order because the judge acted in good faith and no prejudice was shown.

4. The case’s scale and complexity were capable of amounting to exceptional circumstances under section 72A(3). The expression was not to be construed narrowly. The judge was entitled to reject speculative evidence concerning Pakistani assets. The appellant bore the relevant burden of proof.

5. Under section 71(4), property obtained through a nominee is obtained by the defendant. The judge was therefore entitled to include the £130,000 paid to Akhtar, whom the appellant accepted was his nominee.

6. The earlier and replacement trial-costs orders could not stand. Following the approach in Abbas [2002] EWCA Crim 227, the court quashed both orders to secure parity with a co-defendant in the same confiscation proceedings.

• Court of Appeal (Criminal Division) — In [2006] EWCA Crim 792, dismissed the challenge to the confiscation order, quashed both trial-costs orders, upheld the confiscation-proceedings costs order, and allowed 28 days to pay the confiscation sum.

• Maidstone Crown Court — Convicted the appellant of conspiracy to evade excise duty, sentenced him to seven years’ imprisonment, later made a confiscation order of £11,864,322, and made the disputed costs orders.