Attorney General, Re References Nos 83 & 84 of 2005

The six-month limit for postponing confiscation determinations must be observed wherever reasonably possible, but it does not require an unduly strict construction of exceptional circumstances. The expression takes its meaning from the statutory setting, including the court’s duty to make a confiscation order and the absence of prejudice or abuse of process.

In deciding whether exceptional circumstances justify a further postponement, the court should consider the explanation for delay, the practical length of the adjournment, case management and whether the process has been abused. Technical procedural failures do not automatically remove the court’s ability to determine confiscation. A sentencing court must not evade the time limit by formally opening a hearing which cannot fairly proceed and then immediately adjourning it.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the sentences imposed on Raymond Jerome Legall and Tracy Macaulay.

Both offenders had pleaded guilty in the Crown Court at Cardiff to a conspiracy to supply Class A drugs. They received terms of ten years’ and four years’ imprisonment respectively. Confiscation proceedings under the Drug Trafficking Act 1994 were not determined before sentence. The prosecutor’s statements were served shortly before the scheduled hearing.

On 22 March 2004 the sentencing judge refused to postpone the determinations beyond six months from conviction. He found no exceptional circumstances and declined to make confiscation orders. The central issue was whether exceptional circumstances justified a short further postponement.

1. Leave was granted. The court held that the failure to make confiscation orders against both offenders rendered their sentences unduly lenient. A further hearing was to determine the orders to be made.

2. The confiscation and postponement regimes in the Drug Trafficking Act 1984 and the Criminal Justice Act 1988 contained no relevant distinction. The guidance in R v Sekhon [2002] EWCA Crim 2954 and R v Soneji and another [2005] UKHL 49 therefore assisted in construing section 3(3) of the Drug Trafficking Act 1994.

3. The judge had erred in treating R v Pisciotto [2002] EWCA Crim 1592 as governing. That decision was no longer binding after R v Sekhon and Regina v Simpson [2003] EWCA Crim 1499. The proper question was the effect of statutory non-compliance, not whether every procedural defect automatically defeated confiscation jurisdiction.

4. The six-month requirement remained important and had to be met wherever reasonably possible. However, exceptional circumstances was not to be construed narrowly. The court had to give proper weight to its statutory duty to make a confiscation order. Procedural defects of a technical character which caused no injustice did not, without more, remove that duty or the court’s ability to fulfil it. Abuse of process remained a possible basis for refusing an order.

5. The judge was right to reject the prosecution’s proposed device of commencing the hearing and immediately adjourning it. The offenders required further information before any fair determination could be made. But the relevant circumstances were exceptional: the investigation had been delayed by difficulties concerning a property, no timetable had been set for service of statements, the cases were closely linked, no more than a month’s adjournment was needed, and there had been no abuse of process.

• Court of Appeal (Criminal Division): Granted the Attorney General leave under section 36 of the Criminal Justice Act 1988, held the sentences unduly lenient because confiscation orders had not been made, and directed a further hearing.
• Crown Court at Cardiff: Sentenced Legall to ten years’ imprisonment and Macaulay to four years’ imprisonment. On 22 March 2004, the judge refused a further postponement of confiscation proceedings and made no confiscation orders.