Crown Prosecution Service Swansea v Gilleeney & Anor

Where a Crown Court directs the prosecution to provide statements of information within a specified period, it may thereby begin confiscation proceedings before sentence under section 14(1)(a) of the Proceeds of Crime Act 2002, rather than postpone them under section 14(1)(b). The direction must be construed objectively from what the judge did and said. It need not require completion of confiscation proceedings before sentence or include a full timetable.

Where proceedings were begun under section 14(1)(a), the time for a statement of information may be varied at any time under section 16(7). A ruling that the court lacks jurisdiction to make a confiscation order is a decision not to make such an order, and is appealable by the prosecutor under section 31(2).

The respondents pleaded guilty in the Crown Court at Cardiff to drug-related and money-laundering offences. A judge directed the prosecution to serve statements of information for confiscation purposes within six months, but did not state whether the direction proceeded under section 14(1)(a) or section 14(1)(b) of the Proceeds of Crime Act 2002.

After sentence, the prosecution was allowed a further two months to serve the statements. The judge later ruled that the original direction had postponed confiscation proceedings and, because no extension had been sought before the six months expired, the court had no jurisdiction to make confiscation orders.

The prosecution appealed. The issues were whether the original direction was a decision to proceed before sentence or a postponement, and whether the jurisdiction ruling was appealable under section 31(2).

1. Appeal allowed. The direction made on 7 November 2006 was a decision to proceed with confiscation under section 6 before sentence under section 14(1)(a) of the Proceeds of Crime Act 2002. It was not a postponement of those proceedings under section 14(1)(b).

2. Section 14(1)(a) and (b) are disjunctive. Section 14(1)(a) contemplates the commencement of section 6 proceedings before sentence. Those proceedings commenced when the judge required statements of information under section 16(1). Neither completion of the proceedings before sentence nor a complete future timetable was required. The judge did not use the word “postpone”, and his expectation that sentence would occur first did not show an intention to make a postponement order.

3. The statutory sequence between sentence and confiscation did not decide the issue. R v Soneji [2005] UKHL 49 reinforced the conclusion that sentencing before completion of confiscation proceedings was permissible. Since the proceedings were begun under section 14(1)(a), the later two-month extension could take effect under section 16(7), which permits variation of the time for statements of information at any time.

4. The court emphasised that judges should state plainly which limb of section 14(1) they are using. Statements of information should be prepared promptly in either event. No prejudice from delay had been suggested.

5. The ruling that the judge lacked jurisdiction to make a confiscation order was a decision not to make one for section 31(2). Applying R v Hockey [2008] 1 Cr App R(S) 50, the different reason for the ruling did not prevent it from falling within the prosecution’s statutory right of appeal.

• Court of Appeal (Criminal Division): Allowed the prosecution’s appeal and held that confiscation proceedings had been commenced under section 14(1)(a) of the Proceeds of Crime Act 2002.
• Crown Court at Cardiff: The judge ruled on 2 June 2008 that the court no longer had jurisdiction to consider confiscation orders because the six-month period had expired without an extension.