Crown Prosecution Service v Neish

A judicial decision to adjourn and re-list confiscation proceedings can amount to a postponement for a specified period under section 14 of the Proceeds of Crime Act 2002. This remains so where a listing officer, acting on the judge’s instructions, fixes and notifies the fresh date without obtaining further express approval.

Technical errors in the postponement process which cause no prejudice do not ordinarily deprive the Crown Court of jurisdiction to continue confiscation proceedings. The proceedings may be prevented only where their continuation would contravene an unequivocal statutory prohibition.

Crown Prosecution Service v Neish concerned confiscation proceedings following the respondent’s guilty pleas to drug-supply offences. The sentencing judge had postponed confiscation and listed a substantive hearing for 11 December 2009.

Before that date, the judge became unavailable and instructed the listing officer to remove the case from the list and re-list it. The officer fixed 4 January 2010 and notified the parties before the existing postponement ended. At that hearing, the Crown Court held that no valid postponement had been made beyond 11 December and that it lacked jurisdiction.

The CPS appealed under the Proceeds of Crime Act 2002. The central issue was whether the adjournment and re-listing amounted to a valid statutory postponement and, if not, whether any procedural defect removed the court’s jurisdiction.

1. Appeal allowed. The Crown Court had jurisdiction to continue the confiscation proceedings. The case was remitted for determination of the confiscation issue on its merits.

2. The judge’s instruction to remove the hearing from the list and re-list it before him was a judicial act. Listing is a judicial function, and the listing officer made the necessary arrangements on the judiciary’s behalf. Once the officer fixed and notified a fresh date, the process as a whole extended the existing postponement to that specified date.

3. It was immaterial that the judge did not himself state the precise replacement date or give further express approval after instructing the listing officer. The re-listing followed from, and formed part of, the court’s order to postpone proceedings of its own motion under section 14 of the Proceeds of Crime Act 2002. The fresh date was fixed within the statutory two-year permitted period.

4. The conclusion accorded with R v Knights [2006] 1 AC 368 and R v Soneji [2006] 1 AC 340. Unless continuation would breach an unequivocal statutory prohibition, a technical and non-prejudicial error in the postponement procedure does not disable the court from completing confiscation proceedings.

5. Section 14(11) expressly confirms that a confiscation order is not to be quashed solely for a procedural defect or omission concerning postponement. Section 14(12) preserves specified statutory exceptions, including where a fine has already been imposed. No such prohibition arose here. The judge’s error was in accepting that the re-listing order had caused the proceedings to lapse.

• Court of Appeal (Criminal Division)—allowed the CPS appeal in [2010] EWCA Crim 1011 and remitted the confiscation issue to the Crown Court.
• Crown Court at Newcastle-upon-Tyne—on 4 January 2010, held that no valid postponement extended beyond 11 December 2009 and that it lacked jurisdiction to continue confiscation proceedings.