Johal, R. v

Under Proceeds of Crime Act 2002, the question whether circumstances are exceptional for a postponement beyond the permitted period is approached broadly and in the light of the case as a whole. Procedural failures in the postponement process do not automatically invalidate a confiscation order. The court must ask whether Parliament intended invalidity, having regard to the statutory purpose and any prejudice.

A failure to specify a postponement period did not invalidate an otherwise proper order where it caused no prejudice. Any substantial unfairness caused by delay may instead found an abuse-of-process submission. Courts and listing officers must nevertheless comply carefully with the statutory timetable and record any exceptional circumstances.

The appellant pleaded guilty at Wolverhampton Crown Court to possessing a Class A controlled drug with intent and received six years’ imprisonment. Confiscation proceedings were repeatedly delayed. Some delay followed late defence material, further valuation evidence and heavy snow which prevented the appellant, then in custody, from attending a hearing. The final hearing was then removed from the list because of lack of court time shortly before the two-year period expired.

A Recorder later held that exceptional circumstances justified proceeding outside that period. A Crown Court judge subsequently made a confiscation order for £18,778, with six months’ imprisonment in default. The appellant appealed against that order, contending that the court lacked jurisdiction because the postponement was not properly extended and no specified period had been fixed.

1. Appeal dismissed. Section 14 of the Proceeds of Crime Act 2002 is a procedural code intended to make confiscation proceedings effective. It requires observance of the statutory timetable, but Parliament did not intend technical timing failures to defeat otherwise meritorious confiscation.

2. The expression exceptional circumstances in section 14(4) is not to be construed narrowly. The court may assess the whole procedural history. The Recorder was entitled to take account of delays attributable to the defence, the need for further material, the exceptional weather preventing attendance, and the subsequent listing difficulty. Had exceptional circumstances been considered when the matter was removed from the list, the same conclusion would properly have been reached.

3. The court applied the approach in R v Soneji and another [2005] UKHL 49. The consequence of non-compliance with a statutory procedural requirement depends on whether Parliament intended invalidity. The omission to specify a period of postponement was technical and did not invalidate the confiscation order, since it caused the appellant no prejudice.

4. The court did not finally decide whether section 14(11) itself saved an omission to specify a period, or whether that saving applies where the court postpones proceedings of its own motion. Even if it did not, the Soneji approach led to the same result. Material prejudice may be addressed through abuse of process.

5. As a practical rider, listing officers must observe the two-year limit, consider exceptional circumstances before permitting a postponement beyond it, specify the period of any postponement, and keep an appropriate record.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against the confiscation order in [2013] EWCA Crim 647.
• Crown Court: on 16 May 2012, His Honour Judge Hughes made a confiscation order of £18,778, with six months’ imprisonment in default.
• Crown Court: on 30 September 2011, Mr Recorder Desmond held that exceptional circumstances justified the confiscation proceedings continuing outside the two-year permitted period.