Guraj, R v

Procedural defects in confiscation proceedings do not ordinarily invalidate a later confiscation order. The statutory scheme must be construed purposively, but an express statutory prohibition must be given effect.

Under Proceeds of Crime Act 2002, an extension of a postponement period requires an application before that period ends. The saving in section 14(11) cannot cure that failure where a prohibited forfeiture order has engaged section 14(12). In those circumstances, the court lacks power to make a confiscation order even if the two-year permitted period has not expired.

The appellant pleaded guilty at Southwark Crown Court to drug-supply and money-laundering offences. At sentence, the court made forfeiture orders under section 27 of the Misuse of Drugs Act 1971 and postponed confiscation proceedings under section 14 of the Proceeds of Crime Act 2002.

The prosecution then failed to comply with the timetable and did not seek an extension before the postponement period ended. More than a year later, the Crown Court ruled that the proceedings could continue and made an agreed confiscation order. The appellant appealed, contending that the procedural failures, combined with the forfeiture order, deprived the court of jurisdiction.

1. Appeal allowed. The confiscation order was quashed.

2. The court accepted that Parliament intended confiscation proceedings to take priority over forfeiture and to proceed efficiently. It also accepted the purposive approach in R v Knights [2005] UKHL 50 and R v Soneji [2005] UKHL 49: procedural error will not normally invalidate later proceedings unless Parliament intended that consequence.

3. That approach was subject to the express terms of the Proceeds of Crime Act 2002. Section 14(8) permitted an extension of a postponement period only where the application was made before the existing period ended. The prosecution had not applied in time. Its failure was therefore a serious procedural error which could not be remedied by a later application.

4. Section 14(11) would ordinarily preserve a confiscation order despite a defect in postponement procedure. It was unavailable here because the court had made a forfeiture order while confiscation proceedings were postponed, contrary to section 15(2). That engaged section 14(12), which disapplied the saving provision.

5. Donohoe [2006] EWCA Crim 2200 did not assist the prosecution. A breach of section 15(2) does not itself render a postponement ineffective, but in that case the prosecution did not need section 14(11) to preserve the proceedings. Here it did. The court followed the principle in R v Neish [2010] EWCA Crim 1011 that an express statutory prohibition cannot be ignored.

6. The two-year permitted period had not expired, unlike in R v Iqbal [2010] EWCA Crim 376. Nevertheless, the expired postponement, the untimely extension application, and the disapplication of section 14(11) meant that the Crown Court had no power to make the order. The substantial-observance approach mentioned in Soneji led to the same conclusion, but was not the basis of the decision.

• Court of Appeal (Criminal Division) Allowed the appeal and quashed the confiscation order: [2015] EWCA Crim 305.
• Southwark Crown Court Held that confiscation proceedings could continue despite delay and procedural non-compliance, then made an agreed confiscation order.