R v Mark Haden & Ors

The two-year permitted period under section 14 of the Proceeds of Crime Act 2002 is procedural. It regulates the time for concluding confiscation proceedings, but is neither a limitation period nor a condition precedent to jurisdiction. Proceedings may be commenced and postponed after sentence, provided the court has not become functus officio. The period may be extended for exceptional circumstances, even after expiry and without a timely application. Procedural default may affect fairness and, in rare cases, justify a stay for abuse of process. The court must actively case-manage confiscation proceedings. An order to proceed afresh means continuing from the point previously reached, not starting again.

Four unrelated prosecution appeals concerned refusals by Crown Court judges to extend or apply the permitted period for confiscation proceedings under the Proceeds of Crime Act 2002. The appeals arose from proceedings at Cambridge involving Mark Haden, Manchester involving Chadley Smith, Cardiff involving Jason Blair and Piret Rohelsaar, and Lincoln involving six respondents.

The central issues were whether expiry of the two-year period deprived the Crown Court of jurisdiction, whether an extension could be granted after expiry or without a prior application, and whether prosecutorial or court delay could amount to exceptional circumstances.

The Court granted leave in all cases, extended time where necessary and allowed the prosecution appeals.

1. Timing and jurisdiction. Confiscation proceedings may be commenced and postponed after sentence, but the relevant step must occur before the court becomes functus officio. In a criminal case that normally occurs 56 days after sentence, following the period for variation or rescission under section 385 of the Sentencing Act 2020.
2. The permitted period under section 14 of the Proceeds of Crime Act 2002 is a procedural device. It is not a limitation period and does not govern when the court’s duty under section 6 arises. Non-compliance does not remove jurisdiction while confiscation proceedings remain undetermined. An extension may be granted after expiry, whether or not an application was made before expiry, and the court may act of its own motion.
3. “Exceptional circumstances” requires a broad assessment. Pandemic disruption, court listing failures, complex or piecemeal proceedings and even exceptionally incompetent prosecutorial conduct may qualify. There is no statutory requirement that the prosecution demonstrate due expedition or diligence. The court’s duty is to manage confiscation proceedings so that they are determined promptly.
4. Procedural failure may nevertheless affect the fairness of the eventual order. Relevant safeguards include assessment of evidential prejudice, proportionality under section 6(5), caution in applying the criminal lifestyle assumptions, and, in very rare cases, a stay for abuse of process. The court rejected reliance on a “substantial compliance” approach and treated R v Soneji [2005] UKHL 49 as establishing the governing purposive approach.
5. The court held that R v Iqbal [2010] EWCA Crim 376 and R v Anthony Smith [2018] EWCA Crim 1351 could not be followed. Applying Young v Bristol Aeroplane Company [1944] KB 718, the Court of Appeal was bound not to follow earlier decisions inconsistent with binding authority.
6. Each case was remitted with directions to proceed afresh. This required continuation from the point reached, listing for directions and determination, and granting any necessary further extensions. “Proceed afresh” did not require the confiscation proceedings to begin again from the start.

1. Court of Appeal (Criminal Division) — In [2024] EWCA Crim 344, leave was granted and the prosecution appeals were allowed. The cases were remitted for directions and determination.
2. Crown Court at Cambridge — Refused an extension in Mark Haden’s confiscation proceedings.
3. Crown Court at Manchester — Refused to extend the permitted period in Chadley Smith’s case.
4. Crown Court at Cardiff — Declined to make confiscation orders against Jason Blair and Piret Rohelsaar.
5. Crown Court at Lincoln — Refused extensions in the cases of Jake Mann, Kerry Long, Christopher Cartwright, Stephen Tootell, Spencer Watkins and James Will.