Date of Conviction
| DOI | http://doi.org/10.1177/002201839906300526 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
The
Journal
of
Criminal
Law
Date of Conviction
Rv
Shergi1l
and
others
[1999] 2 All ER 485
The appellants and a number of other persons set up a company for the
sole purpose of the fraudlent evasion of excise duty on alcohol. On
importing alcoholic drinks which purported to be destined for bonded
warehouses, the appellants diverted the goods to
the
home market or
exported them, without paying duty, with the result that the Revenue
was said to have lost
£6~m
in unpaid duty. The three appellants in this
case pleaded guilty to being concerned in
the
fraudulent evasion of
excise duty on alcohol. Those pleas were made in October 1996,
but
sentence was postponed until after the trial of others
who
had
been
concerned in
the
fraud. They were eventually sentenced to terms of
imprisonment in
June
1997,
when
the prosecution asked the judge to
make confiscation orders
under
s 71 of the CriminalJustice Act 1988. At
ahearing in October 1997, the appellants contended that it was by
then
too late to make any confiscation order, as it was
then
more
than
six
months after their 'conviction', which must be considered to have
been
in October 1996
when
their pleas of guilty had been accepted by the
court. The judge rejected that submission on the ground that: (1) the
their plea,
but
from the date
on
which the court dealt with
them
by
passing sentence,
and
(2) the judge also held (and certified, at a later
date)
that
there were 'exceptional circumstances' within
the
meaning of
subs (3) which permitted him to decide that the statutory time limit did
not
apply. Holding, therefore, that he
had
jurisdiction (and, indeed, a
duty) to consider the prosecution's request, he made confiscation orders
against the three appellants in the sums, respectively, of £35,000,
£31,000 and £46,000, with additional periods of 18 months' imprison-
ment
in default of payment.
Section 71 of theCriminal Justice Act 1988 provides that where an
offender is convicted of an offence,
the
court (whether the prosecution
has given notice or not) shall, before sentence, determine
whether
the
offender has benefitted from any relevant criminal conduct and, if so,
make
an
order for the offender to pay the
amount
which the court
considers appropriate. Section 72A provides for the possibility of a
postponement of that order, by enacting that the court may direct such
postponement for the purpose of obtaining further information,
but
by
subs (3) it is provided that such postponement shall be for not more
than
six months 'beginning with
the
date of the conviction', unless it is
satisfied that there are 'exceptional circumstances'. Section 72AA enacts
that the section applies whenever the offender is convicted before the
Crown Court or a magistrates' court of a qualifying offence.
Appeal. was taken to the Court of Appeal on the grounds that the
judge was in error in ruling that the statutory time limit ran from
the
date on which the offenders were sentenced,
not
from the date on
which they were treated as guilty, on making their plea. He was equally
in error in certifying (more
than
six months after that plea) that there
442
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