R v Guraj
| Jurisdiction | England & Wales |
| Judge | Lord Hughes,Lord Neuberger,Lord Mance,Lord Reed,Sir Declan Morgan |
| Judgment Date | 17 December 2016 |
| Neutral Citation | [2016] UKSC 65 |
| Date | 17 December 2016 |
| Court | Supreme Court |
[2016] UKSC 65
Lord Neuberger, President
Lord Mance
Lord Reed
Lord Hughes
Sir Declan Morgan
Appellant
Jonathan Hall QC Will Hays (Instructed by CPS Appeals and Review Unit)
Respondent
Simon Farrell QC Kitty St Aubyn (Instructed by Faradays Solicitors)
(with whom Lord Neuberger, Lord Mance, Lord ReedandSir Declan Morganagree)
In R v Soneji [2005] UKHL 49; [2006] AC 340, para 3 Lord Steyn feared that it might be "innocent to predict" that the then new Proceeds of Crime Act 2002 (" POCA") had solved the problems involved in the criminal process of confiscation. He was considering in particular the question whether and when a breach of statutory procedural terms for the process of post-conviction confiscation deprives the Court of jurisdiction to make such an order. The present appeal raises the same question again. More particularly, the present question is whether a procedural breach deprives the court of jurisdiction if it is combined with a breach of the rules contained in section 15(2) for the order in which sentence and confiscation order are to be approached. The principal statutory provisions in question are sections 15(2), and 14(8), (11) and (12) of POCA.
The respondent, Lodvik Guraj, pleaded guilty on 11 June 2012 to offences involving the supply of heroin and money laundering. He had been caught in possession at his home of about 1.5Kg of heroin, some amphetamine and some cocaine. Hidden in the house and garage was equipment for processing the drugs, such as an hydraulic press and cutting agents, and also various substantial quantities of cash. He appeared to have been supplying drugs for some time. The offences were lifestyle offences for the purposes of POCA.
On 16 July 2012 the respondent was sentenced to terms of imprisonment totalling five years and four months. At the same time, the judge made, apparently without any question arising as to the propriety of doing so, orders (a) forfeiting the drugs under section 27 of the Misuse of Drugs Act 1971, and (b) depriving the respondent of a car, a laptop, five mobile telephones, some scales, the press and a money-counting machine, pursuant to section 143 of the Powers of Criminal Courts (Sentencing) Act 2000, on the basis that they had been used for the purposes of crime. Also at the same time, the judge gave directions for the progression of the confiscation aspect of the case. She set three dates in August, October and November 2012 for the respondent to provide some information he was required to give, and then for the service by first the Crown and then the respondent of the statements of case required by sections 16 and 17 of POCA. The last of the dates thus fixed was 9 November 2012. The judge's order then directed that a half day hearing should follow, "two weeks thereafter, with a date to be fixed."
Thereafter, the timetable set by the judge for confiscation slipped badly. The respondent did give the information required, albeit in September rather than in August as directed. The CPS then lost sight of the case for a whole year and did not serve its section 16 statement. In October 2013, it woke up to what had happened, and contacted the respondent to admit the fact, and to invite agreement to a new timetable. The case was listed for 7 January 2014, but although a Crown statement was prepared in advance of this, it was not served until 15 January, and the CPS failed to get the officer in the case to court so that the hearing was abortive, save that a direction for a further Crown statement was given. The case was next listed on 31 March 2014, but this hearing was also abortive owing to the failure of the CPS to register the date and get the advocate instructed to be there to conduct it. Wasted costs orders were made against the Crown in relation to both these abortive hearings. In due course there was a properly attended hearing on 2 May 2014, but by now the respondent's counsel had formulated the submission that the events which had occurred had the consequence that there was no longer any jurisdiction to proceed. The judge directed a special hearing to deal with that contention and in due course, on 7 May 2014, that took place. Whilst lamenting the repeated errors of the prosecution, the judge rejected the defence argument and on 9 June 2014 made a confiscation order in a sum which had been by then agreed, subject to the jurisdiction point, at £57,458. The Court of Appeal took the opposite view to the judge on the jurisdiction point and quashed the confiscation order.
POCA contains provisions which relate both to the forfeiture and deprivation orders made at the time of sentencing, and to the matter of timetabling.
Section 13 POCA provides (as amended), so far as material, as follows:
"13. Effect of order on court's other powers
(1) If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned.
(2) The court must take account of the confiscation order before —
(a) it imposes a fine on the defendant, or
(b) it makes an order falling within subsection (3).
(3) These orders fall within this subsection —
(a) an order involving payment by the defendant, other than … [defined exceptions]
(b) an order under section 27 of the Misuse of Drugs Act 1971 (c 38) (forfeiture orders);
(c) an order under section 143 of the Sentencing Act (deprivation orders);
(d) an order under section 23 or 23A of the Terrorism Act 2000 (c 11) (forfeiture orders)
(3A) …
(4) Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant."
These provisions are directed at the inter-relation between confiscation and sentence. They say, in effect, that confiscation has no effect on sentence except for some (but not all) aspects of the latter which are either financial or property- depriving. By exceptions defined in section 13(3)(a) and 13(3A), various orders in the nature of compensation or restitution are excluded, as are mandatory orders for the payment of the surcharge; these are plainly given priority. Those apart, the reasoning plainly is that financial/property orders might be affected by removal under a confiscation order of some of the defendant's assets, and so the confiscation order is to be taken into account before making them. There is obvious potential for a confiscation order to affect the ability of a defendant to meet a fine, and there might be some scope for it to affect the question whether it is right to make a deprivation order, since the financial impact of such an order on the defendant is, by section 143(5)(b) of the Powers of Criminal Courts (Sentencing) Act 2000, a consideration to which a court is required to have regard when deciding whether to make it. The same might sometimes be true of a forfeiture order under section 27 of the Misuse of Drugs Act 1971, at least when it relates to money, or to property used in the offending, rather than to any drugs recovered.
These provisions have existed, essentially in similar form, ever since confiscation was introduced to English criminal law by the Drug Trafficking Offences Act 1986 and, for non-drugs crime, by the Criminal Justice Act 1988. In order to understand them it is necessary to remember that, as initially conceived, the scheme was for confiscation to be dealt with before sentence. That is why the provisions are couched in terms of taking account of the confiscation order when determining the sentence. However, it was rapidly discovered that it was wholly unrealistic to expect the complex questions which frequently arise in relation to confiscation, not infrequently involving third party interests, to be ready to be determined immediately on conviction, especially after a contested trial. The result was that the sentencing of offenders was held up, often for a substantial time, when it is a cardinal principle of the criminal law that sentence ought to follow conviction either immediately or very shortly after, not least in the interests of defendants. So, with effect from the Criminal Justice Act 1993, courts were given express power to adopt what is much the more natural sequence, and to sentence first. That was done, however, by creating a power in the court to postpone the confiscation hearing until after sentence, initially as an exception to a general practice of dealing with confiscation first. Although the general practice has rapidly, and inevitably, become to sentence promptly and to deal with confiscation subsequently, the terms of some of the statutory provisions have not, in this respect, altered. The power to postpone has been continued into POCA, and indeed extended. It is no longer predicated, as initially it was, on a decision that the court needs additional information before confiscation can be dealt with, and the initial provision that confiscation must ordinarily be completed within six months has been replaced by a period of two years. But section 13, because it has substantially been modelled on the previous statutes, is still couched in terms which assume that confiscation will ordinarily come first.
The power to postpone confiscation until after sentence is now in section 14 (as amended) which provides (omitting immaterial parts):
"14. Postponement
(1) The court may —
(a) proceed under section 6 before it sentences the defendant for the offence (or any of the offences) concerned, or
(b) postpone proceedings under section 6 for a specified period.
(2) A period of postponement may be extended.
(3) A period of postponement (including one as extended) must not end after the permitted period ends.
(4) But subsection (3) does...
To continue reading
Request your trial
-
R v McCool
...has remained the same throughout. Confiscation orders are enforced by the magistrates as if they were Crown Court fines: see R v Guraj [2016] UKSC 65. Additional mechanisms have however been added from time to time, such as widening the range of officials who may exercise powers of seizure......
-
Director of Public Prosecutions v Owain McFarlane
...would be contrary to the approach approved in R v Soneji [2005] UKHL 49, [2006] 1 AC 340; R v Knights [2005] UKHL 50, [2006] 1 AC 368; and R v Guraj [2016] UKSC 65, [2017] 1 WLR 22. These cases were concerned with statutory time limits in confiscation proceedings under the Proceeds of Crim......
-
R v Caron Westbrook
...cannot have been Parliament's intention that a nullity should be the consequence of an administrative or procedural breach ( R v Guraj (2017) 1 WLR 22 at paragraphs 14, 16 and 22; R v Johal [2013] EWCA Crim 647; R v T [2010] EWCA Crim 35 As regards Ground 2, Ms Brickman submitted in summa......
-
R v Edward Stewart Holland
...pointed out and will return to, because the applicant has asked for more time to gather evidence. 52 Finally, we note that in R v Guraj [2016] UKSC 65; [2017] 1 WLR 22, the Supreme Court emphasised that the question, where there has been a procedural defect in this context, is one of fair......