R v Knights (Richard Michael)

JurisdictionEngland & Wales
JudgeLORD CULLEN OF WHITEKIRK,LORD STEYN,LORD RODGER OF EARLSFERRY,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD CARSWELL
Judgment Date21 July 2005
Neutral Citation[2005] UKHL 50
Date21 July 2005
CourtHouse of Lords

[2005] UKHL 50

HOUSE OF LORDS

Regina
and
Knights

and another

(Appellant)

(On Appeal from the Court of Appeal (Criminal Division))

LORD STEYN

My Lords,

1

I have had the advantage of reading the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I agree with it. I would also make the order which Lord Brown proposes.

LORD RODGER OF EARLSFERRY

My Lords,

2

I have had the advantage of reading the speech of my noble and learned friend, Lord Brown of Eaton-under-Heywood, in draft. For the reasons which he gives, I too would answer the certified question in the negative and dismiss the appeal.

LORD CULLEN OF WHITEKIRK

My Lords,

3

I have had the advantage of reading the speech of my noble and learned friend, Lord Brown of Eaton-under-Heywood, in draft. For the reasons which he gives, I too would answer the certified question in the negative and dismiss the appeal.

LORD CARSWELL

My Lords,

4

I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Brown of Eaton-under-Heywood. I agree with his reasons and conclusions and I too would dismiss the appeal.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

5

This appeal was conjoined with and heard by your Lordships immediately following that in ( R v Soneji and Bullen [2005] UKHL 49). Both concern the making of confiscation orders pursuant to the Criminal Justice Act 1988 as amended (the legislation in force prior to the Proceeds of Crime Act 2002). Both raise broadly similar questions as to the need for strict adherence to the requirements of the legislation as a precondition of the court's power to make compensation orders. Does non-compliance with the strict requirements of the legislation disable the court from making such orders?

6

Everything which I wish to say generally with regard to these questions I have said in my opinion in the other appeal and I understand your Lordships to have followed the same course. That being so I propose to deal comparatively briefly with the present case, setting out the facts as shortly as may be, identifying the particular questions they raise and then applying to them the approach indicated in the other appeal. The legislation itself is fully set out in the other appeal (and more fully still in the judgment of the court below in the present case—reported under the title R v Sekhon [2003] 1 WLR 1655) and I shall accordingly set out only those very few provisions which lie at the centre of the argument.

7

In the summer months of 2000 these two appellants and four other men stood trial at Kingston-upon-Thames Crown Court upon a charge of being knowingly concerned in dealing with goods which were chargeable with duty which had not been paid, with intent to defraud, contrary to section 170(1)(b) of the Customs and Excise Management Act 1979. Six separate consignments of cigarettes had been imported from Dubai over a five month period between November 1997 and April 1998, purportedly for transhipment to Nigeria, but instead channelled onto the domestic market. The excise duty thereby lost to the Exchequer amounted to some £3.6m.

8

The trial began on 19 June 2000 and ended with the jury's conviction of Maguire on 12 October 2000. Earlier in the trial, on 10 July 2000, Knights had changed his plea to one of guilty and had been remanded for sentence.

9

The first mention of the case after completion of the trial was on 16 October 2000 when the trial judge, His Honour Judge Haworth, set a timetable for sentencing and for confiscation proceedings (the prosecutor having on 28 September 2000 given notice to all six accused that confiscation orders would be sought). Sentence was fixed for the following day, 17 October, save in the case of one defendant whose counsel was then unavailable. As to the confiscation proceedings, the court directed that the prosecution's statement (under section 73(1A) of the 1988 Act) be served by 11 December 2000 and that the case then be mentioned again on 4 January 2001, with a view to fixing a final hearing at the end of January (the judge noting that for a substantial part of January he was to be away on leave). On 4 January 2001 the confiscation proceedings were again adjourned to 23 January 2001, the judge holding that his own unavailability meantime amounted to exceptional circumstances within the meaning of section 72A(3) of the 1988 Act.

10

On 17 October 2000, as earlier arranged, the appellants were sentenced, Maguire to a term of 42 months imprisonment, Knights to 28 months imprisonment. No question now arises with regard to those sentences. Rather, as already indicated, the appeal concerns the confiscation orders which eventually came to be made on 30 July 2001: against Maguire in the sum of £114,930, against Knights in the sum of £139,260.

11

The quantum of these orders is easy to explain. Maguire was concerned in five of the six consignments, Knights in all six. As is well known, the amount to be paid by an offender under a confiscation order is the amount by which he has benefited from his wrongdoing or, if less, the amount of his realisable assets. These orders were based on the benefits received, the judge having "no doubt whatsoever that each has his nest egg salted away" (in other words that each appellant's realisable assets were no less than the benefits received). As for the calculation of the benefits received, this was based entirely upon what became known during the trial as "the smoking gun document", a sheet of paper in Knights' handwriting found in Maguire's Ferrari showing how each had benefited from one of the consignments to the extent of £25,290, a figure based on the profit being realised from each imported carton less the sums payable to the drivers.

12

Although, as earlier indicated, the confiscation orders were not finally made until 30 July 2001 (at the conclusion of a six-day hearing), nothing turns on the further postponements and delays between 23 January 2001 and the final hearing. These later delays were either at the appellants' request and for their benefit or because of the need to deal with their arguments as to the validity of the prosecutor's original notice (a point to which I shall briefly return). Rather the appellants' principal complaint is directed to the postponements of the confiscation proceedings, first from 16 October 2000 to 4 January 2001 and then from 4 January 2001 to 23 January 2001. This second postponement, of course, took the hearing date beyond the six months provided for by section 72A(3), at least so far as Knights was concerned (he having been convicted on his plea of guilty on 10 July 2000).

13

I must now set out the first three sub-sections of section 72A of the 1988 Act as amended:

"(1) Where a court is acting under section 71 above but considers that it requires further information before—

  • (a) determining whether the defendant has benefited from any relevant criminal conduct; or

  • (b) …

  • (c) determining the amount to be recovered in his case …,

it may, for the purpose of enabling that information to be obtained, postpone making that determination for such period as it may specify.

(2) More than one postponement may be made under subsection (1) above in relation to the same case.

(3) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above which—

  • (a) by itself; or

  • (b) where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods,

exceeds six months beginning with the date of conviction."

14

As I understand the appellants' central argument on the appeal it is this. Section 72A(1) allows the court to postpone the making of a relevant determination within confiscation proceedings but only on terms that it specifies the precise period of such postponement. It must in other words stipulate the date when the actual determination is to take place. If it fails to do so the postponement is invalid. In that event the court will not properly have exercised its power to postpone and will not have been entitled to proceed to sentence under subsection...

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