R v Soneji (Kamlesh Kumar)

JurisdictionEngland & Wales
Judgment Date21 July 2005
Neutral Citation[2005] UKHL 49
Date21 July 2005
CourtHouse of Lords

and another


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

[2005] UKHL 49



My Lords,


The central question of law arising on the appeal before the House is whether the Court of Appeal acted on the correct legal principle when it quashed two confiscation orders made by the Crown Court pursuant to the Criminal Justice Act 1988, as amended by the Proceeds of Crime Act 1995: R v Soneji and Bullen [2004] 1 Cr App R(S) 219. [2004] 1 Cr App R(S) 219.


The Confiscation Regime.


Parliament has firmly adopted the policy that in the fight against serious crime, apart from ordinary sentences, a high priority must be given by the courts to the making of confiscation orders against defendants convicted of serious offences. The purpose of confiscation proceedings is to recover the financial benefit that the offender obtained from his criminal conduct. In England and Wales the confiscation regime was introduced by the Drug Trafficking Offences Act 1986. It was extended by the Criminal Justice Act 1988 to cover other indictable offences and specified summary offences. Since its introduction this legislation has been amended from time to time. The approach reflected in this legislation has been reinforced by the United Kingdom's ratification on 28 June 1991 of the United Nations Convention Against Illicit Traffic in Narcotic Drugs And Psychotropic Substances 1988 and ratification on 28 September 1992 of the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime 1990.


The most recent statute is the Proceeds of Crime Act 2002, which came into force on 24 March 2003. The aim of the new statute is to create an effective unified regime of confiscation law. Given the almost year by year amendment over the last 20 years of sometimes overhasty criminal legislation, and the great difficulties created for the courts by much of this flood of legislation, it would be innocent to predict that the 2002 Act has solved the problems involved in the criminal process of confiscation. On the present appeals the interpretation of the 2002 Act does not arise for consideration. Section 14(11) of the 2002 Act, however, is of some historical interest. It provides:

"A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement."

In the course of moving the Bill in the House of Lords the Lord Chancellor explained (Hansard, HL Debates, 25 June 2002, col 1241) that section 14(11) is:

"… designed to stop confiscation orders from being quashed merely because some procedural error has taken place in the application of the postponement procedures. I shall, if I may, provide your Lordships with a little background on this occasion, as it is directly relevant to the amendments.

As your Lordships will be aware, the Bill amends the postponement regime in the existing legislation…. It is important to understand, however, that the basic mechanics of the postponement regime envisaged by the Bill remain rather similar to those in the existing legislation.

Unfortunately, it is becoming increasingly clear that the courts are finding this legislation difficult to operate. A string of appeal cases testifies to the fact that defendants regularly attempt to have the confiscation order overturned on the ground that the postponement procedures were not applied properly by the court. Confiscation orders are being lost as a result. The case of Woodhead, [[2002] 2 Cr App R (S) 238] decided by the Court of Appeal in January this year, is a good example. In that case, the postponement procedures had been followed to the letter.

However, the Court of Appeal overturned a confiscation order of £200,000 on the grounds that the judge had not shown that he was exercising his discretion when agreeing to the postponement."

This provides some retrospectant evidence of the difficulties caused in practice by the postponement procedures under the 1998 Act.


The appeals before the House are governed by the 1988 Act, as amended. Under this legislation there is no provision like section 14(11). In other words, there is no express provision that a confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement.


For present purposes the relevant provisions of the 1988 Act are section 71(1) and section 72(A). Section 71(1), as amended, reads as follows:

"Where an offender is convicted, in any proceedings before the Crown Court or a magistrates' court, of an offence of a relevant description, it shall be the duty of the court –

  • (a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or

  • (b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed,

to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct."

The succeeding subsections of section 71 then spell out the duties of the court in detail. About section 71(1) three points must be noted. First, it places an overarching duty on the court when an offender is convicted to consider how to act in respect of confiscation. Secondly, even if the prosecutor does not seek by notice to persuade the court to consider confiscation, the court must of its own motion consider whether to embark on confiscation proceedings. Thirdly, the court must act in this way act before sentencing.


Section 72(A) of the 1988 Act, as amended, governs postponed determinations. It provides:

"(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 above ( 1) or (4) below, when taken together with the earlier specified period or periods,

exceeds six months beginning with the date of conviction.

(4) Where the defendant appeals against his conviction, the court may, on that account –

  • (a) postpone making any of the determinations mentioned in subsection (1) above for such period as it may specify; or

  • (b) where it has already exercised its powers under this section to postpone, extend the specified period.

(5) A postponement or extension under subsection ( 1) or (4) above may be made–

  • (a) on application by the defendant or the prosecutor; or

  • (b) by the court of its own motion.

(6) Unless the court is satisfied that there are exceptional circumstances, any postponement or extension under subsection (4) above shall not exceed the period ending three months after the date on which the appeal is determined or otherwise disposed of.

(7) Where the court exercises its power under subsection ( 1) or (4) above, it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the offence or any of the offences concerned.

(8) Where the court has so proceeded –

  • (a) subsection (1) of section 71 above shall have effect as if the words from 'before sentencing' onwards were omitted;

  • (b) that subsection shall further have effect as if references to an offence that will be taken into consideration in determining any sentence included references to an offence that has been so taken into account; and

  • section 72(5) above shall have effect as if after 'determining' there were inserted 'in relation to any offence in respect of which he has not been sentenced or otherwise dealt with".

The genesis of section 72A is as follows. The earlier provisions were premised on the basis that in the normal case the court would deal with the confiscation order before sentencing the defendant. The power to postpone confiscation proceedings was provided in effect as an afterthought by the Criminal Justice Act 1993.


Section 72(A) has spawned a substantial case law. A troublesome question has been whether under subsection (3), absent exceptional circumstances, the court is deprived of the power to make a confiscation order after the lapse of six months. In practice lapse of the six month limit has frequently been thought to compel the result that the convicted offender is freed from the penalty of confiscation.


In practice the courts have, as the Lord Chancellor observed during the passing of the 2002 Act, found the postponement procedures under section 72(A) difficult to interpret and apply. Many confiscation orders have been overturned for very technical failures. An example is R v Palmer, The Times, 5 November 2002, where the Court of Appeal quashed a confiscation order of more than £30 million because of a defect in a prosecutor's notice. The Court of Appeal has held that Palmer was wrongly decided: R v Sekhon [2003] 1 WLR 1655, 1672-1673, para 51-56; subsequently affirmed by a five-member court in R v Simpson [2004] QB 118. In both cases it was held that the provisions concerning postponement were directory only. This was an attempt by the Court of Appeal to ensure that mere procedural errors would not in future deprive the court of the power to proceed, if...

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