R v Soneji (Kamlesh Kumar)

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLord Justice Pill
Judgment Date20 Jun 2003
Neutral Citation[2003] EWCA Crim 1765
Docket NumberCase No: 2002/01181/Y5

[2003] EWCA Crim 1765

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Before:

Lord Justice Pill

Mr Justice Gray and

Mr Justice Roderick Evans

Case No: 2002/01181/Y5

2002/01310/Y5

Between
R
and
Kamlesh Kumar Soneji
David Bullen

Mr N Valios QC and Mr C Meredith for the Appellants

Mr D Walbank for the Crown

Lord Justice Pill
1

On 24 March 2000 in the Crown Court at Southwark before His Honour Judge Focke QC, Kamlesh Soneji pleaded guilty to an offence of conspiracy to convert property and remove it from the jurisdiction knowing or suspecting it represented the proceeds of criminal conduct. On 3 April 2000 David Bullen pleaded guilty to the same offence. On 18 August 2000 Soneji was sentenced to 4 1/2 years imprisonment, varied on appeal to 3 1/2 years imprisonment, and Bullen to 6 years imprisonment, varied on appeal to 5 years imprisonment. On 28 January 2002, at the Central Criminal Court before the same judge, a confiscation order was imposed on Soneji. He was ordered to pay £75,350 payable within 18 months with 12 months imprisonment consecutive to be served in default. That order was varied on 7 February 2002 to payment of £30,284 with 9 months imprisonment in default. On 7 February a confiscation order was imposed on Bullen. He was ordered to pay £375,000 with 21 months imprisonment consecutive in default.

2

A co-defendant Louis Everson was also convicted and on 18 August 2000 sentenced to 7 years imprisonment. An appeal against conviction was dismissed. On 7 February 2002 a confiscation order was imposed on him. He was ordered to pay £200,000 with 18 months imprisonment consecutive in default.

3

Soneji and Bullen appeal against sentence, the confiscation order only, by leave of the single judge. This is yet another case in which the lawfulness of confiscation orders is challenged on the ground that they were made more than "six months beginning with the date of conviction", a period of time mentioned in section 72A of the Criminal Justice Act 1988 ("the 1988 Act"), as amended. Many authorities were cited to the Court. In the course of the hearing, further very recent cases were brought to the attention of counsel and it also became known that a five judge court had been convened to consider whether an earlier judgment which had been relied on was reached per incuriam. The Court has received extensive post-hearing written submissions from the parties. There can rarely have been such judicial output upon what would appear to be a comparatively straightforward question, that is, when, in relation to the date of conviction, a Court is entitled to make a confiscation order against the convicted person. There have been increasingly complex attempts, including submissions in the present case, to reconcile the authorities.

4

Section 71(1) of the 1988 Act provides, insofar as is material:

"(1) 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 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.

(1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct.

(1B) Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then—

(a) determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and

(b) make an order under this section ordering the offender to pay that amount."

5

By the Criminal Justice Act 1993, a new section, section 72A, was inserted into the 1988 Act. That section, as further amended and insofar as is material, 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) [repealed];

(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.

(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 theprosecutor; 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."

6

As already stated, Soneji pleaded guilty on 24 March 2000 and Bullen on 3 April 2000, those date being the dates of conviction for the purposes of the Act. Sentence was adjourned to await the outcome of the trial of Everson. He was convicted on 25 May and 18 th August 2000 was fixed as the date when all three defendants would be sentenced. Each of the defendants was informed that there would be confiscation proceedings against him.

7

The case was listed on 29 June 2000 for an application by counsel for Everson to break the date for sentence but the application was not pursued. Counsel for Soneji and Bullen were present at the hearing, though not counsel who had appeared at the trial or who now appear. The powers of the Court with respect to confiscation proceedings and their application to the facts of the case were considered at that and other hearings. Counsel for Everson (Mr Henry) requested a hearing in September and counsel for Soneji (though not counsel for Bullen) requested an early hearing. The following exchange occurred:

"MR HENRY: Your Honour, may I deal with it in this way if I might; it has been helpful because all counsel have conferred this morning and have indicated that a final hearing, if it can be accommodated by the Court, or more importantly by your Honour, if it might be held in September. It is right to point out –

JUDGE FOCKE: The answer is no.

MR HENRY: Well your honour, it is right to point out.

MR WALBANK: I am very sorry to interrupt but Mr Henry seems to be proceeding on a false basis about the likely date on which the hearing could be accommodated. It might have been wise, before addressing your Honour on the timetable, to have some discussions, which I have now had, with Ms Benjamin the listing officer.

I understand from her that the earliest date when the hearing could be accommodated would be some time in the two weeks after 30 th October. That is the first occasion when your honour would be available to hear the confiscation proceedings."

Mr Walbank told the court of what he understood to be the inherent common law power, in some circumstances, to adjourn or postpone for a period of more than 6 months from conviction but added that "to be completely safe, it would be sensible in my submission, to consider whether there were exceptional circumstances justifying delay". Dates were fixed for the service of statements.

8

At the suggestion of counsel for Soneji, the judge directed that the matter was to be mentioned again on the proposed date for sentence, that is 18 August. The judge said that he had "pencilled in" a date "at the beginning of November, the week of 30 October" for the confiscation hearing, a date more than four months away.

9

On 18 August, the judge sentenced the defendants. Prior to sentence the confiscation hearing was formally postponed until after passing sentence and fixed for 30 October, that is outside the 6 month period mentioned in section 72A. The judge also ordered that the defendants should make any response to the prosecution's statement upon the confiscation order. As the judge stated when he gave a further ruling on 3 November 2000, no enquiry was made on 18 August of the defendants either as to the postponement or as to the fixing of the date of 30 October. The judge added: "There was no analysis of the factors which might amount to exceptional circumstances on that occasion nor how they might separately affect each defendant".

10

On 30 October, the prosecution requested a further postponement until a date in the new year. The defendants Soneji and Bullen then objected to the confiscation proceedings on the basis that no proper application had been made within six months. The judge stated in a ruling on 3...

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