Waiver of Legal Professional Privilege
| DOI | http://doi.org/10.1177/002201839906300527 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
Waiver
of
Legal
Professional
Privilege
were 'exceptional circumstances' which justified the postponement of
the making of the decision as to a confiscation order.
HELD,
ALLOWING
THE
APPEALS,
the confiscation orders be quashed
because the term 'convicted' as used in s 72(1) and s
72AA
refers to the
date on which the offender is found or pleads guilty, so that time must
run
from that date unless there are 'special circumstances'. Here, the
judge's certification that there were such circumstances was itself made
after time
had
run
out, so that it could not affect
what
had already
happened.
COMMENTARY
It
was argued that, since acourt has the power to grant leave to change
a plea of guilty, a decision that the plea is a conviction means that one is
able to change one's plea even after conviction (if the court grants
leave). Counsel argued that 'it is generally regarded to be the position for
the purposes of the criminal law' that that change cannot be permitted
after conviction. In Rv
Cole
The
Independent,
30 April 1998, the court
considered the similar provision under the Drug Trafficking.Act 1994.
Counsel argued
that
the
two Acts are aimed at the same
object-to
deprive the criminal of the benefits derived from his criminal activity.
The court's decision was that a confiscation order against a drug traf-
ficker must be made before sentence, unless there are exceptional
circumstances in which apostponement of the decision to make an
order can be permitted. Counsel contended that that decision should be
followed in any consideration of the similar provisions in the 1988-Act,
unless there were good reasons for
not
doing so. The court observed in
the present case that the statutes were penal statutes, so that they
had
to
be strictly construed in favour of the defendants. But, in any event, the
term 'convicted' means found guilty either on a plea or after a trial
and
it does not include the sentence imposed as a result of the conviction.
Indeed this distinction was made clear in the Drug Trafficking Act 1994,
as originally drafted, for it made clear that a confiscation order can be
made only after conviction,
but
also that it had to be made before
sentence. The fact that the Acts make it clear that any order must not be
taken into account
when
sentencing demonstrates
that
conviction and
sentence are to be kept separate, while the compensation order is, as
the Americans might say, 'something 'else',
It
followed that both the
decisions made by the judge, namely, to make the order and to certify.
'exception circumstances','were in error.
Waiver of Legal Professional Privilege
R v
Bowden
[1999] 1 WLR 823
The appellant was charged with robbery, it being alleged
that
he was one
of three robbers
who
attacked a security guard in a restaurant and
robbed him of £9,500. He was identified by two police officers.
It
was
said that immediately after the robbery, he had gone abroad
on
holiday
443
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