Confiscation Postponement

 

Ben Douglas-Jones KC (leading Christopher Jeyes, John McNally, Andrew Taylor, Bethan Evans, Justin McClintock, Umar Shahzad, Nicholas James, Emma Coverley, Rebecca Freitas and Michael Cranmer-Brown) was assigned by the Registrar in to represent the ten respondents in this case. 

 

The Court overruled Iqbal [2010] 1 WLR 1985 and found that Soneji [2006] 1 AC 340 and Guraj [2017] 1 Cr. App. R(S) 32 were clear binding authority.

 

The principles stemming from the judgment are these:

• If confiscation proceedings have not concluded before sentence, they may be started and postponed so that they conclude after sentence.  A court becomes functus officio when sentence has been imposed and the time for variation or rescission of the sentence has elapsed (56 days from sentence).  The postponement provision is a procedural device to prevent a court from being unable to conduct confiscation proceedings after sentence for this reason.  It is an enabling rather than a limiting provision.

• The two year permitted period provided by section 14 of the 2002 Act limits the time between the point when the court comes under a statutory duty to proceed as required by section 6 of the 2002 Act and the time when the confiscation proceedings are to be concluded.  It is irrelevant to the point at which that duty to proceed arises.

• The permitted period may be extended if there are exceptional circumstances so that it is longer than two years.  This may happen whether the two year period has expired or not, and whether an application was made before expiry or not.  It can happen even if no application has ever been made.

• Compliance with the procedural requirements of section 14 of the 2002 Act is not a condition precedent to the court retaining jurisdiction to make a confiscation order.  Jurisdiction is retained until the proceedings are determined in accordance with section 6 of the 2002 Act.

• Non-compliance with procedural requirements of section 14 may be relevant to what order the court considers it fair to make.  In some very rare cases it may render the proceedings an abuse of process.

• Courts need to case-manage confiscation proceedings so they are determined in a timely way, striving to ensure they conclude no later than two years after conviction.

• When considering whether there are exceptional circumstances justifying an extension of the permitted period, the court should take a broad view of what constitutes exceptional circumstances.  

Barrister Alexander Greenwood gives a first-hand account of the first trial to take place in the UK during lockdown and offers some thoughts on how the ‘new normal’ of courtroom procedures could affect trading standards cases.

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Alexander Greenwood's new article "CPRs vs. the Fraud Act" in the Journal of Trading Standards.

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In July 2020 the National Crime Agency and police, together with European partners infiltrated an encrypted communication platform known as Encrochat . According to Europol this has led to the seizure of in excess of 10,000 kilos of cocaine alone. The number of arrests in the UK is increasing and the National Crime Agency has already reported nearly 750 arrests. 

The Western Mail reported the impact of the EncroChat infiltration in South Wales:

"Police in Wales have joined colleagues from around Europe in a major operation targeting serious organised crime gangs after the criminals' communications were secretly monitored.

The huge international operation has seen 30 arrests in Wales while more than £2.5m in cash along with in excess of 60kg of cocaine, crack cocaine, and heroin with an estimated street value of £6m being seized across the south of the country alone."

Apex Chambers have been instructed in early cases coming before the courts and are able to offer advice if you are effected by the EncroChat hack.  

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