R v Guraj - (14 Dec 2016)

Although confiscation may follow sentence, it is to be dealt with promptly

Criminal

Respondent, pleaded guilty on 11 June 2012 to offences involving supply of heroin and money laundering. He had been caught in possession at his home of about 1.5Kg of heroin, some amphetamine and some cocaine. The offences were lifestyle offences for purposes of POCA. On 16 July 2012, Respondent was sentenced to terms of imprisonment totalling five years and four months. At same time, judge made, apparently without any question arising as to propriety of doing so, orders (a) forfeiting drugs under Section 27 of Misuse of Drugs Act 1971, and (b) depriving Respondent of a car, a laptop, five mobile telephones, some scales, press and a money-counting machine, pursuant to Section 143 of Powers of Criminal Courts (Sentencing) Act 2000, on basis that they had been used for purposes of crime. Also at same time, judge gave directions for progression of confiscation aspect of case. Timetable set by judge for confiscation slipped badly. Whilst lamenting repeated errors of prosecution, Judge rejected defence argument and on 9 June 2014 made a confiscation order in a sum which had been by then agreed, subject to jurisdiction point. Court of Appeal took the opposite view to the judge on jurisdiction point and quashed confiscation order.

Manifest purpose of Section 14(11) is to remove any supposed rule that a procedural failure connected with postponement invalidates confiscation procedure and prevents an order being made. Such a failure cannot thereafter be sole ground for quashing a confiscation order. Section14 of Act, allows confiscation proceedings to be postponed until after sentence, for up to two years from conviction. Postponement may be applied for by parties or may be granted by Court of its own motion. If there is a defect in procedure relating to postponement, as there was here, Section14(11) states that this alone is not sufficient to require a confiscation order made in defective proceedings to be quashed. However, Section14(12) dis-applies Section 14(11) where, before making of a confiscation order, an order has been made which Section15(2) says should not precede a confiscation order. Present case is one to which Subsection (12) applies, because judge had inadvertently infringed Section 15(2) by making the forfeiture and deprivation orders before confiscation had been considered. Therefore, where forfeiture and deprivation orders have been made prior to confiscation proceedings, rule under Section14(11) – that Court is not prevented from making confiscation orders solely because there was a defect in procedure relating to postponement – does not apply

In event of a very long period of inactivity, correct inference may well be that unfairness to accused has ensued; his own affairs and, importantly, those of others may have been on hold, or may even have been conducted on basis that, threat of confiscation had gone away, to extent that to resume the process is unfair. Statute's intention is clearly that although confiscation may follow sentence, it is to be dealt with promptly. Duty to remove assets falling within proceeds of crime legislation is clearly a legislative priority.

Judge applied the correct test. In present case, it is not suggested that any unfairness has befallen Defendant in consequence of irregularities which occurred. There was no obstacle to making of the confiscation order, and it ought to have been made. Crown's appeal allowed and order restored.

Relevant : Section14 of Proceeds of Crime Act,2002

Tags : CONFISCATION QUASHING RESTORATION