Posted: 10 / 04 / 2020
In these very difficult times the making of a confiscation order may be considerably delayed. What are the statutory time limits for the making of a confiscation order – and what are the consequences of missing a deadline?
The basic time limit
Perhaps surprisingly, when confiscation orders were originally introduced into English law in the 1980’s the thinking was that the making of a confiscation order would be straightforward and could be done simultaneously with sentencing. But it rapidly became obvious that matters were not that simple. In consequence an option was written into the statutes to permit the making of the confiscation order to be postponed until after sentencing. This was initially hedged about with qualifications, so that at first the making of the confiscation order could be postponed only where the court considered that it required further information.
In the Proceeds of Crime Act 2002, section 14 deals with postponement. This provides that confiscation proceedings may be postponed “for a specified period” which may be extended. However ordinarily the period of postponement should end no later than the second anniversary of the date of conviction.
The date of conviction means the date on which the defendant was convicted (not the date he was sentenced following his conviction). Where there is more than one date of conviction relevant to the confiscation order to be made, then the time runs from the date of the latest of those convictions.
There are further provisions where a conviction is the subject of an appeal, s14(6).
Extending the specified period
The specified period may be extended, but with some restrictions.
If the previously specified period has not yet ended, the court may extend the specified period without difficulty to a new date no later than the second anniversary of the date of conviction. This is also the case if the previously specified period has ended but an application for an extension was made before it had ended, s14(8).
The same is true if the court is considering extending the specified period to a new date later than the second anniversary of the date of conviction – but only if the court finds that there are “exceptional circumstances”, s14(4).
In practice this sets a low bar and courts have had little difficulty in finding “exceptional circumstances” where, for example, courts have been congested and no available date has been found before the second anniversary of the date of conviction which would be convenient to all the parties.
I would suggest that the current coronavirus pandemic without doubt gives rise to “exceptional circumstances” which would justify a postponement beyond the second anniversary of the date of conviction.
Who can apply for an extension?
A postponement or extension may be made on the application of the prosecutor or the defendant, or by the court of its own motion, s14(7). It appears not to be necessary for a decision on postponement to be made in open court in every case.
How might things go wrong?
There is a possibility of a mis-step at every stage. For example, on sentencing (and pre-confiscation), an order, such as for the forfeiture of seized drugs, might be made in breach of s15(2), or a postponement might be made without a date being specified. After an initial postponement no application may be made for a further postponement until after the existing period had expired, or a date later than the second anniversary of the date of conviction might be specified without any consideration of whether there were “exceptional circumstances” to justify that.
In each case the effect would be to take the proceedings outside the process envisaged in the legislation.
What are the consequences when things go wrong?
There have been a number of cases in which it has been argued that the court has lost the power to make a confiscation order, or that a confiscation order which has been made should be quashed, as a result of a deadline being missed, or a failure to consider whether there were “exceptional circumstances” when postponing beyond the second anniversary of the date of conviction.
The Proceeds of Crime Act 2002 clearly establishes a duty on the court to make a confiscation order in appropriate circumstances. Parliament did not intend that to be frustrated by a merely technical error in the mechanics of postponement. To avoid that, the legislation provides 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, s14(11). This statutory rule is subject to limited exceptions, s14(12).
However the word “only” in s14(11) should not be overlooked.
The leading case in this area is the UK Supreme Court decision in R v Guraj  UKSC 65. This case is worth reading if it is proposed to submit that the court has lost jurisdiction to make a confiscation order.
Essentially the position appears to be that only rarely would a court be unable to proceed to make a confiscation order following an error of one of the types described above. Such a rare event might occur where prosecution failures had led to an unfairness which could not be cured.
A potential unfairness might be cured, however, by allowing the defendant further time to prepare his case, or by making a less severe confiscation order which would be proportionate in all the circumstances.
It will only be where prosecution failures have led to an incurable unfairness resulting from the making of any confiscation order against the defendant, that the courts will be persuaded that no confiscation order should be made.
An example of a case in which a court held that an incurable unfairness would result from the making of any confiscation order against the defendant is set out by Alexandra Sutton of Exchange Chambers in an article HERE.
However it is most unlikely that the current pandemic will result in large numbers of confiscation cases falling by the wayside.
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(Note: This article applies to confiscation proceedings under the provisions of Part 2 of the Proceeds of Crime Act 2002 in England and Wales. There are a number of additional issues which could be relevant to a defendant’s confiscation proceedings in particular cases which it is not possible to deal with in a relatively short article such as this. Appropriate professional advice should be sought in each individual case.)