Neutral Citation Number: [2009] EWCA Crim 193
Case No: 200801426
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CARDIFF CROWN COURT
HH JUDGE DAVID MORRIS

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/02/2009
Before :

LORD JUSTICE PILL
MR JUSTICE MADDISON
and
SIR GEOFFREY GRIGSON
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Between :

	Crown Prosecution Service Swansea	Appellants	
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	Karl Gilleeney and Gail Gilleeney	Respondents	

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 Mr Ieuan J Morris (instructed by CPS, Special Case Work, Swansea) for the Appellants
Mr Graeme Wilson  (instructed by Andrew Keenan & Co)for the Respondents

Hearing date : 15 January 2009
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Judgment
Lord Justice Pill : 
1.	On 6 November 2006, in the Crown Court at Cardiff before His Honour Judge Stephen Hopkins QC, Karl Gilleeney and Gail Gilleeney (“the respondents”) pleaded guilty to offences involving drugs and other offences.  On 16 May 2007, Karl Gilleeney was sentenced by His Honour Judge David Morris to a total of 13 years imprisonment, less 614 days under section 240 Criminal Justice Act 2003, for two offences of conspiracy to supply a controlled drug of Class A (cocaine).  Sentences of 8 years imprisonment and 5 years imprisonment were ordered to run consecutively.  Concurrent sentences, of 6 years and 12 months respectively, were imposed for an offence of conspiracy to money launder and a conspiracy to convert criminal property.  
2.	For an offence of conspiracy to convert criminal property, Gail Gilleeney was sentenced to 8 months imprisonment suspended for 12 months.  A restraint order was made against the respondents on 16 September 2005.    
3.	Confiscation proceedings were mentioned by the judge on 7 November 2006 in circumstances to which we will refer.  On 2 June 2008, Judge David Morris ruled that the court no longer had jurisdiction to consider making confiscation orders.  The prosecution’s application for leave to appeal against that finding has been referred to the full court by the Registrar.  Leave is granted.  The judge held that Judge Hopkins had, on 7 November 2006, exercised his power under section 14(1)(b) of the Proceeds of Crime Act 2002 (“the 2002 Act”) to postpone proceedings under section 6 of the Act for a period of 6 months when ordering the prosecution to provide statements of information under section 16 of the Act within that period.  
4.	Section 6 deals with making confiscation orders and provides that the Crown Court must proceed under the section if (amongst other circumstances) a defendant is convicted of relevant offences in proceedings before the Crown Court and the prosecutor asks the court to proceed under the section (section 6(1) to (3)).  No application to extend the period of postponement was made before the 6 month period stated by Judge Hopkins expired on 6 May 2007.  In a careful ruling on 2 June, Judge Morris concluded that in the absence of an application for an extension under section 14(8) before the end of the 6 month period, the confiscation proceedings had ended and there was no power to revive them.  The provisions of section 14(11), which provide that in certain circumstances 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, could not apply.  
5.	As already stated, Judge Morris had proceeded to sentence the defendants, including the present respondents, on 16 May 2007.  At the same time, and notwithstanding that the 6 month period had ended, the judge, without hearing full legal argument, allowed the prosecution a further 2 months in which to serve statements of information under section 16 of the 2002 Act.  
6.	For the prosecution, Mr Morris submits, as he did before Judge Morris, that the order made by Judge Hopkins on 6 November 2006 was not an order to postpone proceedings under section 14(1)(b) of the 2002 Act but an order to proceed under section 6 before sentencing the defendants, under section 14(1)(a) of the Act.  
7.	Section 14(1) of the 2002 Act provides:
“The court may – 
(a)	proceed under section 6 before it sentences the defendant for the offence (or any of the offences) concerned, or 
(b)	postpone proceedings under section 6 for a specified period.”
It will be noted that paragraphs (a) and (b) are disjunctive.  
8.	Sections 14(2) and the following sub-sections use the word “postponement” and appear to relate only to section 14(1)(b), as does section 15.  Section 15 provides:
“If the court postpones proceedings under section 6 it may proceed to sentence the defendant for the offences (or any of the offences) concerned.”
9.	Section 16(1) of the Act provides that the prosecutor must give the court a statement of information within the period the court orders but the court has power under section 16(7) to vary an order requiring a statement of information to be given within a specified period “at any time”.  Mr Morris submits that the effect of Judge Hopkins’ order was that the court was proceeding under section 6, within the meaning of that term in section 14(1)(a), by making an order under section 16(1) requiring the prosecutor to give the court statements of information within 6 months.  On 16 May 2007, the judge, without hearing legal argument, exercised his power to extend that period after it had expired under section 16(7).  
10.	Until the jurisdictional point was raised at the later hearing, Judge Morris was clearly minded to grant the extension of 2 months and, if he had power to do so, the extension would stand by virtue of an exercise of the power under section 16(7).  In the event, the relevant statements were served on 28 June 2007, that is within the 2 month period of extension purportedly granted.  
11.	Judge Morris stated that his normal practice, if in the position Judge Hopkins had been in on 7 November 2006, was “to fix a timetable forthwith together with a benefits hearing at a suitable future date within the permitted period, such as was reasonable to allow all parties proper time to prepare their respective cases”.  Judge Hopkins did not fix such a timetable, nor was he asked to do so.  When making his ruling, Judge Morris stated that its effect, which was that taking confiscation proceedings against the respondents was impossible, “stuck in the gullet”.  
12.	Accordingly, it is necessary to consider what Judge Hopkins said on 7 November 2006: 
“JUDGE HOPKINS: Is there an application under the Proceeds of Crime Act? 
MR MORRIS: There is, your Honour
JUDGE HOPKINS: There will be service by the prosecution upon the court and the defence, I think you told me it was a six month period? 
MR MORRIS: Yes, thank you. 
JUDGE HOPKINS: With a six month period for it to be done, of a statement setting out what is suggested under The Proceeds of Crime Act, so far as Bethan Jones is concerned. 
MR MORRIS: Thank you.
JUDGE HOPKINS: I will not set out any other timetable at the moment.  Six months is a long way off.  I certainly hope that sentencing can take place well in advance of that.”
It is common ground that the direction, whatever its effect, was not confined to Bethan Jones.  It is clear that neither Judge Hopkins on 7 November 2006 nor Judge Morris when he sentenced the defendants on 16 May 2007 addressed the question whether Judge Hopkins acted under paragraph (1)(a) or (1)(b) of section 14 of the 2002 Act.       
13.	For the respondents, Mr Wilson submits that by his direction on 7 November 2006, Judge Hopkins “postponed” proceedings under section 6 of the 2002 Act for 6 months under the provisions of section 14(1)(b).  While the word “postpone” was not used, that was the effect of the direction.  It could also be argued that, because of the wording of section 15(1), Judge Hopkins’ belief that sentence would be imposed within the 6 month period he had granted and thus before confiscation proceedings were complete was an indication that it was a “postponement” he intended.  If, contrary to those submissions, the direction was to proceed under section 6, within the meaning of section 14(1)(a), rather than to postpone proceedings under section 14(1)(b), Judge Morris had power, which he exercised on 16 May 2007, to extend the 6 month period for giving the statements of information.  We did not understand that to be in issue.    
14.	While Judge Hopkins contemplated that sentence would precede the end of the 6 month period from 7 November, in the event it did not and we need to consider the consequences of that.  Under the regime for confiscation orders provided by the Criminal Justice Act 1988 it was contemplated that the court would deal with the confiscation order before sentence (R v Soneji [2005] UKHL 49), but a power to postpone was provided by the Criminal Justice Act 1993 (Soneji paragraphs 6 and 7 per Lord Steyn).  In Soneji it was held that neither the sentences nor the confiscation orders should be invalid merely because the sequence required by section 71(1) of the 1988 Act was not followed (Lord Rodger of Earlsferry at paragraphs 39 and 40).  Soneji demonstrates that and also demonstrates a determination not to allow convicted offenders to escape confiscation on the basis of bona fide errors in the judicial process.  It could not be argued in the present case that the sentences are invalid, whichever procedure was intended on 7 November 2006.  The sequence of events, as between sentence and confiscation order, does not in our judgment determine the present issue.  A power to sentence in advance of the completion of the section 6 proceedings can be read into section 14(1)(a), a view reinforced by Soneji.       
15.	We have come to the conclusion that the directions given by Judge Hopkins on 7 November 2006 should be treated as a decision to proceed under section 6 before sentence and not a decision to postpone proceedings under section 6 for a specified period.  Section 14(1)(a) plainly contemplates that proceedings under section 6 may commence before sentences are imposed.  The present tense is used in the paragraph and proceedings under section 6 commenced with the requirement that the prosecution give the court statements of information within 6 months, under section 16(1).  There is no requirement to complete the proceedings under section 6 within a particular period, or before sentence, or that a direction under section 14(1)(a) requires directions beyond that to provide statements of information.  Judge Hopkins did not direct a postponement under section 14(1)(b) and the word “postpone” was not used by him.  The flexibility permitted by the statutory procedure is such that, in the absence of the point being addressed specifically, Judge Hopkins’ belief that sentence would predate the completion of confiscation proceedings does not demonstrate an intention to “postpone”.     
16.	It has not been suggested on behalf of the respondents that they have been prejudiced by delay in the confiscation proceedings.  We do however stress the importance of judges stating plainly whether they are acting under section 14(1)(a) or section 14(1)(b) to avoid situations such as the present arising.  Statements of information should of course be prepared promptly whichever route is taken.      
17.	Section 31(2) of the 2002 Act gives the prosecution a right to appeal to the Court of Appeal against a decision not to make a confiscation order and Mr Wilson submits that no such decision was taken.  In our judgment, the decision of Judge Morris on 2 June 2007 amounted to a decision not to make a confiscation order.  He held that he had no jurisdiction to make one.  In R v Hockey [2008] 1 Cr App R(S) 50 it was held that a decision to adjourn a confiscation application sine die amounted in the circumstances of that case to a decision not to make a confiscation order within the meaning of section 31(2).  The judge had reserved the matter to himself and said that he had no intention of restoring the application to the list.  The judge’s ruling in the present case, though made on quite different grounds, also amounts to such a decision.    
18.	This appeal was properly brought and is allowed.