Case No: 2000/02702/W1
Neutral Citation Number: [2001] EWCA CRIM 560 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL APPEALS)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
(His Honour Judge Clifton) 
Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 13th March 2001

B e f o r e :

LORD JUSTICE POTTER
MR JUSTICE STANLEY BURNTON
and 
THE RECORDER OF MANCHESTER
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	            REGINA		
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	           KEITH ROSS		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Christopher Convey Esquire (instructed by the Crown Prosecution Service)
Nicholas Johnson Esquire (instructed by Pearson Fielding, Merseyside, for the appellant)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Potter: 
INTRODUCTION
1.	On 8th November 1999, at the Crown Court at Liverpool, the applicant pleaded guilty on re-arraignment to a serious drugs offence and he was sentenced next day, on 9th November 1999, by His Honour Judge Clifton as follows:
Conspiracy to supply a Class A drug (Heroin): 11 years imprisonment
2.	On 10th April 2000, in the same court, the judge made a Confiscation Order under the Drug Trafficking Act 1994 (“the Act”) in the sum of £41,000, to be paid within nine months, with sixteen months imprisonment in default.  The issue raised on this appeal is whether, in the particular circumstances of the case, the judge had jurisdiction to make such an order.  
3.	The appellant’s original application for leave to appeal against the confiscation order was refused by the single judge.  However, leave was granted by the Full Court on 1st December 2000. 
THE PROCEEDINGS BELOW
4.	The relevant matters so far as the point at issue in the appeal is concerned are that on 8th November 1999, the plea having been taken, the prosecution opened the facts with a view to the judge passing sentence upon the appellant and his three co-defendants.  At the conclusion of the prosecution opening, the judge asked ‘What about the Drug Trafficking Act 1994, am I going to be asked to consider that at all?’, to which counsel for the Crown replied: ‘No, Your Honour, you are not’.  The matter was then adjourned for sentencing on the following morning.
5.	The next day, when the judge was about to pass sentence, counsel for the Crown indicated that he was after all asking for an inquiry under s.2 of the Act and for such inquiry to be postponed.  The judge asked defence counsel whether they wished to say anything and Mr Birts QC, for a co-defendant of the appellant who had also pleaded guilty (McFaul), objected.  He said:
“There has been a misunderstanding and it is most unfortunate.  …. the clear impression which McFaul had, and I think it is shared by the other defendants, is that there was going to be no inquiry in this case, and plainly expectations have been risen and legitimately risen.  It is very unfortunate that this should now happen.”
6.	The judge then said that he understood and asked counsel for the appellant whether he wished to say anything.  He indicated that he did not.  Without ruling on the matter, or adding anything further, the judge then said: 
“It does not affect the sentences anyway, of course, that I am about to pass.”
and he then proceeded to pass sentence on all four defendants.
7.	After sentencing was complete and the defendants had left court, the judge said to counsel for the Crown:
“Mr Joyce, in view of the fact that there is likely to be an inquiry under the Drug Trafficking Act, I do not think it appropriate to say anything more at the moment.”
8.	Mr Joyce then asked the judge if he would fix a term during which any inquiry must be carried out.  Before the judge proceeded further, Mr Birts asked the judge whether he was going to permit the prosecution to proceed with an inquiry, because, if so, he (Mr Birts) wished formally to object.  The judge then observed:
“There are two avenues.  Either the prosecution can off their own bat decide to proceed, or I independently can direct the prosecution that they serve a statement under s.11.”
9.	Mr Birts stated that he was asking the judge not so to direct because expectations which were raised that there were would be no such inquiry had been reinforced by the assurance given to the court the previous day that no such proceeding would take place, he said:
“As a matter of legitimate expectation, we would ask that the court should say that the prosecution has had its opportunity to make this application and it is now in a position where it cannot blow and cold, and therefore there should be no direction.”
10.	The judge then asked whether, on the assumption that Mr Birts was correct, he (the judge) did not have a separate right to decide to direct service of a statement under s.11.  Mr Birts then took the point that:
“… you have now pronounced sentence and, as I understand the Act, section 2 … provides that the order can only be made where the defendant has not previously been sentenced or otherwise dealt with in respect of his conviction for the offence.”
That is the point which is now before us.
11.	Argument then followed before the judge upon the wording of s.2 and s.3 of the Act, following which the judge ruled that the inquiry should take place.  In the course of that ruling, he made clear what had been in his mind at the time he proceeded to sentence the defendants.  He said:
“It seemed to me that if there was going to be a question of abuse of process – I do not know whether those actual words were used, I think they were actually – that if I were having to consider the question of abuse of process before either I, in my capacity under s.2(1)(b), or the prosecutor succeeded in his application, then I ought to hear the questions and law on abuse of process.  It certainly was not something I was prepared to do with the defendant standing there waiting there to be sentenced on an important matter.  
The implication I would have thought obvious to everybody was that I would proceed to sentence and that the question of an abuse of process and then the question whether there should in fact be an inquiry under section 2 would be considered at leisure when the defendants knew what was their fate.”
12.	He went on to rule that:
“… section 3 in its various subsections says that … determination may be postponed and sentence passed beforehand.  In my view, even if as a fact the prosecutor had not asked the court to proceed under this section before sentence, and even if as a fact the court had not indicated yea or nay it seems to me that the act still allows that question to be addressed after sentence has been passed, and certainly within twenty-eight days of sentence being passed.  
As a matter of fact, I hold that the words in section 2, subsection (1) had been fulfilled in any event, that before the moment of sentence the prosecutor had asked the court to proceed and that that was the intention of the court.  Therefore, I dismiss this point.”
THE PROVISIONS OF THE 1994 ACT
13.	The relevant provisions of the Act are as follows:
“Confiscation Orders
2.(1)	Subject to subsection (7) below, where a defendant appears before the Crown Court to be sentenced in respect of one or more drug trafficking offences (and has not previously been sentenced or otherwise dealt with in respect of his conviction for the offence or, as the case may be, any of the offences concerned) then-
(a)	if the prosecutor asks the court to proceed under this section, or
(b)	if the court considers that, even though the prosecutor has not asked it to do so, it is appropriate for it to proceed under this section, it shall act as follows.
(2)	The court shall first determine whether the defendant has benefited from drug trafficking.
(3)	…
(4)	If the court determines that the defendant has so benefited, the court shall, before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned, determine in accordance with the section 5 of this Act the amount to be recovered in his case by virtue of this section.
(5)	…
Postponed Determinations
(3)(1)	Where the Crown Court is acting under section 2 of this Act but considers that it requires further information before –
(a)	determining whether the defendant has benefited from drug trafficking or
(b)	determining the amount to be recovered in his case by virtue of that section, it may, for the purpose of enabling that information to be obtained, postpone making the determination for such period as it may specify.
(2)-(6)	……
(7)	Where the court exercises its power under subsection (1) or (4) above, it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the relevant offence or any of the relevant offences.
(8)	Where the court has so proceeded, section 2 of this Act shall have effect as if – 
(a)	in subsection (4), the words “before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned” were omitted;
(b)	…”
THE GROUNDS OF APPEAL
14.	The grounds of appeal and the argument of Mr Johnson for the appellant may be shortly stated.  He points out that the provisions of s.2(1)-(4) echo the provisions of the Act’s predecessor, the Drug Trafficking Offences Act 1986, under which any inquiry and confiscation order had to be made before sentence was passed: see the words within brackets in 2(1) ‘and has not previously been sentenced or otherwise dealt with in respect of his conviction for the offence ..’ and, in 2(4), ‘before sentencing or otherwise dealing with him in respect of the offence..’.  Although, for lack of appropriate information, it will more often than not be impracticable for a Confiscation Order to form part of the ordinary sentencing process, and therefore postponement of a determination under s.2(2) will be necessary, s.3, which provides for the postponement of determinations, is conditional upon the requirement that the court, when acting under s.2 of the Act ‘considers that it requires further information before’ making its determination.  Where the court does so consider, ‘it may nevertheless proceed to sentence …’: see s.3(7).
15.	Thus, submits Mr Johnson, in order to invoke the power to postpone an inquiry, it must be shown that the court is (i) acting under s.2 of the Act with a view to determining whether the defendant has benefited from drug trafficking and (ii) has considered and decided that it requires further information before such determination can proceed.  
16.	Mr Johnson submits that the facts of the case clearly show that the judge had not decided whether or not to act under s.2 of the Act at the time he imposed his sentence, let alone that he required further information in order to do so.  He had not directed his mind to this question.  Such a decision was not implicit or to be assumed because (a) the judge expressly stated in the course of his ruling that he intended to proceed to sentence first, leaving over the question whether there should in fact be an inquiry under s.2 to be considered ‘at leisure’ (see paragraph 11 above); (b) in order to establish a postponement under s.3(1) it is necessary to establish the taking of a positive judicial decision in that respect.  In this respect, Mr Johnson relies upon the words of Judge LJ in the recent decision in R –v- Shevki and Steele C. A. 14th December 2000 (Cases: 200/2948/Y3 & 1999/5880/Z2) at para 26) when he said:
“The court is required to make a positive decision postponing the determination.  It does not follow from the fact that an order has not been made, when it might have been, that the order (sic) must have been postponed, or be deemed to have been postponed.  Mere temporising delay, or inaction, does not amount to postponement of a determination.  In short, following an application from one side or the other, or as a result of the court acting on its own initiative, for the purposes of s.3, a judicial decision is needed, and unless made within the permitted period (whether for postponement, or for an extension in “exceptional circumstances”) the jurisdiction to make the order for postponement lapses.”
See also the decision of this court in R –v- Kelly (2000) 2 Cr App R(S) 129, per Laws LJ at 136.
17.	For the Crown, Mr Convey (who did not appear below) submits as follows:
		(1)	There is nothing in the Act which expressly requires that the court’s 		initial decision to postpone determination be made before sentence is passed.  		Nor, in reviewing the court’s powers of postponement in Shevki and Steele did 		Judge LJ say so.
		(2)	He submits that the court should lean against any such construction, in 		that it would operate to defeat the broad overall aim of the Act which is to 			empower the court both to make, and postpone the making, of a Confiscation 		Order following conviction of a drug trafficking offence: see Shevki and Steele 		at para 20.  He submits that an order for postponement made for the first time 		after sentence has been imposed would not be prejudicial to the defendant or 		contrary to any overriding principles of fairness or justice.  
		(3)	The terms of s.2(1) are mandatory and direct that, if the prosecution 		asks the court to proceed under S.2, it shall act as set out in the succeeding 		sub-sections.  Thus the court must conduct a confiscation inquiry and calculate 		the amount of any Confiscation Order which may be made as result of the 			procedure prescribed by s.2 (c.f. R –v- Stuart and Bonnet (1989) 11 Cr App R 		(S) 89).  On that basis, it is to be assumed for the purposes of s.3(1) that, once 		such a request is made, the court is immediately acting under s.2 and, if it 			proceeds directly to sentence, it is to be taken as postponing the determination 		pursuant to the provisions of s.3(1).
		(4)	Mr Convey points out that, in R –v- Shevki and Steele, the court was 		not directly concerned with the question at issue in this case i.e. whether the 		initial decision to postpone must be made prior to sentence being passed, and 		he submits that any remarks made by the court should be read in that light.
		(5)	In these circumstances, it is submitted that the Crown’s request to 			proceed under s.2(1)(a) and its application to postpone the determination, 			otherwise required to be dealt with prior to sentence under s.2(2), should be 		treated as implicitly granted by the judge prior to sentencing.  The proper 			construction of what happened was simply that the court had decided to 			postpone the determination of the amount of the Confiscation Order, and had 		merely adjourned under its inherent powers the issue of whether or not such a 		determination should be stayed as an abuse of process.  He points out that, in 		the event, the abuse of process argument was not pursued, counsel limiting 		themselves to the submission now made in this court.
DISCUSSION
18.	In our judgment, s.2 and s.3 of the Act lay down a clear and mandatory sequence to be followed in a case such as the present when a defendant appears before the Crown Court to be sentenced in respect of one or more drug trafficking offences, and either the prosecution makes a request within section 2(i)(a), or the court considers it is appropriate to proceed under section 2.  We say mandatory because of the first five words of section 2(2). 
19.	In the interests of clarity we leave out of account for present purposes the provisions of s.2 and s.3 relating to appeals.
20.	S.2(4) requires the determination of the amount to be recovered before sentencing or otherwise dealing with the defendant in respect of the offence.  However, if the Court considers that it requires further information before making either of the determinations referred to in s.3(1)(a) and (b), and if it postpones making the determination for such period as it may specify (see s.3(1)), the court may nevertheless proceed to sentence without making its determination: section 3(7).  Where the court has so proceeded, but not otherwise, s.3(8) modifies s.2(4) appropriately.
21.	In our judgment, the words of s.3(7) and (8) make it clear that it is only if the court has exercised its power under s.3(1) that it may proceed to sentence without making a determination of the amount to be recovered by virtue of s.2.  The word “nevertheless” in s.3(7) seems to us unequivocal.
22.	The exercise by the court of its power under s.3(1) involves the making of a judicial decision.  That decision must be made expressly.  In that respect the statement of Judge LJ in R –v- Shevki and Steele cited at paragraph 16 above puts the matter clearly in words upon which we could not improve.
23.	In a later passage in the judgment in R –v- Shevki and Steele at para 59, Judge LJ said:
“Confiscation orders should normally form part of the ordinary sentencing process.  For lack of appropriate information, this will often be impractical.  If the conditions in s3(1) or s3(4) are satisfied, and within six months of conviction, the court may decide that the determination should be postponed.  Unless the circumstances are exceptional this should not extend beyond six months after conviction.”
24.	Mr Convey relied on that passage as laying down that an order for postponement of a determination may be made for the first time at any time within 6 months of conviction.  We are satisfied that in that passage Judge LJ referred to 6 months after conviction as the time during which a postponement can operate ‘unless the circumstances are exceptional’.  He was not suggesting that the initial order for postponement may be made after sentence.
25.	Mr Convey’s reliance on the fact that the court has a duty to act once the conditions mentioned in s.2(1)(a) or (b) are satisfied, so that the court is thereafter necessarily “acting under section 2” for the purposes of s.3(1), ignores the fact that s.3(1) confers a discretion on the court to postpone making a determination.  It is only if that discretion is exercised, by making an order for the postponement of a determination, that s.3(7) and (8) permit sentence to be passed before the determination is made.  As Judge LJ said, the exercise of that discretion requires a judicial decision.  No particular form of words is required, but the decision to postpone must be made manifest and, in particular, it must specify the period of the postponement, which cannot go beyond 6 months from the date of conviction unless the circumstances are exceptional. 
26.	In this case there was no such decision before sentence was passed.  The judge did not indicate or decide whether or not there would be a determination after sentence.  He intended to decide that subsequently, and he did so.
27.	We have considerable sympathy with the view the judge took.  The broad purpose of the Act is indeed to enable the court to sentence an offender before dealing with the question of determination for the purposes of a Confiscation Order.  In addition, as the single Lord Justice observed in granting leave to appeal, once the abuse of process point had been raised, the judge’s decision to postpone the question of the determination until after sentence was taken out of a sense of fairness and humanity.  Unfortunately, however, we consider that the wording of the Act required a clear indication by the judge of his decision on the question of determination before passing sentence.
CONCLUSION
28.	It follows that the court had no power subsequently to proceed with the making of the confiscation order and it must be quashed.  This appeal therefore succeeds.
29.	The Appellant is entitled to an order for his costs to be paid out of central funds under section 16(4)(c) of the Prosecution of Offences Act 1985. 

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LORD JUSTICE POTTER: In this case the appeal is allowed and the confiscation order quashed for the reasons set out in the judgment now handed down and available for any member of the public or press who wishes to read it.
MR CONVEY: My Lord, I wonder if I could raise two matters?  I appeared for the Crown in the appeal.
      The first matter is a small matter.  I did not appear below and I ask if the court's judgment might reflect that.
LORD JUSTICE POTTER: Do we refer you to at some stage as making some submissions?
MR CONVEY: Paragraph 17, my Lord.
LORD JUSTICE POTTER: Right, in paragraph 17 after "for the Crown, Mr Convey" will be inserted in brackets "(who did not appear below)".  Yes.
MR CONVEY: I am obliged.  More importantly, perhaps, paragraph 19.
LORD JUSTICE POTTER: Yes.
MR CONVEY: The draft judgment appears to be wrongly transcribed from the words "in the interests of clarity  we leave out of account" ‑‑ sorry, the last sentence of paragraph 18, "we say mandatory because of the last five words of section 2(2)".  Might I invite your Lordship to turn to page 6 of your judgment?
LORD JUSTICE POTTER: Paragraph or page?
MR CONVEY: Paragraph.  Paragraph 11, paragraph 13, where your Lordship sets out the provisions of the Act.
LORD JUSTICE POTTER: Paragraph 13.
MR CONVEY: Yes.  Over the page subsection (2) clearly your Lordship was referring to the first five words of that subsection and it has been wrongly transcribed. My Lord, I think the sentence you intended it to reflect was "we say mandatory because of the first five words of section 2(2)".
LORD JUSTICE POTTER: I see.  For the final transcript, paragraph 18, last line but one, delete the word "last" and substitute the word "first".