No: 200401593/A1 
Neutral Citation Number: [2004] EWCA Crim 2801
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Friday, 22nd October 2004
 
B E F O R E:

THE VICE PRESIDENT 
(LORD JUSTICE ROSE)
MR JUSTICE RICHARDS 
 
MR JUSTICE BEAN 
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R E G I N A 

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MOHAMMED ASLAM
 
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MR D COX appeared on behalf of the APPELLANT
MR R D'CRUZ appeared on behalf of the CROWN
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J U D G M E N T
1.	MR JUSTICE BEAN:  This is an appeal against a confiscation order by leave of the Single Judge.  On 29th April 2003 at Stratford Magistrates' Court the appellant pleaded guilty to 24 offences of dishonesty and asked for a further 14 offences to be taken into consideration.  On 30th May 2003, in the Crown Court at Snaresbrook, he was sentenced by Mr Recorder Lowe QC to a total of 18 months' imprisonment. There is no appeal against that decision.
2.	The Crown initiated confiscation proceedings which, after some delay, came before His Honour Judge Birtles on 7th January 2004.  The Crown had, in the usual way, served a schedule detailing the matters in respect of which they sought confiscation.  One of these, count 1 on the indictment, related to an offence committed which had been committed prior to 1st November 1995.  Similarly, one of the offences taken into consideration occurred before that date.  1st November 1995 is of significance since it was the date on which the relevant provisions of the Proceeds of Crime Act 1995 came into force.  The Crown were seeking to proceed under that Act.  The previous legislation was the Criminal Justice Act 1988 as amended by the Criminal Justice Act 1993.
3.	On 7th January 2004 the defence took the point which is the subject of this appeal, namely that because the confiscation schedule included one count and one offence to be taken into consideration, each of which pre- dated the commencement of the 1995 Act, the court had no jurisdiction to continue with the confiscation proceedings brought under that Act.  The response of the Crown, after reflecting on the matter, was to abandon reliance on the count and the offence taken into consideration which occurred before 1st November 1995.
4.	The defence submitted that this manoeuvre failed to achieve its purpose and that the confiscation proceedings remained fatally flawed.  Judge Birtles reserved judgment and in a careful written decision, to which we would pay tribute, he rejected the defence submissions. He accordingly made a confiscation order under the 1995 Act in the sum of £25,000 with a term of imprisonment of 9 months, consecutive to the earlier sentences, in default of payment. 
5.	It should be noted that if the offending count 1 had remained in play, the benefit allegedly received by the defendant, would, on the Crown's case, have been increased by £35,000; on the other hand, under the pre- 1995 legislation some £7,000 would have had to be deducted from the amount of the confiscation order since it related to a "course of conduct" covered neither by the convictions nor by the offences taken into consideration.  The "course of conduct" confiscation provisions were first introduced by section 2 of the 1995 Act, creating a new section 72AA of the Criminal Justice Act 1988.
6.	It is possible to summarise the facts of the offences quite briefly, since they do not affect the jurisdiction point which is before us. The appellant produced two forged documents, one a death certificate purporting to show his father was dead, and one a letter purportedly from a doctor saying he was ill, in response to queries from people who ran the medical course he was attending. He stole a quantity of stationery and cleaning products from a hospital where he worked, and also stole a computer from the same hospital. He used his computer at work to disguise the origin of orders he was making for goods with stolen credit card details to arrange for goods to be delivered at a number of addresses. He was also falsely claiming certain social security benefits.
7.	Section 1 of the 1995 Act amended the law relating to confiscation orders in a number of respects, for example by imposing a duty on the court to conduct confiscation proceedings where it considered that to be appropriate even though the prosecution had not served written notice of their intention to do so.  Section 16(5) of the 1995 is as follows: 
"Section 1 above shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence which was committed before the commencement of that Section." 
If section 1 of the 1995 Act did not apply in the present case, it would follow that confiscation proceedings could only have been brought under the earlier statute.
8.	The meaning of section 16(5) was considered by this Court, specially constituted with five judges, in R v Simpson [2004] QB 118, upon which Mr Cox, appearing for the appellant, strongly relies. Simpson pleaded guilty to six offences arising from a value added tax fraud.  He was sentenced to 30 months' imprisonment and a confiscation order was made against him.  The Crown failed to serve a properly constituted notice complying with section 72 of the 1988 Act as amended in 1993.  That did not matter if the 1995 Act applied, since under section 1(2) of that Act the court could proceed of its own motion.
9.	It was argued on Simpson's behalf that one count (count 6) to which he had pleaded guilty concerned facts which took place a fortnight before 1st November 1995.  Accordingly, it was argued that section 16(5) had the effect that the 1995 amendments did not apply and the failure to serve a proper notice was fatal to the confiscation order, even though "count 6 was not a count on which the confiscation order was based" (paragraph 15 of the judgment).
10.	The court rejected that submission. It noted that the submission, if correct, would have the curious result that an acquittal on count 6 would have left the Crown free to seek a confiscation order under the 1995 Act in respect of the remaining counts, whereas the conviction on count 6, even though irrelevant to the confiscation order, would have rendered the confiscation proceedings under the 1995 Act a nullity. The court held that section 16(5) was to be interpreted as though it read: 
"Section 1 above shall not apply in the case of any proceedings against any person where that person is convicted in those proceedings of an offence in respect of which a confiscation order is or could be sought, which was committed before the commencement of that section." 
The words "in respect of which a confiscation order is or could be sought" were apparently suggested by Mr David Barnard, counsel for the prosecution, in his skeleton argument.  No confiscation order was apparently sought, or at least made, in respect of count 6.  But so far as we can see a confiscation order could have been sought in respect of that count since that was simply one of a number of VAT offences before the court (see paragraph 2 of the judgment).
11.	The legislative purpose of section 16(5), as it seem to us, was to prevent the Crown from dividing convictions against a defendant in one set of proceedings into pre- and post- 1st November 1995 matters and then taking confiscation proceedings (concurrently or consecutively) under both statutes.  So if at the time the judge is asked to make a confiscation order under the 1995 Act on a number of counts there remains a pre- commencement count on which the Crown is seeking, or could still seek, a confiscation order under the 1988 Act as amended in 1993, there is no jurisdiction to make an order under the 1995 Act.  However, if the pre-  commencement count is one which could not be the basis of confiscation proceedings, there is no obstacle to using the 1995 Act regime. Similarly if (as in this case) the Crown has expressly abandoned any reliance on the pre- commencement count for the purposes of a confiscation order, the fact that it could have sought such an order in respect of that count seems to us entirely immaterial.  In such a case also, in our judgment, there is no obstacle to using in the 1995 Act regime in respect of the post- commencement counts. We do not understand Simpson to require a contrary conclusion. 
12.	We agree with the observations of this Court in R v Sekhon [2003] 1 WLR 1655: 
"28 ...we suggest that it would not have been the intention of Parliament to exclude the jurisdiction of the court in relation to the making of confiscation orders because of procedural defects of a technical nature that caused no injustice to the defendant.  In this context it is interesting to note that certainly this is not Parliament's intention now. The most recent legislation in this area is the Proceeds of Crime Act 2002. Section 14(11) of that Act provides: '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.'
29 We would expect a procedural failure only to result in a lack of jurisdiction if this was necessary to ensure that the criminal justice system served the interests of justice and thus the public or where there was at least a real possibility of the defendant suffering prejudice as a consequence of the procedural failure."
13.	The other aspect of section 16(5) of the 1995 Act as interpreted in Simpson is that a confiscation order cannot be made under that Act if the defendant is convicted in those proceedings of a pre- commencement offence in respect of which a confiscation order is sought.  Here, as Mr Cox points out in his able argument on behalf of the appellant, a confiscation order was sought in respect of the offending count until he raised the section 16(5) issue at the outset of the confiscation hearing before Judge Birtles, at which point reliance on that count was abandoned by the Crown.
14.	As to that, we interpret the phrase "in respect of which a confiscation order is sought" from the judgment in Simpson as referring to a case where the prosecution maintain their reliance on the count in question at the substantive hearing of the application for a confiscation order.  We agree with the learned judge that the abandonment of confiscation proceedings in respect of one count at that stage is analogous to the Crown offering no evidence on one count of an indictment at the beginning of a trial.  We cannot agree with Mr Cox that this abandonment was an abuse of process. Conversely, we accept the submission of Mr D'Cruz that it is for the Crown to decide on the counts in respect of which it wishes to institute and maintain confiscation proceedings.
15.	For the sake of completeness we should mention the one offence taken into consideration which antedated 1st November 1995.  Given that section 16(5) refers to convictions, we doubt whether an offence taken into consideration brings it into play at all.  However, it is unnecessary to decide the point in this case, since if section 16(5) does apply to the offence taken into consideration our decision as to the proper interpretation of that section in relation to count 1 plainly applies to the matter taken into consideration as well.
16.	Accordingly, in our judgment, the learned judge was right to permit the prosecution to proceed under the 1995 Act.
17.	Mr Cox submitted, as a fall back position, even if the Crown was so entitled, it would be wrong to permit a confiscation order in respect of the "course of conduct" which represents £6997.75 of the total of £25,000. But we consider that his argument on jurisdiction is, as he submitted to the learned judge, an all- or- nothing argument.  If the Crown was entitled to proceed under the 1995 Act, it was entitled to rely on the appellant's course of conduct in so far as it occurred after 1st November 1995, and thus the amount of the order was properly fixed at £25,000.
18.	For these reasons we dismiss the appeal.
19.	MR COX:  I make an oral application for leave to appeal.
20.	THE VICE PRESIDENT:  You first of all need us to certify a question of general public importance for the consideration of the House of Lords.
21.	MR COX:  I do my Lord. One of the difficulties was that Mr D'Cruz was going to be here, a matter we discussed after the last hearing because-  
22.	THE VICE PRESIDENT:  Have you got a draft question?
23.	MR COX:  I have not. We were going to hear what your Lordships said and ask your Lordships for some time to draft a question together.
24.	THE VICE PRESIDENT:  Probably the most convenient course, Mr Cox, is if you will submit the question in writing, preferably within the next 7 days whilst it will be feasible for all of us to look at it.  You actually I think have 14 days but it would help if it was within seven days.  If we are minded to certify we shall say so; if we are not, we shall say so. If we say we are not minded to certify, you will probably be given an opportunity for brief oral argument.  I do not encourage you to submit a question because I have indicated, bearing in mind we are dealing with transitional provisions, it has to be a point of general public importance.  But, with those observations in mind, proceed as you wish.