The central question of law
arising on the appeal before the House is whether the Court of Appeal
acted on the correct legal principle when it quashed two confiscation
orders made by the Crown Court pursuant to the Criminal Justice Act 1988,
as amended by the Proceeds of Crime Act 1995: R v Soneji and Bullen
[2004] 1 Cr App R(S) 219.
1. The Confiscation Regime.
Parliament has firmly adopted the
policy that in the fight against serious crime, apart from ordinary
sentences, a high priority must be given by the courts to the making of
confiscation orders against defendants convicted of serious offences. The
purpose of confiscation proceedings is to recover the financial benefit
that the offender obtained from his criminal conduct. In England and Wales
the confiscation regime was introduced by the Drug Trafficking Offences
Act 1986. It was extended by the Criminal Justice Act 1988 to cover other
indictable offences and specified summary offences. Since its introduction
this legislation has been amended from time to time. The approach
reflected in this legislation has been reinforced by the United Kingdom's
ratification on 28 June 1991 of the United Nations Convention Against
Illicit Traffic in Narcotic Drugs And Psychotropic Substances 1988 and
ratification on 28 September 1992 of the Convention on Laundering, Search,
Seizure and Confiscation of the Proceeds from Crime 1990.
The most recent statute is the
Proceeds of Crime Act 2002, which came into force on 24 March 2003. The
aim of the new statute is to create an effective unified regime of
confiscation law. Given the almost year by year amendment over the last 20
years of sometimes overhasty criminal legislation, and the great
difficulties created for the courts by much of this flood of legislation,
it would be innocent to predict that the 2002 Act has solved the problems
involved in the criminal process of confiscation. On the present appeals
the interpretation of the 2002 Act does not arise for consideration.
Section 14(11) of the 2002 Act, however, is of some historical interest.
It 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."
In the course of moving the Bill in the House of Lords the Lord
Chancellor explained (Hansard, HL Debates, 25 June 2002, col 1241) that
section 14(11) is:
". . . designed to stop confiscation orders from being quashed
merely because some procedural error has taken place in the application
of the postponement procedures. I shall, if I may, provide your
Lordships with a little background on this occasion, as it is directly
relevant to the amendments.
As your Lordships will be aware, the Bill amends the postponement
regime in the existing legislation. . . . It is important to understand,
however, that the basic mechanics of the postponement regime envisaged
by the Bill remain rather similar to those in the existing legislation.
Unfortunately, it is becoming…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.