August EWJ 24 - Flipbook - Page 62
Beyond the Boundaries of Time –
Haden, Luxton and Section 14 of POCA
Grace Khaile considers the Court of Appeal’s latest judgments on delay in confiscation
proceedings. The two-year limit in section 14(5) of the Proceeds of Crime Act after conviction
for the determination of confiscation proceedings appears to be no more than notional.
On 16th April 2024 the Court of Appeal handed
down its judgment in R v Haden, Smith, Blair & Rohelsaar and
Mann [2024] EWCA Crim 344 and R v Luxton [2024]
EWCA Crim 340, allowing five appeals. Four of the
appeals were considered in the main judgment and
the fifth appeal was considered in a separate judgment
as it included three further separate issues for the
Court to consider.
helsaar pleaded guilty to permitting premises to be
used for the production of a controlled drug, namely
cannabis, contrary to s8 of the Misuse Drugs Act 1971.
On 7th January 2022 Mr Blair was sentenced to 22
months’ imprisonment suspended for 24 months and
Ms Rohelsaar to a 12-month community order. On 1st
December 2022 the judge refused to make confiscation orders in both cases. At the hearing the judge refused to postpone confiscation proceedings in Mr
Blair’s case as the application was made outside the
two-year permitted period. In respect of Ms Rohelsaar, confiscation proceedings had been withdrawn
after Blair asserted a particular property was his, but
reinstated when he changed his position and asserted
that she had an interest in the property. The postponement application was made in time, but the
judge focused on the time which had elapsed between
the service of Mr Blair’s s17 notice (July) in which the
change of position was notified, and a hearing in December where the prosecution informed the court
that it intended to reinstate the confiscation proceedings against Ms Rohelsaar. The judge said that “this
plainly held up proceedings considerably” and that
there were exceptional circumstances for the postponement application not to be granted (although he
did not identify what they were).
Background Facts
The appeals from the Crown Court in each case were
lodged by the Crown against refusals by judges to
make confiscation orders against respondents because
of a failure to complete the proceedings within the
permitted time provided by s14 of the Proceeds of
Crime Act 2002. The cases were unrelated to each
other but were considered together for judgment
as they referred to the same core issue. Each had
different factual issues, summarised below.
R v Mark Haden
The defendant pleaded guilty to possession of a
controlled drug of class A with intent to supply contrary to s5(3) of the Misuse of Drugs Act 1971 on 13th
May 2021 and was committed to the Crown Court for
sentence. He was sentenced on 28th July 2021 and
the court decided to proceed under s6 of the 2002 Act
and set a timetable. Despite attempts to get the matter
listed before the end of the permitted period (12th
May 2023), the prosecution was unable to do so due
to listing issues. The matter was listed on 27th June
2023 where an application to extend the permitted
period was made and the judge refused to extend the
postponement period saying that he was not satisfied
that issues with listing the matter constituted exceptional circumstances. The Court of Appeal found that
the judge was wrong to find there were no exceptional
circumstances as the prosecution had repeatedly
asked the court to do what was required but the court
failed to act.
R v Jake Mann, Kerry Long, Christopher Cartwright,
Stephen Tootell, spencer Watkins & James Will
The judge at the Crown Court refused to extend the
permitted period for the making a confiscation order.
The case involving 12 defendants was heavily delayed
by the fallout from the Covid-19 backlog, and the confiscation proceedings concerned six defendants who
pleaded guilty. The confiscation proceedings were not
commenced until after the expiry of the two-year
period from the guilty pleas, although just prior to
sentence.
R v Bradley Luxton [2024] EWCA Crim 340
This was the fifth case in the series of prosecution appeals under s31 of the Proceeds of Crime Act 2002,
and was the subject of a separate judgment. Judgment
was given because it raised three further issues beyond
issues in the main judgment. The defendant pleaded
guilty to six counts of conspiracy to supply controlled
drugs and he was given a total sentence of 16 years’
imprisonment on 6th August 2021. Confiscation
proceedings were indicated at sentence but at the
contested hearing the prosecution withdrew their
application as no record could be found of the prosecution making an application to extend the permitted period. The three supplementary issues were:
whether the ‘slip rule’ (section 385 of the Sentencing
R v Chadley Smith
On 18th February 2020, Mr Smith pleaded guilty (on
a basis) to conspiracy to produce a controlled drug of
class B, Cannabis, contrary to s1 (1) of the Criminal
Law Act 1977. The prosecution made an application
to postpone the relevant time periods for a confiscation order which was refused by the judge.
R v Jason Blair and Piret Rohelsaar
On 8th September 2020, in the Crown Court
at Cardiff, Mr Blair pleaded guilty to producing a
controlled drug of Class B, namely cannabis, contrary
to s4(2)(a) of the Misuse of Drugs Act 1971. Ms Ro-
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