(back to preceding text)

    18.  There is also subsequent House of Lords authority to similar effect: Attorney General's Reference (No 3 of 1999) [2001] 2 AC 91. In imperative language Parliament had provided that if a defendant is cleared of an offence fingerprints or samples taken from him in the investigation of the offence must be destroyed. There was a breach of the duty. A DNA profile obtained from swabs taken from a rape victim was found to match that of the defendant. He was charged and convicted. The Court of Appeal quashed the conviction. The House of Lords reversed the decision of the Court of Appeal. The House declined to apply the mandatory/directory distinction. Instead the House adopted the reasoning of Lord Hailsham, concentrated on the consequence of non-compliance, and addressed the question what in the light of the consequences must Parliament be taken to have been intended. The House held that the Parliamentary intent would have been inimical to holding that that the prosecution was invalid: see my judgment, at pp 117-118; Lord Cooke of Thorndon, at pp 120-121; and Lord Clyde, at p 121. Lord Hobhouse of Woodborough agreed, at pp 125-126. Lord Hutton concurred in the result. This decision involved a rejection of the mandatory/directory distinction in the face of explicit imperative language. It is a strong decision.

    19.  Apart from these three cases which applied Lord Hailsham's dictum, it is to be noted that the Court of Appeal has adopted the same approach on a number of occasions: R v Kensington and Chelsea Royal London Borough Council Ex p Hammell [1989] QB 518; Crédit Suisse v Allerdale Borough Council [1997] QB 306; R v Secretary of State for the Home Department, Ex p Jeyeanthan [2000] 1 WLR 354.

    20.  Moreover, in the courts of New Zealand, Australia and Canada parallel developments took place. In New Zealand Institute of Agriculture Science Inc v Ellesmere County [1976] 1 NZLR 630. Cooke J (subsequently Lord Cooke of Thorndon) speaking for the court said, at p 636:

"Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and the degree and seriousness of the non-compliance."

    This observation was subsequently cited in the Charles case in the Privy Council to which I have referred.

    21.  In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the Australian High Court addressed the same problem. In the joint judgment of McHugh, Gummow, Kirby and Hayne JJ the court concluded, at para 93:

"In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with a statutory command and those which have not They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute.'"

This reasoning contains an improved analytical framework for examining such questions. In the evolution of this corner of the law in the common law world the decision in Project Blue Sky is most valuable.

    22.  In Canada there have been developments along similar lines. The starting point is British Columbia (Attorney General) v Canada (Attorney General); An Act respecting the Vancouver Island Railway (Re) [1994] 2 SCR 41. The mandatory/directory distinction was strongly criticized. For the majority Iacobucci J observed: "courts tend to ask, simply: would it be seriously inconvenient to regard the performance of some statutory direction as an imperative?" My understanding is that, seven of the Supreme Court Justices were agreed on this point, with Lamer CJ and McLachlin J dissenting. In Society Promoting Environmental Conservation v Canada (Attorney-General) (2003) 228 DLR (4th) 693 this development was taken a stage further by the Federal Court of Appeal. Relying on Lord Hailsham's dictum, Evans JA gave the main judgment for the court with Strayer JA concurring in the result and reasoning on this point, at p 710, para 35:

"(iv) . . . the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, including the frustration of the purposes of the legislation, public expense and hardship to third parties, the less likely it is that a court will conclude that legislative intent is best implemented by a declaration of invalidity."

I regard the developments in Canada as very similar to those in New Zealand and Australia.

    23.  Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, as held in Attorney General's Reference (No 3 of 1999), the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction. In my view it follows that the approach of the Court of Appeal was incorrect.

VIII. Application of the Test Enunciated in Attorney General's Reference (No 3 of 1999).

    24.  It remains to address the point of statutory interpretation in accordance with the test as I have outlined it. On behalf of the two accused counsel submitted that, given the criminal law context, a strict approach to construction of section 72A of the 1988 statute should be adopted. Bearing in mind that one is not dealing with the definition of crimes, but with the process of making confiscation orders, I would reject this approach. The context requires a purposive interpretation: Sir Rupert Cross, Statutory Interpretation, 3rd ed (1995), 172-175. Secondly, counsel argued that such an interpretation would render wholly ineffective the Parliamentary intent of providing for a specific time limit. I would not accept that this is correct. At the very least the courts can, where necessary, vindicate the scheme adopted by Parliament by the abuse of process jurisdiction and perhaps in other ways. Thirdly, counsel for the accused relied on an alleged injustice caused to the accused by the delay of the confiscation procedures. In my view this argument was overstated. The prejudice to the two accused was not significant. It is also decisively outweighed by the countervailing public interest in not allowing a convicted offender to escape confiscation for what were no more than bona fide errors in the judicial process.

    25.  In my view an objective appraisal of the intent, which must be imputed to Parliament, points against total invalidity of the confiscation orders.

    26.  For these reasons I would allow the appeal of the Crown.

IX. Two Remaining Issues.

    27.  For the sake of completeness I deal briefly with two remaining issues which were debated at the oral hearing. First, lower courts have accepted that, in parallel to the statutory confiscation postponement proceedings, there exists a common law jurisdiction to adjourn confiscation proceedings. In my view section 72(A)(3) rules out such co-existing powers. I would rule that there is no such common law jurisdiction.

    28.  Secondly, there were competing arguments about whether the requirement of "exceptional circumstances" in section 72(A)(3) should be strictly construed. In lower courts a very strict approach has sometimes prevailed. An expression such as "exceptional circumstances" must take its colour from the setting in which it appears. Bearing in mind the context I would not adopt a very strict approach to the meaning of exceptional circumstances.

X. Disposal.

    29.  For these reasons, as well as the reasons given by my noble and learned friends Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood, I would allow the appeal of the Crown.

My Lords,

    30.  If your young daughter wants to go out with friends for the evening and you agree, but tell her that she must be home by eleven o'clock, she is under a duty to return by then. But this does not mean that her duty is to return by then or not at all. Rather, even if she fails to meet your deadline, she still remains under a duty to return home. On the other hand, if you contract with a conjuror to perform at your daughter's birthday party, you want the conjuror and his tricks only for the party. His duty is accordingly limited to performing at the party held on your daughter's birthday and, if he fails to turn up, he cannot discharge the duty later. In the present cases Parliament has placed the court under a duty, where appropriate, to make a confiscation order before it sentences an offender. If the court fails to do so and proceeds to sentence the offender first, does Parliament intend that - like your daughter - the court should remain under a duty to make the order? Or does Parliament intend that the duty should be limited so that - like the conjuror - the court can perform it only before sentencing?

    31.  I put the issue in terms of the duty of the court, rather than - as counsel presented their arguments - in terms of its power or jurisdiction, since the House is interpreting a statute and it seems best to stick closely to the language which Parliament has used. So far as material, section 71(1) of the Criminal Justice Act 1988, as amended, provides:

"(1)  Where an offender is convicted, in any proceedings before the Crown Court or a magistrates' court, of an offence of a relevant description, it shall be the duty of the court -

(a)  if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or

(b)  if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed,

to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.

(1A)  The court shall first determine whether the offender has benefited from any relevant criminal conduct.

(1B)  Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then -

(a)  determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and

(b)  make an order under this section ordering the offender to pay that amount."

    32.  When section 71(1) is engaged, it imposes a duty on the court to act as required by subsections (1A) and (1B) and, where appropriate, to make a confiscation order "before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct." This duty is to be contrasted with the mere power, which the court has under subsection (1C), to make such an order if it is satisfied that a victim of the crime intends to take civil proceedings against the defendant. Section 71(1) requires the court to take these steps before proceeding to sentence. But, in practice, the Crown may not have the necessary financial information readily to hand immediately after the defendant is convicted, or else the defendant may challenge some of it and there may need to be an inquiry into the facts. All of this takes time and so, if the confiscation order has to be made before any sentence can be imposed, the defendant may be left in an uncomfortable limbo. From every point of view, there will often be much to be said for the court proceeding to sentence before deciding about the confiscation order. The defendant can then get on with serving his sentence. Parliament recognised this and so, to allow the court to sentence first, by section 28 of the Criminal Justice Act 1993 it inserted section 72A into the 1988 Act. As further amended and so far as material, section 72A provides:

"(1)  Where a court is acting under section 71 above but considers that it requires further information before -

(a)  determining whether the defendant has benefited from any relevant criminal conduct; or

...

(b)  determining the amount to be recovered in his case …,

it may, for the purpose of enabling that information to be obtained, postpone making that determination for such period as it may specify.

(2)  More than one postponement may be made under subsection (1) above in relation to the same case.

(3)  Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above which -

(a)  by itself; or

(b)  where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods,

exceeds six months beginning with the date of conviction.

...

(5)  A postponement or extension under subsection (1) ... above may be made—

(a)  on application by the defendant or the prosecutor; or

(b)  by the court of its own motion.

...

(7)  Where the court exercises its power under subsection (1) ... above, it may nevertheless proceed to sentence, or otherwise deal with, the defendant in respect of the offence or any of the offences concerned.

(8)  Where the court has so proceeded -

(a)  subsection (1) of section 71 above shall have effect as if the words from 'before sentencing' onwards were omitted....

(9)  In sentencing, or otherwise dealing with, the defendant in respect of the offence, or any of the offences, concerned at any time during the specified period, the court shall not -

(a)  impose any fine on him; or

(b)  make any such order as is mentioned in section 72(5)(b) or (c) above.

(9A)  Where the court has sentenced the defendant under subsection (7) above during the specified period it may, after the end of that period, vary the sentence by imposing a fine or making any such order as is mentioned in section 72(5)(b) or (c) above so long as it does so within a period corresponding to that allowed by section 155(1) or (2) of the Powers of Criminal Courts (Sentencing) Act 2000 (time allowed for varying a sentence) but beginning with the end of the specified period."

Where the court considers that it requires further information before making a determination, under subsection (1) it may, for the purpose of enabling that information to be obtained, postpone making the determination. But, unless in exceptional circumstances, the period of postponement must not exceed six months from the date of the defendant's conviction. If the court exercises this power and postpones the determination, under subsection (7) the court may nevertheless proceed to sentence the defendant and, where it does so, under subsection (8) section 71(1) has effect as if the words requiring the court to act before sentencing were omitted. Put shortly, if the court postpones the determination of a matter relating to the confiscation order, it can still sentence the defendant and, if it does so, the words in section 71(1) which require the confiscation order to be made first are deemed to be omitted.

    33.  As my noble and learned friend, Lord Steyn, has explained, in the present case it is said that, in good faith, the court postponed a relevant determination beyond six months from the date of Mr Soneji and Mr Bullen's convictions, even though there were no exceptional circumstances to justify this. I respectfully agree with him that the court had no common law power to postpone the determination to obtain information. I also agree, however, that "exceptional circumstances" in section 72A(3) should not be interpreted too narrowly. The court must comply with the six-month requirement wherever reasonably possible, even if this means that its timetable has to be adjusted accordingly. Nevertheless, I would certainly not rule out the possibility that some listing difficulties could amount to "exceptional circumstances". But the judge must look into the position and see what can and cannot be done. Here the Court of Appeal held that he had failed to do so and that, accordingly, the court had not been entitled to postpone the determinations beyond six months after the defendants' convictions. The Court of Appeal further held that the resulting confiscation orders should be quashed. Therefore, the principal issue raised by the Crown's appeal in these cases is whether, assuming that the judge had not been entitled to postpone the determinations beyond the six-month limit, the confiscation orders were invalid.

    34.  My Lords, in approaching this issue, I begin by noticing that, faced with the situation where undesirable delays in sentencing were occurring because of the need to complete the confiscation procedure, Parliament introduced section 72A. In itself, this indicates that, in Parliament's view, the duty to make a confiscation order should not be limited to cases where the order can be made before sentence is passed. Of course, Parliament envisages that the court will make the order first unless it has exercised its power under section 72A(1) to postpone the relevant determination. But it is of some significance that, on a broad view, Parliament sees it as more important that a confiscation order should be made than that it should be made before the defendant is sentenced.

    35.  Undoubtedly, section 71(1) is the key provision of this Part of the statute. It lays down the primary rule that the court should make any confiscation order before sentencing the defendant. But one must ask why. Why, in Parliament's view, should the sequence be confiscation order followed by sentence? The answer is that in the legislative scheme confiscation orders are to have primacy over fines and other financial disposals, which must be tailored accordingly. This is laid down in section 72(5). It provides that, where a court makes a confiscation order, it shall be its duty to take account of the order before imposing any fine or making any other financial order against the defendant. Therefore in cases where the judge may be considering whether to impose a fine, either as the entire disposal or as one element in the sentence, he will not be able to decide on the appropriate sentence unless he knows whether the defendant is subject to a confiscation order and, if so, for what amount. So the confiscation order is to be considered first.

    36.  It follows that the purpose behind the sequence in section 71(1) is to make the sentencing process as effective as possible in a system in which confiscation orders have primacy. To help achieve that purpose, the confiscation order procedure should come first. Or, to put it the other way round, what matters is that sentencing should take place after the court decides on any confiscation order. Of course, as Parliament recognised by enacting section 72A, the idea can be pushed too far since it makes little sense to insist on this rigid sequence where there is no prospect of the court imposing a financial penalty. Hence the power for the court to invert the sequence and to sentence the defendant first. But the court can exercise that power even where it contemplates including a fine or other financial order in the sentence. In that kind of case section 72A(9) prohibits the court from imposing the fine or making the order during the period of postponement. After that, however, when it is known whether the defendant is subject to a confiscation order and, if so, for how much, under subsection (9A) the court can vary the sentence by imposing the fine or making the order. In this way Parliament is careful to maintain the appropriate sequence and to ensure that the court can take account of any confiscation order when deciding on the amount of the penalty - as section 72(5) requires. Thus the purpose behind the sequence laid down in section 71(1) runs, unmistakably, through the scheme of sections 71 and 72A.

    37.  In the present cases, both Mr Soneji and Mr Bullen, very understandably, wanted to be sentenced on 18 August 2000 rather than wait until the confiscation order matters could be sorted out. In that way they knew as soon as possible what period of imprisonment they were to serve and they could start their sentence. Each of them appealed successfully against the length of the prison sentence imposed on him. But they do not suggest that those sentences pronounced by the court on 18 August 2000, long before the confiscation orders were made on 7 February 2002, were invalid. Nor do they suggest that the reduced sentences which the Court of Appeal substituted on 24 October 2001 - again, months before the confiscation orders were made - are invalid.

    38.  The position of the respondents therefore appears to be that, since there was no valid postponement under section 72A(1), the confiscation orders are invalid because they were made after the prison sentences were imposed, but the prison sentences are valid even though they were pronounced before the confiscation orders were made. Prima facie, at least, that is an incoherent position: either both should be invalid, because the provisions of section 71(1) have not been observed, or else both should be valid despite the failure to observe those provisions. In my view both are valid.

    39.  Since Parliament's purpose in prescribing the sequence in section 71(1) was to ensure that the sentencing process was effective, it is the fact that the respondents were sentenced before the confiscation orders were made that constitutes the real breach of the intendment of the section. And, indeed, there would have been a breach of the section if the sentences had been imposed first, even if, on due consideration, the court had decided, in terms of section 71(1B), that the defendants had not benefited from their criminal conduct and so no confiscation order should be made. Of course, the judge did actually make confiscation orders in these cases. But the respondents do not suggest that the fact that they were sentenced before the confiscation orders were made had any bearing on the judge's decision to impose the periods of imprisonment that he did - or, for that matter, on the Court of Appeal's decision to impose the lesser periods of imprisonment. In fact, they do not suggest that the breach of the section interfered in any way with the sentencing procedure. Nor is there any reason why it should have done since both courts imposed custodial rather than financial penalties. This was therefore exactly the kind of case where it made sense for sentencing to take place, as it did, ahead of the confiscation order. In that situation, where the breach of the requirements of section 71(1) caused no prejudice of any kind to the respondents in respect of their sentences, I am satisfied that Parliament would not have intended that the sentences passed by the judge should be invalid.

    40.  A fortiori, Parliament would not have intended that the confiscation orders made by the judge should be invalid merely because the sequence required by section 71(1) was not followed. The purpose of that sequence is to ensure the effectiveness of the sentencing procedure, not the effectiveness of the procedure for making a confiscation order. Failure to observe it might therefore, conceivably, have been a reason why Parliament would have intended a sentence to be invalid. But, given the purpose of the sequence, there is no good reason to suppose that Parliament would have intended that the court's duty to consider making a confiscation order under section 71(1) should be limited so that the court could no longer discharge it if, with his consent, the defendant had been sentenced first. Similarly, it is hard to suppose that Parliament would have intended that a confiscation order should be invalid merely because it was made in those circumstances.

    41.  In the present case the reason why the postponement under section 72A(1) is said to have been invalid is because the period specified took the determination beyond the six-month period in circumstances which were not exceptional. Strictly, the six-month period in section 72A(3) relates to the postponement of a determination in terms of section 71(1A) or (1B)(a), rather than to the postponement of the making of an order under section 71(1B)(b). But, in practice, a court will make an order once it has determined the amount to be recovered. So, at least in the case of a postponement under section 72A(1)(c), the six-month limit means that, unless there are exceptional circumstances, any confiscation order should be made, at the latest, about six months after conviction. That is a protection which Parliament has built into the legislation. But it is a protection for the public interest represented by the prosecution, as well as for the defendant's interest, since the time-limit applies where the court considers it requires further information, irrespective of whether the information is designed to clarify a matter that is favourable to the Crown or to the defence. Presumably, Parliament was concerned that, in the absence of a time-limit, matters might tend to drift once the sentencing was over.

    42.  In the present cases, the confiscation orders were made not much less than two years after the respondents' convictions. It may be that, if actings or failures on the part of the prosecution or the court authorities were to lead to a delay of more than six months, this might, depending on the circumstances, amount to an abuse of process which would make it unfair and inconsistent with the spirit of the Act for the court to make a confiscation order. But, here, about six months of the delay were due to the need for the court to resolve points, raised by the respondents, about its jurisdiction to make the orders. Nor is there any suggestion that the prosecution or court authorities were deliberately dragging their feet or otherwise acting in bad faith. In these circumstances I am satisfied that the delay in making the orders does not affect their validity.