David Frederic BULLEN and Kamlesh Kumar SONEJI v the United Kingdom

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Application no. 3383/06
by David Frederic BULLEN and Kamlesh Kumar SONEJI
against the United Kingdom
lodged on 19 January 2006

The applicants, Mr David Frederick Bullen who was born in 1946 and Kamlesh Kumar Soneji are British nationals and live in London. They are represented before the Court by Mr N. Seeley of Stanley Tee Solicitors, a lawyer practising in Bishop's Stortford, Hertfordshire.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 24 March 2000, the second applicant pleaded guilty at a Crown Court to conspiracy to convert property and to remove it from the jurisdiction knowing or suspecting that it represented the proceeds of criminal conduct, contrary to section 1 of the Criminal Law Act 1977.

On 21 June 2000 the prosecution served notice under section 71(1)(a) of the Criminal Justice Act 1988 (CJA 1988), as amended by the Proceeds of Crime Act 1995, indicating an intention to seek confiscation orders (which provide for the recovery of the proceeds of criminal conduct).

On 18 August 2000 the second applicant was sentenced to four and a half years' imprisonment and the first applicant was sentenced to six years' imprisonment. Prior to sentencing the confiscation hearing was formally postponed until after the passing of sentence and was fixed for 30 October 2000 (outside the six-month period provided in section 72A of the CJA 1988, which requires that, in the event that further information is needed, a confiscation order be imposed within six months after the date of conviction unless exceptional circumstances have been identified). No enquiry was made of the applicants either as to the postponement or as to the fixing of the date of 30 October 2000.

On 30 October 2000 the prosecution requested a further postponement until a date in the new year. The applicants then objected to the confiscation proceedings on the basis that no proper application had been made within six months.

On 3 November 2000 the Crown Court judge explained that though it was plain by 18 August 2000 that more information was needed in order to enable the confiscation hearing to proceed, the eventual postponement was due to a listing problem and that “sadly listing problems are not exceptional circumstances”. The judge went on to find that it was part of the court's inherent powers to adjourn the confiscation hearing until 30 October 2000 and that in the circumstances the order was just and fair.

On 24 October 2001 the Court of Appeal reduced the second applicant's sentence to three and a half years and the first applicant's sentence to five years following their appeals against sentence.

On 8 March 2001 the same Crown Court judge (following the Court of Appeal's decision in R v Steele and Shevki (2001) 2 Cr App R (s) 40, which found that though adjournments beyond the period prescribed by statute should be avoided, factors such as the unavailability of the judge would not deprive a subsequent order for confiscation of its validity) held that that it was within the Crown Court's common law power to postpone proceedings due to the unavailability of a judge.

On 28 January 2002 the Central Criminal Court imposed a confiscation order on the second applicant in the amount of GBP 75,350, to be paid within 18 months of the resolution of any appeal to the Court of Appeal, with a consecutive term of 12 months' imprisonment to be served in default. This order was varied on 7 February 2002 to payment of GBP 30,284 with 9 months imprisonment in default.

On 7 February 2002 the Central Criminal Court imposed a confiscation order on the first applicant in the sum of GBP 375,000, to be paid within 18 months of the resolution of any appeal to the Court of Appeal, with a consecutive term of 21 months' imprisonment to be served in default.

Both applicants appealed to the Court of Appeal against the imposition of their respective confiscation orders together with the sentences of imprisonment in default of payment. Their grounds of appeal were the following: (i) the Crown Court had no jurisdiction to make the confiscation orders because of the lapse of the six months period under section 72A (3) of the CJA 1988; (ii) the Crown Court had not considered within six months from the date of the conviction whether exceptional circumstances existed and thus there could be no extension of the six month statutory time-limit; and (iii) domestic law did not provide for retrospective extensions of the statutory time-limit once the six month period had expired.

On 20 June 2003 the Court of Appeal allowed the applicants' appeals and quashed the confiscation orders and sentences of imprisonment in default on the basis that the Crown Court judge had no jurisdiction to impose the confiscation orders under the 1988 Act, as they had been made more than six months after the date of conviction and the judge had failed to consider or make a finding of exceptional circumstances justifying postponement, as required by statute and under common law. There was no evidence of any enquiry from 24 March 2000 (the date of conviction) onwards into whether a space could be found during the six-month period for a confiscation hearing and the judge's failure to address the question whether the circumstances could properly be described as exceptional and to make a finding to that effect was fatal to the upholding of the confiscation orders.

On 30 July 2003 the Court of Appeal Criminal Division certified that a point of law of general public importance was involved in the decisions.

On 1 April 2004 the House of Lords granted the Solicitor for Her Majesty's Customs and Excise leave to appeal against the decisions of the Court of Appeal.

On 21 July 2005 the House of Lords reversed the decisions of the Court of Appeal and re-imposed the confiscation orders in respect of both applicants.

In a lengthy opinion, the House of Lords discussed in detail their reasons in allowing the appeal. The appeal centred essentially on a question of statutory construction. Parliament's intended consequences in the event of non-compliance with the statutory time-limits in section 72A of the CJA 1988 (particularly whether total invalidity was envisaged) had to be considered.

The House of Lords noted that Parliament had recognised that in some cases it was more appropriate for a court to proceed to sentence before deciding about whether to impose a confiscation order (where for example the Crown still required further financial information after conviction in order to assess whether and if so what kind of order should be imposed). This would allow the defendant to get on with serving his sentence while these factors were being taken into consideration. This is what had in fact led to the insertion of section 72A into the CJA 1988 by section 28 of the Criminal Justice Act 1993.

In the present case, it was found that the court had postponed its decision on confiscation orders in good faith, even though they had not expressly identified exceptional circumstances to justify this. The possibility that listing difficulties could amount to exceptional circumstances was not ruled out, however. Furthermore, it was important to bear in mind the relatively narrow point in respect of which there was non-compliance. The basis for the contention that the court had lost its jurisdiction was not that it had granted a postponement, nor that it had postponed beyond the end of the six-month period but rather that it had granted the postponement without consideration of whether the circumstances were exceptional. The prejudice to the two accused was not significant and was decisively outweighed by the countervailing public interest in not allowing convicted offenders to escape confiscation for what were no more than bona fide errors in the judicial process.

Ultimately the House of Lords found that given that section 71(1) of the CJA 1988 imposed a positive duty to proceed with confiscation proceedings and given that the time limits under section 72A, linked as they were to the date of conviction rather than sentence, appeared to be imposed rather with a view to the early disgorgement of the offender's gains than for his benefit, Parliament could not have intended to disable the court from making a confiscation order after sentence merely because the time limits were not strictly adhered to. A respondent would when necessary have the safeguard of judicial review, in the event that that there was an apparent abuse of process.

(A) Section 1 of the Proceeds of Crime Act 1995 amends Section 71 of the Criminal Justice Act 1988 as follows:

Section 1 (2) – For subsections (1) to (3) (orders confiscating the proceeds of an offence) there shall be substituted the following subsections— (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) Section 28 of the Criminal Justice Act 1993 amends the Criminal Justice Act 1988 accordingly:

28. The following section shall be inserted in the Criminal Justice Act 1988, after section 72—

72A. — (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 as mentioned in section 71(2)(b)(i) above;

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—

(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,

The applicants complain under Article 6 of the Convention that the criminal proceedings against them were fundamentally unfair as the confiscation orders and default sentences of imprisonment were not imposed within the six-month statutory time-limit provided for in the Criminal Justice Act 1988 (as amended). They allege that the domestic courts' failure to abide by the statutory time-limit or to consider whether there were exceptional circumstances to justify extending the time-limit, as required by statute, rendered the proceedings against them outside the law and manifestly unfair.

The applicants also complain that, as a result of the above, they have been deprived of their right under Article 6 of the Convention to the determination of the criminal charges against them within a reasonable time. They cite in particular the lapse of time between their original sentences in August 2000 and the imposition of the sentences in default of the confiscation orders in early 2002.

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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> David Frederic BULLEN and Kamlesh Kumar SONEJI v the United Kingdom - 3383/06 [2007] ECHR 531 (15 June 2007) URL: http://www.bailii.org/eu/cases/ECHR/2007/531.html Cite as: [2007] ECHR 531

European Court of Human Rights