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Confiscation order quashed after procedural errors

A breath of fresh air in the decision from the Court of Appeal in Lodvik Guraj [2015] EWCA 305 following a scenario with which most criminal defence lawyers will be familiar.  In July 2012 the Appellant was convicted of drug trafficking and money laundering offences and sentenced to imprisonment. The sentencing judge fixed a fairly standard timetable for confiscation. Crucially, she also made a forfeiture order. The defendant served a statement of assets in September 2012 but the prosecution never complied with the direction to serve its statement by October 2012. In fact, nothing at all happened until January 2014 when a new Judge fixed a fresh timetable and made a wasted costs order against the Crown. The Crown did not comply with the new timetable either and the case came before a different judge again in May 2014. He made another wasted costs order against the Crown but fixed a new timetable which led to a confiscation order being made the following month (June 2014 so just inside the two year period). The defendant appealed. The Court of Appeal reviewed all of the authorities from which it was able to discern the following principles. Firstly, confiscation proceedings should take preference over other proceedings including those for forfeiture. Secondly, confiscation proceedings should move forward expeditiously. Thirdly, confiscation proceedings should not be invalidated by procedural errors. In this case, no application for postponement had actually been made but the ‘rescue provision’ in section 14(11) could not be applied because the judge had made the forfeiture order. Accordingly, the confiscation order was quashed but the Court did say this: “whilst some of our comments may seem critical of the CPS, we do appreciate that the organisation is over-worked and stretched. If the prosecution is unable (for whatever reason) to carry through confiscation proceedings efficiently, the consequence may be, and in this case is, that large sums are lost to the public purse”.


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