Reference no: EM131210836

Crime-Sentence-Confiscation order-Defendant convicted of criminal offences and confiscation proceedings taking place-Alleged defects

In notice served on court-Whether court having jurisdiction to make confiscation order- justice Act 191113 (c 33) (as amended by Criminal Justice Act 1993 (c 36), 55. 27- 35 and Proceeds of Crime Act 1995 (c 11), 55. 1 - 10 ), ss, .71, 72.

Judicial precedent-Court of Appeal (Criminal Division) decision-How far binding-Defendant relying on Court of Appeal authority to appeal against confiscation order-Court of Appeal subsequently concluding that authority wrongly decided-Whether entitled not to follow previous authority

The defendant pleaded guilty in the Crown Court to an indictment containing six counts arising from a value added tax fraud. The prosecution served notice on the court that it considered it appropriate that the court should proceed under section 71 of the Criminal Justice Act 1988 with a view to making a confiscation order and a confiscation order was subsequently made against the defendant.

The defendant appealed against that order on the ground, inter alia, that the confiscation notice served on the court was defective since it did not comply with section 72 of the 1988 Act, as amended by the Criminal Justice Act 1993, and therefore, in accordance with the Court of Appeal decision in R v Palmer, the court was deprived of jurisdiction in the confiscation proceedings.

The defendant contended that the amendments made to the 1988 Act by section of the Proceeds of Crime Act L995 2 , under which the court could proceed with confiscation proceedings of its own volition, did not apply since section 1 of that Act was not in force when the offence alleged in one of the counts was committed, even though the confiscation order was not based on that count.

Before the hearing of the defendant's appeal, the Court of Appeal decided that Palmer was wrongly decided and should not be followed. The defendant argued that, as a matter of precedent, the Court of Appeal had not been entitled to decide that one of its own previous decisions was wrong.

On the defendant's appeal-

Held:

(1) that rules as to precedent reflected the practice of the courts, and were of considerable importance because of their role in achieving the appropriate degree of certainty as to the law, but they should not be regarded as so rigid that they could not develop in order to meet contemporary needs; that it was not safe to rely on a decision that was given in the absence of relevant information if it was at least probable that, if the information had been known, the decision would have been affected by it; that, although the Court of Appeal (Criminal Division) would not normally look behind one of its previous decisions, it had a residual discretion to decide whether a decision should be treated as binding when there were grounds for saying that it was wrong; that the discretion to depart from a previous precedent was not to be exercised lightly and, in exercising that discretion, the constitution of the court was of relevance; that, although the previous cases were each dealing with different procedural failures, the approach to interpretation required in both cases was the same; that the law was misunderstood and misapplied in Palmer and there *119 were ample grounds for the Court of Appeal subsequently to regard it as not binding; and that, accordingly, if the 1995 Act did not apply at the relevant time, any defects in the confiscation notice served on the court did not deprive the judge of jurisdiction to make the confiscation order (post, paras 27, 35-38, 41).

R v Sekhon [20033 1 WLR 1655, CA applied .
R v Palmer The Times, 5 November 2002, CA not followed.