ON APPEAL FROM THE CROWN COURT AT BRADFORD
HIS HONOUR JUDGE DURHAM HALL (1)
ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
MR RECORDER ASIF QC (2)
ON APPEAL FROM THE CROWN COURT AT BRISTOL
HIS HONOUR JUDGE TICEHURST (3)
ON APPEAL FROM THE CROWN COURT AT ISLEWORTH
HIS HONOUR JUDGE KATHUDA (4)
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE GOLDRING
MRS JUSTICE RAFFERTY
MR JUSTICE WILKIE
MR JUSTICE KING
Mr H Southey QC and Mr M Singh for the Applicant (2)
Mr H Southey QC and Mr S Wood for the Applicant (3)
Mr H Southey QC and Mr R Hallowes for the Applicant (4)
Mr D Perry QC and W Hays for the Crown
Hearing dates : 10th June 2010
Crown Copyright ©
The Lord Chief Justice of England and Wales:
"…the Crown Court has no power to make a confiscation order against a defendant following conviction for an offence if he or she receives an absolute or conditional discharge for that offence".
The confiscation orders made in each of the present applications contravened this statement of principle.
"Does the Crown Court have the power to make a confiscation order against a defendant following conviction for an offence if he or she receives an absolute or conditional discharge for that offence". (para 45)
In view of the detailed recital in Clarke of a very wide range of legislative provisions, we shall confine ourselves to the critical provisions which bear directly on this issue.
"(1) Where a court by or before which a person is convicted of an offence…is of the opinion, having regard to the circumstances including the nature of the offence and character of the offender, that it is inexpedient to inflict punishment, the court may make an order either –
(a) discharging him absolutely; or
(b) if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding 3 years from the date of the order, as may be specified in the order…
(7) Nothing in this section shall be construed as preventing a court, on discharging an offender absolutely or conditionally in respect of any offence, from making an order for costs against the offender or imposing any disqualification on him or from making in respect of the offence an order under section 130, 143 or 148 below (compensation orders, deprivation order and restitution orders)".
"No enactment restricting the power of a court dealing with an offender in a particular way from dealing with him in also any other way shall by reason only of the making of an order under this section restrict the Crown Court from dealing with an offender in any way the court considers appropriate in respect of a drug trafficking offence."
Similar provision was made, with necessary alterations to the language, to deal with non-drug trafficking offences, by section 72 of the Criminal Justice Act 1988, as amended.
"(1) The Crown Court must proceed under this section if the following two conditions are satisfied
(2) The first condition is that a defendant falls within any of the following paragraphs –
(a) he is convicted of an offence or offences in proceedings before the Crown Court; …
(3) The second condition is that
(a) the prosecutor or the Director asks the court to proceed under this section, or
(b) The court believes it is appropriate for it to do so."
Section 13 of the 2002 Act provides:
"(1) If the court makes a confiscation order it must proceed as mentioned in sub-sections (2) and (4) in respect of the offence or offences concerned.
(2) The court must take account of the confiscation order before –
(a) it imposes a fine on the defendant, or
(b) it makes an order falling within sub-section (3)
(3) These orders fall within this subsection –
(b) …(forfeiture orders) ;
(c)… (deprivation orders);
(4) Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant…"
Section 14 of the 2002 Act provides:
"(1) The court may –
(a) proceed under section 6 before it sentences the defendant for the offence…or
(b) postpone proceedings under section 6 for a specified period.
(11) A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement
(12) That subsection (11) does not apply if before it made the confiscation order the court –
(a) imposed a fine on the defendant;
(b) made an order falling under section 13(3);
(c) made an order under section 130 of the Sentencing Act (compensation orders)".
Section 15 of the 2002 Act provides:
"(1) If the court postpones proceedings under section (6) it may proceed to sentence the defendant for the offence (or any of the offences) concerned.
(2) In sentencing the defendant for the offence (or any of the offences) concerned in the postponement period the court must not
(a) impose a fine on him
(b) make an order falling within section 13(3), or
(c) make an order for the payment of compensation under section 130…
(3) If the court sentences the defendant for the offence (or any of the offences) concerned in the postponement period, after that period ends it may vary the sentence by
(a) imposing a fine on him,
(b) making an order falling within section 13(3) or
(c) making an order for the payment of compensation under section 130…"
"It follows from section 14(1)(a) of the 2002 Act that a court may proceed to make a confiscation order before passing sentence. (Counsel for the Crown) submits that this provides a strong argument in support of the proposition that, under the 2002 Act an order of absolute or conditional discharge would not prevent the making of a confiscation order. If it did, then a confiscation order made before sentence was passed would (presumably) have to be quashed if, subsequently, an order of absolute or conditional discharge was made and yet there is no express power to do that". (paragraph 46)
The court concluded:
"Thus, in our view, there is nothing in section 14 of the 2000 Act which prevents a Crown Court Judge from making both a confiscation order and an absolute or conditional discharge order". (paragraph 70)
"…the legislature has had well in mind the need to make provision for the consequences of making orders of absolute and conditional discharge sometimes distinguishing between them. As we have seen, the 2000 Act amended a number of other Acts to make reference to sections 12 and 14 of the 2000 Act …the fact that the 2002 Act imposes a mandatory regime is obviously a powerful argument for saying that the court must proceed under section 6 even though the defendant is being absolutely or conditionally discharged. However, in the light of Savage and Young, section 12(7) and of the history of section 12(7), we have reached the conclusion that the Crown Court has no power to make a confiscation order against a defendant following conviction for an offence if he or she received an absolute or conditional discharge for that offence. If Parliament had wanted to include confiscation orders within the 1973 predecessor to section 12 …or in the 2000 Act it could easily have done so. We are mindful of the fact that the orders which have been made in Savage and Young were made under legislation which gave the power to make the order but did not require the making of an order, but we do not think that this affects the conclusion which we have reached". (paragraphs 76 and 77)
At the very end of the judgment the court added:
"Given that a confiscation order can, at least in theory, be made before passing sentence, it would obviously be prudent in those very rare cases where an absolute of conditional discharge is a possibility, to decide upon sentence first. We do not think that offends section 13 of the 2002 Act". (paragraph 78)