England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC7.
		26th October 2000

1. MR JUSTICE TURNER: On 13th October 2000 we dismissed the appeal of the appellant against his conviction for a series of frauds committed by him on elderly and vulnerable people. Those frauds arose out of building works which the appellant persuaded the victims to have undertaken. Such works were either not performed at all, were unnecessary, or were grossly overvalued. The convictions were recorded following a trial, over the course of four days from 1st to 4th March 1999 in respect of a number of different counts.
2. There was no doubt but that that the appellant had obtained as the result of the works carried out or pretended to be carried out by him at the victims' premises large sums of money. In consequence of that it was in the learned judge's mind, following application by the prosecution, that this would be a case in which it would be appropriate to consider the making of orders of confiscation and compensation.
3. The statutory background to the making of those orders is to be found, in chronological order, first in the Powers of the Criminal Courts Act 1973 which by section 35 makes provision for compensation orders to be made against convicted persons. By subsection (l)(a) of section 35 it is provided that:

"Compensation under subsection (1) above shall be of such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the accused or the prosecutor."

4. The learned judge both received evidence and entertained submissions in that respect.
5. Section 71 of the Criminal Justice Act 1988, which was in force at the material time, provides by subsection (1) that:

"The Crown Court and the magistrates' court shall each have power, in addition to dealing with an offender in any other way, to make an order under this section requiring him to pay such sum as the court thinks fit."

6. Subsection (2) provides that:

"The Crown Court may make such an order against an offender where —

(a) he is found guilty of any offence to which this Part of this Act applies; and

(b) it is satisfied —

(i) that he has benefited from that offence or from that offence taken together with some other offence of which he is convicted in the same proceedings, or which the court takes into consideration in determining his sentence, and which is not a drug trafficking offence; and

(ii) that his benefit is at least the minimum amount."

7. It is unnecessary to refer further to the provisions of section 71 which contains, as we indicate, the central power of the crown court to make orders of confiscation. It may be important to note, however, that the power to make such orders is only in respect of what we would term conviction offences, or other offences which the defendant asked the court to take into consideration, when passing sentence.
8. By section 72 it is provided as follows:

"(1) A court shall not make a confiscation order unless the prosecutor has given written notice to the court to the effect that it appears to him that, were the court to consider that, it ought to make such an order it would be able to make such an order requiring the offender to pay at least the minimum amount.

(2) If the prosecutor gives the court such a notice, the court shall determine whether it ought to make a confiscation order.

(3) When considering whether to make a confiscation order the court may take into account any information that has been placed before it showing that a victim of an offence to which the proceedings relate has instituted, or intends to institute, civil proceedings against the defendant in respect of any loss, injury or damage sustained in connection with the offence.

(4) If the court determines that it ought to make such an order, the court shall, before sentencing or otherwise dealing with the offender in respect of the offence or, as the case may be, any of the offences concerned, determine the amount to be recovered in his case by virtue of this section and make confiscation order for that amount specificing the offence or offences.

(5) Where a court makes a confiscation order against a defendant in any proceedings, it shall be its duty, in respect of any offence of which he is convicted in those proceedings, to take account of the order before —

(a) imposing any fine on him;

(b) making any order involving any payment by him, other than an order under section 35 of the Powers of Criminal Courts Act 1973."

9. Subsections (c) and (d) have no relevance to the present case:

"But subject to that shall leave the order out of account in determining the appropriate sentence or other manner of dealing with him."

10. (6) we can leave out.

"(7) Where --

(a) a court makes both a confiscation order and an order for the payment of compensation under section 35 of the Powers of Criminal Courts Act 1973 against the same person in the same proceedings; and

(b) it appears to the court that he will not have sufficient means to satisfy both the orders in full, it shall direct that so much of the compensation as will not in its opinion be recoverable because of the insufficiency of his means shall be paid out of any sums recovered under the confiscation order."

11. The only other provision which it is necessary to note at this stage is that the Act enables a person who claims that his assets are insufficient to satisfy the orders of confiscation or compensation to apply to the High Court for a certificate of insufficiency of those assets.
12. In the present case it was not in dispute between the prosecution and the defence other than that the inflation adjusted figure for the value of the conviction offences amounted to £141,000 ignoring the pennies. What was in issue in terms of the figures was the value of the work done by the defendant in those cases where he in fact did perform works in respect of which he made charges against the victims which the victims themselves paid.
13. The learned judge considered the respective submissions in proceedings subsequent to the convictions on 12th July 1999. He concluded that it was a case in which it was appropriate to invoke the powers of section 71 of the Act of 1988 and concluded that the defendant had indeed benefited from the offences of which he stood convicted by the jury. At page 2 of the learned judge's ruling on that date he said:

"So the Crown ask me to make both confiscation orders and compensation orders. So far as compensation is concerned, the point is made by the Crown that even if orders are made as sought, many of the persons defrauded will be substantially out of pocket. This is due partly to the fact that there were in this case sample counts. I am not criticising the prosecution at all, far from it. There were 31 counts, I think, for the jury to consider and it would have overloaded the indictment had a dozen more counts been added, but this is an unfortunate consequence of sample counts."

14. It should be said that there was evidence before the learned judge, whether by way of direct oral evidence or submissions it matters not, that none of the victims who were elderly were in a position to take proceedings for compensation, that being a factor to be taken into account under the provisions of section 72(3) of the Act of 1988.
15. The learned judge set out his intentions with admirable clarity. At page 3 of his ruling he said:

"My real goal here is to ensure that the persons defrauded get back as much as the law in these criminal proceedings allows and I am also anxious to see that the defendant does not profit from his crimes."

16. It was conceded that the figure for compensation was £141,000.
17. The learned judge continued:

"But Mr Gibbons argues that no account has been given as to the value of the work done and he reminds me that the relevant criminal conduct provisions introduced by amendments to the 1988 Act do not apply to this case."

18. At page 4 the learned judge said:

"As with the judge of first instance in the case of Brazil... [a case which came to this Court on an application for leave to appeal against the making of both confiscation and compensation orders], I wish to strip this defendant of every penny he has received from his fraudulent activity. I intend to accede to both applications of the Crown to make a confiscation order in the sum of £141,950 and a compensation order in the like amount."

19. In presenting the appeal to this Court Mr Gibbons, on behalf of the appellant, raised the question, should there have been the imposition of a confiscation order and a compensation order in identical sums where both represent the same loss? He submitted that the practical effect of the additional imposition of the confiscation order in the same sum was the same as if the defendant had been fined as well as being ordered to pay compensation. That was the essential point which Mr Gibbons deployed.
20. We have considered that point with care but conclude that it cannot prevail. The position is not analogous, as Mr Gibbons sought to submit, with the imposition of a fine. The overall purpose of the confiscation provisions in the Act of 1988 is indeed to ensure that so far as practicable the court is in a position to remove from the applicant assets which he has acquired as the result of the criminal conduct of which he has been convicted or (but this is not this case) as has asked the court to take into consideration for the purposes of sentence.
21. It is clear from the provisions of section 72, which we have read, that the court should consider the question of confiscation before it proceeds to compensation. The reason for that we apprehend is clear. That is to say, the court is concerned that the offender should indeed not profit from the results of his wrong doing which has led to conviction. The state has an interest in ensuring that that does not come about. If in the instant case the learned judge having determined to make a confiscation order, as was appropriate, had made no order for compensation, the simple fact would have remained that the victims would severally have theoretically been able to bring proceedings against the appellant in which they claimed in respect of the losses they had sustained by virtue of the appellant's criminal activity. There could in such circumstances be no argument, subject only to the question of a sufficiency of assets, that the individual victims would have been enabled to bring their separate proceedings claiming damages as the result of the appellant's fraud upon them. Thus it can be seen that there is nothing within the Act itself to indicate that the expropriatory provisions of section 72 should be diminished in any way by the independent civil rights of the losers concerned.
22. So it is that we repeat what we said in our judgment when dismissing the appeal against conviction, in paragraphs 25 and 26 in particular. We conclude that the learned judge's approach to the question of confiscation and compensation was entirely appropriate. He identified the reasons why he approached the matter in the way in which he did in a manner which cannot, in the judgment of this Court, be validly criticised.
23. The subsidiary submissions made before us today relate to the question whether or not in making the orders for compensation the learned judge ought to have made some allowance for the value of work performed. The position of the individual victims differed. In some cases work was done which bore some sort of proportional relationship to the cost raised against the individual victim. In some cases the value of the work done bore very little relation to the cost which it was sought to impose on the individual victim. In one case at least no work was done of any value.
24. It is clear that the power of a court to award compensation to a victim is a fairly blunt instrument. The opportunity does not exist in the crown court for extensive adjudication on matters of building quantities. There could be no question of a prolonged process of evaluating either amounts of work or the value which should be attributed to them. There is an added consideration, which is that in many of the cases before us we doubt not that the individual victims had no real wish to have work carried on their property at all.
25. All of this leads us to the conclusion that in ordering compensation in the sums in which he did and making no allowance for the value of work performed the learned judge conformed sufficiently to the provisions of section 35(l)(a) of the Act of 1973 when he made those orders, being such amounts as the court considered appropriate having regard to any evidence and to any representations that were made by or on behalf of the appellant.
26. Compensation awarded under the Act of 1973 was not intended to be a precise evaluation of loss such as must take place in a civil court when damages are awarded. The remedy for the victim is intended to be speedy, efficacious and cost free. Inevitably there will be some inequalities in a case of this sort as between one victim and another, but that is not a feature which leads us to conclude that in making no allowance for the value of work in fact performed the learned judge fell into any error.
27. In the result we dismiss this appeal on the points submitted to us.
28. LORD JUSTICE SWINTON THOMAS: Mr Gibbons, on the last point that you raised at the end of the discussions which took place between the court and counsel on 21st September, of course I have no doubt at all that what you say is correct, that you were under the impression that the Court was with you on that point, although I confess I am a little surprised by that, bearing in mind it was a to and fro discussion of the usual sort of a preliminary nature that takes place between counsel. As I say, I do not know, of course, that that was the impression erroneously that may have given. But, having said that, anybody who consequently looked at paragraphs 26 and 27 of Turner J's considered judgment could have been in any doubt at all that the points remained entirely open for consideration by the court after some mature consideration had been given to it.
29. MR GIBBONS: Of course, my Lords.
30. LORD JUSTICE SWINTON THOMAS: Nothing else to add is there?
31. MR ROYCE: Yes, but nothing to do with this case.
32. My Lord, I am bound to say that we at the Bar have a serious complaint about your Lordship and that complaint is that you left me with the very clear impression that you were proposing to retire on 1st October. What happened, as I understand it, was that thanks to the vigilance of Turner J at least Michael de Navarro and those other members of the Bar came to your court on the day that you did retire. But your typical modesty, if we may say so, in seeking to fold up your tents and steal silently away, deprived me of the opportunity of being here and, if I may say so, very many others who would have loved to have been in your court on your final day. It is typical of you.
33. I do not propose to say any more than a sentence today because I know that Michael de Navarro, as I understand it, paid proper and fitting tribute to your Lordship on that occasion. But you know with what affection you have been regarded by the Bar, first of all, when you were in practice, secondly, when you went to the High Court bench, thirdly, and particularly, dear to our hearts as western circuiteers, when you were a presiding judge of the western circuit, and last, but by no means least, in your capacity as a Lord Justice of Appeal in this Court.
34. We do particularly remember your fairness, your humanity, your judgment, your wisdom and not least that twinkling in the eye and sense of humour that greeted many of us when we have come to your court here, as it did when we appeared before you when you were on the High Court bench.
35. We will miss you more than we can say. It is perhaps fitting that today you have three members of the western circuit before you, your circuit. But there will be more to say, as you well know, on a later occasion in January. We look forward to that. But we wish you all our very best wishes for a happy — I was going to say retirement, but knowing you as we do semi-retirement is almost certainly a much better expression — but you go with the very warm wishes of us all.
36. LORD JUSTICE SWINTON THOMAS: Mr Royce, or Mr Leader as perhaps I would more aptly call you in this Court today, I am extremely grateful for everything that you have so kindly said. I made a very positive decision that I did not wish there to be any valedictory for me in Court first of all at the beginning of October and Turner J took me entirely by surprise and now you have done likewise.
37. As I say, I am grateful indeed for the kind things you have said about me. I had a very happy time on the bench, above all my happiest period of five years being the five years I spent as presiding judge on the western circuit where, as throughout my career, I received enormous help and enormous kindness. I am very grateful to you for what you have said. Thank you.
38. MR JUSTICE TURNER: Could I suggest "post-retirement life" as an apt description?
39. LORD JUSTICE SWINTON THOMAS: I look forward to 19th January.