England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		19th October 2000

1. MR JUSTICE ASTILL: On 17th December 1997 in the Crown Court at Manchester before His Honour Judge Fawcus, after a plea of guilty entered on 25th November 1997, the appellant was sentenced to a total of 16 years' imprisonment for robbery and firearms offences. There were other connected trials outstanding at the time.
2. On 25th November the learned judge ordered the prosecution to serve statements for the purposes of the making of a confiscation order pursuant to section 73 of the Criminal Justice Act 1988 within 2 months and the defence to submit written statements in reply within 1 month thereafter. No mention was made of a compensation order. We have now read the transcript of the hearing before the learned judge. The prosecution served a section 73 statement on 23rd February 1998. It was outside the time ordered by the judge.
3. The prosecution sought an extension beyond the period of 6 months from the date of conviction, but did not do that until 11th June 1998. It was granted.
4. However, since any such application must be made within a 6 months period (see section 72A of the Criminal Justice Act 1988) they were too late and, on 25th February 2000, when the matter was again before the court the prosecution conceded that because of that error no confiscation order could be made. On that date the learned judge made a compensation order in the sum of £30,000.
5. The appellant now appeals against that order with leave of the Single Judge.
6. Since neither the term of imprisonment nor the quantum of the compensation order are in issue it is unnecessary to set out the detail upon which those decisions were based.
7. Mr Stout, for the appellant, submits that the court had no power to make a compensation order. It could have done so within the 28 day period, following the sentence (see section 47(2) of the Supreme Court Act 1981) in the absence of an expressly stated decision to postpone the compensation order part of the sentence. Mr Stout concedes that there is a common law power in the court to postpone all or any part of the sentence but he submits it must be expressly stated as it was in R Anersley 62 Cr App R 113 and R v Ingle (1974) 59 Cr App R(S). Those decisions, he submits, can be distinguished because here there was no expressly stated postponement of the making of a compensation order.
8. We note, in addition, in support of that proposition, R v Menocal [1979] 2 All ER 510 and a more recent decision of this Court R v Teugal [2000] 2 All ER 872, at page 893. Mr Stout submits that, if the common law power to postpone is to be exercised, it must be clearly and expressly stated, (see R v Fairhead [1975] 2 All ER 737) where it was stressed that courts should make clear what decisions were being made, for the obvious reason that defendants must know what penalties they face. Mr Stout submits that compensation was not considered by the prosecution before the judge, and only arose when a confiscation order could not be sought because of the Crown's error. It was, in other words, a second thought.
9. He further submits that it was not permissible, nor could it have been the intention of Parliament, for the prosecution, having failed to meet the demands of a penal statute requiring adherence to strict limits, to change from one financial sanction to another merely because it had become disqualified by its own default. This he submits is a device to defeat the intention of the legislation.
10. Mr Marks, for the respondent, submits that the Crown always had compensation in mind and was relying upon what he called on paper "the mechanism" of section 72(7) of the Criminal Justice Act 1988. Therefore confiscation was considered first with compensation in mind thereafter. Section 72(7) states:

"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 sum recovered under the confiscation order."

11. Relying on that section, Mr Marks submits that the order for consideration is, first, confiscation order and then compensation order. The position here is, of course, that the court did not make both orders as envisaged in section 72(7), nor did it expressly state that that was its intention.
12. Mr Stout submits that that subsection is not concerned with the order of events but rather the manner in which any proceeds are to be divided. Further, since there could be no confiscation order here, then no compensation order could await upon its outcome.
13. It is clear from the ruling of the learned judge that he placed reliance upon the prosecution submission as to the interpretation of section 72(7). It is also clear from the exchanges between counsel and the learned judge that he accepted the prosecution submission that section 72A(9) should be construed so as to preclude the court from making a compensation order when sentencing during the specified period. Section 72A(9) states:

"In sentencing, or otherwise dealing with, the defendant in respect of the offence, or any of the offences concerned at any time during the specified period, the court shall not-

(a) impose any fine on him; or

(b) make any such order as is mentioned in section 72(5)(b) or (c) above."

14. It was submitted to the judge that section 72(5)(b) meant that no compensation order could have been made at the time of sentence and could not have been made before the hearing on 25th February 2000 when this compensation order was made.
15. Mr Marks submits that the purpose of section 72(5)(b) is to protect the interests of those who may be eligible for compensation from the consequences of a confiscation order. Therefore section 72(5)(b) is not to be interpreted as meaning that compensation orders are outside the scope of section 79A(9).
16. Mr Stout submits that section 72(5)(b) specifically excludes compensation orders. It states:

"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 (compensation order)..."

17. Therefore he submits section 72A(9) does not bite upon compensation orders and does not preclude the making of such orders at the time of sentence or during the specified period.
18. Mr Stout further submits that, even if the Crown's interpretation of section 72A(9) and section 72(5) is correct, it would not assist the Crown because since there was no confiscation order in existence no compensation order could follow. The specified period referred to in section 72A(9) has ended and therefore the section has no relevance.
19. This Court is satisfied that section 72(5)(b) does not exclude compensation orders, from the consideration of a court making a confiscation order and that the learned judge had the power to make a compensation order or to postpone the making of an order at the time of sentence.
20. In our judgment, Mr Stout is correct in his submission that this section deals with the manner in which funds are allocated if both orders are made. The exclusion of compensation orders from section 72A(9) provides protection for victims of crime. It means they can benefit from a compensation order, when a confiscation order was made or within the time provided.
21. It was not open to the court, 26 months after conviction, to make a compensation order, when no common-law power had been exercised to postpone the making of such an order at the date of sentence. As we have said, no reference was made to the making of a compensation order, or the postponing of the making of such an order at that time, and accordingly the court had no power to do so more than 2 years after conviction.
22. For these reasons we are satisfied that the order made by the sentencing court was not a lawful order, and this appeal must be allowed and the order quashed.