Neutral Citation Number: [2008] EWCA Crim 2915
No: 200802819 B2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Tuesday, 18th November 2008

B e f o r e:

LORD JUSTICE MOORE‑BICK 

MR JUSTICE MADDISON 
 
THE RECORDER OR NORWICH 
- - - - - - - - - - - - - -
R E G I N A 

v 

DANIYAL BUKHARI
 
- - - - - - - - - - - - - -
Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - -
Miss A K Davies appeared on behalf of the Appellant
Mr N Barker appeared on behalf of the Crown
- - - - - - - - - - - - - -
J U D G M E N T
1.	MR JUSTICE MADDISON:  On 24th July 2006 at the Crown Court at York, the applicant, Daniyal Bukhari, who is now 38 years of age, pleaded guilty to ten counts of obtaining property by deception and three of obtaining a money transfer by deception, contrary to sections 15 and 15A of the Theft Act 1968.  Three other counts of obtaining property by deception, one of attempting to obtain property by deception, and two of obtaining a money transfer by deception were ordered to lie on the file on the usual terms.  For reasons which will become apparent, it is not necessary to refer in this judgment to the facts of the offences to which the applicant pleaded guilty. 
2.	On the following day he was sentenced by His Honour Judge Hoffman to serve concurrent sentences of 3 years' imprisonment on each count.  Orders were also made in respect of compensation and costs.  He makes no application in relation to those sentences and orders.
3.	The prosecutor had given notice to the court under section 71(1)(a) of the Criminal Justice Act 1988 ("the 1988 Act"), stating that the prosecutor considered that it would be appropriate for the court to proceed under section 71 of the 1988 Act with a view to making a confiscation order under that Act.  Accordingly, confiscation proceedings were lawfully postponed pending the filing and service of statements in that regard by the parties.
4.	The prosecutor's statement originally filed contended for a benefit in the sum of no less than £675,816 and sought a confiscation order in that sum.  The hearing of the confiscation proceedings was ultimately listed before Mr Recorder Lowe QC on 3rd August 2007.  By now, the parties had agreed that the applicant had benefited from his criminal conduct in the considerably lesser sum of £83,600, and had also agreed that there was an amount available to satisfy that sum.  Accordingly, a confiscation order was made in that sum to be paid by 1st December 2007, with 2 years' imprisonment in default to be served consecutively to the concurrent sentences of 3 years' imprisonment to which we have already referred.
5.	The applicant has applied for leave to appeal against that confiscation order and the application has been referred by the Registrar to the full court.
6.	The application arises because, after the confiscation order was made, it was appreciated that all parties and the court had been proceeding under a fundamental error.  All of the counts to which the applicant had pleaded guilty involved offences committed on or after 4th June 2003.  The confiscation proceedings should therefore have been conducted pursuant to the Proceeds of Crime Act 2002 ("the 2002 Act") which came into force on 24th March 2003.  Accordingly, any confiscation order made should also have been made under the 2002 Act.
7.	The matter therefore came back before Mr Recorder Lowe QC on 2nd May 2008.  His attention was drawn to section 155(1) of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act").  This provides, so far as it is material, as follows: 
" . . . a sentence imposed, or other order made, by the Crown Court when dealing with an offender may be varied or rescinded by the Crown Court within the period of 28 days beginning with the day on which the sentence or other order was imposed . . . " 
We will refer to the period concerned simply as "the 28‑day period".
8.	The Recorder accepted a submission made on behalf of the applicant by Miss Davies that the 28‑day period was not elastic.  Nevertheless, the Recorder considered that he was entitled to vary the original confiscation order by substituting a reference to the 2002 Act for the reference to the 1988 Act.  Miss Davies, on behalf of the applicant, contends that the original confiscation order and the Recorder's variation of that order were both unlawful.  Those points clearly being properly arguable, we grant leave to appeal.
9.	The starting point, in our judgment, is that the words of section 155(1) of the 2000 Act are quite clear.  In the case of Gordon [2007] 2 Cr.App.R(S) 66, Sir Igor Judge, then the President of the Queen's Bench Division, giving the judgment of the court, stated at paragraph 35 that the power of the Crown Court to vary or rescind a sentence expired with the expiry of the 28‑day period, and that if section 155 was not available, an error could be corrected only by an appeal to the Court of Appeal Criminal Division.
10.	Against that background, we consider the reasons given by the Recorder for his conclusion that he had jurisdiction to vary the confiscation order nevertheless.  First, he observed that Miss Davies accepted before him that, had the error been spotted on 3rd August 2007, the appellant would have consented to a confiscation order in the sum of £83,600 under the 2002 Act.  That, by itself, however, would not, in our judgment, confer the jurisdiction which the Recorder sought to exercise.
11.	Secondly, the Recorder pointed out that the appellant would not be disadvantaged were the order to be varied.  We agree, but again take the view that that, of itself, would not confer the necessary jurisdiction.
12.	The Recorder also relied on a passage in paragraph 5‑943 of the 2008 edition of Archbold which read: 
"Where a merely formal variation in the sentence is made after the expiration of the time limit, which does not alter the substance or the penalty, but merely cures an irregularity in the order of the court, the amendment will not be invalid." 
Two cases are cited in Archbold in support of this principle and have been referred to in the skeleton arguments put before us.  The first is the case of Saville 70 Cr.App.R 204 and the second is the case of Norman [2007] 1 Cr.App.R(S) 82. 
13.	In Saville a criminal bankruptcy order had been made under the correct legislation.  The order had also correctly specified the total loss resulting from the offences concerned in the sum of £35,000.  However, that total had not been apportioned among the various counts in the indictment, as required by section 39(3)(a) of the Powers of Criminal Courts Act 1973 which was then in force.  The judge amended the order some months later by carrying out the apportionment.  The Court of Appeal Criminal Division commented that in the particular case, in which there was only ever one creditor, the required apportionment was "purely an exercise of futility".  The court held that notwithstanding section 11(2) of the Courts Act 1971 (that is the predecessor to section 155 of the 2000 Act), the judge had jurisdiction to do as he did because this "could properly be regarded as an adjustment of an inchoate order which at that moment existed". 
14.	In our view, Saville had no bearing on the present case in which the confiscation order was made under the wrong Act of Parliament, and its variation could be described neither as purely an exercise in futility, nor as an adjustment of an inchoate order which at that moment existed.
15.	We turn to the case of Norman.  In that case the court was considering cases in which errors had been made in relation to the number of custodial days to be allowed against custodial sentences, pursuant to section 240 of the Criminal Justice Act 2003.  The judgment of the court was given by the Vice President of this court, Latham LJ.  He concluded that an order of the court in this connection could be corrected after the 28‑day period, but only if the judge had correctly identified the period in question but the court order, as drawn up, had simply miscalculated the number of days.  Otherwise, Latham LJ said that the only express power available to the court enabling it to correct any such error was under section 155 of the 2000 Act, and that after the 28‑day period any remedy must be provided by an appeal against sentence.  That was so even if both parties agreed that there had been an error.  He said that exceptions to this principle had been recognised only in very limited circumstances, and he referred to Saville in that context.  We can find nothing in Norman to justify the course taken by the Recorder in the present case.
16.	The Recorder also referred to the case of Lazarus [2005] 1 Cr.App.R(S) 98.  In that case, an appeal was brought before this court against the amount of a confiscation order made in the Crown Court.  It transpired that the order had, in fact, been made under the wrong statute.  It had been made under the 2002 Act but should have been made under an earlier statute, in this case the Drug Trafficking Act 1994.  The court corrected the error by applying section 11(3) of the Criminal Appeal Act 1968 ("the 1968 Act").  Section 11(3) provides as follows: 
"On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may ‑‑ 
 (a) quash any sentence or order which is the subject of the appeal; and 
(b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence; 
but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below." 
17.	In taking that course, the court in Lazarus observed that no prejudice to the appellant arose because "the procedure which was followed and the steps of reasoning required of the judge would have been substantially the same".  The Recorder appears to have interpreted the case of Lazarus as meaning that an alteration of the confiscation order to incorporate the correct legislation was merely a formal variation, thus falling within the principle enunciated in paragraph 5‑943 of Archbold, to which we have referred.  In our view, Lazarus does not bear that interpretation.  Quite simply, the court in Lazarus was considering its powers under section 11(3) of the 1968 Act and did not need to consider whether or not the court could have amended the confiscation order pursuant to section 155 of the Act of 2000.
18.	Finally, the Recorder also referred to the case of Soneji and Bullen [2006] 1 Cr.App.R(S) 79, in which the House of Lords held that a confiscation order might be valid, even if made beyond the apparently mandatory 6‑month time limit imposed by section 72A of the 1988 Act; which, we observe, was not replicated in the 2002 Act.  However, in the case of Gordon, to which we have referred, this court held that Soneji and Bullen had no application to section 155 of the 2000 Act.
19.	Accordingly, we accept the submission of Miss Davies, on behalf of the appellant, that the variation of what was originally an unlawful order was itself unlawful, though we sympathise with the Recorder's wish to take a course which would avoid additional delay and legal costs in the difficult situation in which he found himself.  
20.	That said, we can see no reason why we should not follow the same course as that taken in the case of Lazarus and, by the application of section 11(3) of the 1968 Act, quash the original confiscation order made on 3rd August 2007 and substitute a confiscation order in the same sum of £83,600 under the Proceeds of Crime Act 2002.  We are unable to accept Miss Davies' submission made in writing that section 11(3) should not be used to substitute a more recent Act of Parliament for an earlier one.  Neither can we see, notwithstanding Miss Davies' oral submissions before us today, that the appellant would suffer any prejudice were we to adopt that course.  Adopting what was said in the case of Lazarus, the procedure to be followed under the Act of 2002 and the steps of reasoning required of the judge under that Act would have been substantially the same as under the Act of 1988.
21.	We direct that the sum of £83,600 should now be paid within a period two months from today.  That entitles the appellant, should he wish to do so, to apply for a further extension, thus further avoiding any possibility of prejudice to him by the course which we propose to take.  The sentence in default of 2 years' imprisonment ordered in the Crown Court will stand and, as ordered in the Crown Court, we direct that that, if it is to be served, it be served consecutively to the concurrent sentences of 3 years.
22.	For those reasons, and to that extent, this appeal is allowed. 
23.	LORD JUSTICE MOORE-BICK:  Thank you very much, Miss Davies and Mr Barker, for your assistance.