England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		27 September 2017

1. MR JUSTICE SPENCER: This appeal against sentence is confined to the question whether a deprivation order under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 should have been made in respect of £4,600 in cash found at the appellant's home address following his arrest for possessing crack cocaine with intent to supply. The appeal is brought by leave of the single judge.

The appellant pleaded guilty to that offence in the Crown Court at Guildford on 23rd February 2017 and was sentenced by His Honour Judge Moss to a term of three years and four months' imprisonment. There is no appeal against that term of imprisonment. There was also an application for leave to appeal against a forfeiture order made under the same provision in respect of the vehicle in which the appellant had been arrested. The single judge refused leave on that ground. There was no indication on behalf of the appellant that the ground was to be pursued by way of a renewed application to this court for leave. Consequently the prosecution have not been put on notice of that either. When we drew that to Miss Plant's attention this morning she decided not to pursue the ground in respect of the vehicle. We are sure that was the correct decision. We can see no basis on which leave could have been granted to challenge that part of the judge's order.

2. The facts are that the appellant's car was stopped by the police on the evening of 24th January 2017. Beneath the driver's seat was a wrap of crack cocaine. He was arrested. At the police station he was strip searched. A further 36 wraps were found secreted in his buttocks. In total he was in possession of 4.54 grams of crack cocaine. One of the wraps was tested and found to be 91 per cent pure. The total street value of the cocaine was estimated at £720. Two mobile phones were seized from the appellant, for which he refused to supply the PIN codes.
3. The appellant's home address was searched. The police found there cash totalling £4,600. There was a large quantity of seal lock bags, plastic gloves, scales, a pot bearing traces of white powder, a knife with traces of white powder and a further mobile phone.
4. In interview the appellant provided a prepared statement in which he asserted that the drugs found on him by the police were for his own personal use. In relation to the £4,600 cash, he went into some detail as to how it was made up and its provenance. He said there were three sealed bags containing £1,000 each. There was £1,200 in the same envelope, sealed. This was for spending money and money owed to his mother, he said, to fix her car after a crash the previous year. He said all of the money he had mentioned so far represented winnings from a casino in Stratford -- he named the casino -- and could be verified by transactions. The remaining £400, he said, belonged to his girlfriend, whom he named, "which was money she gave me for tickets bought for me by a friend to go to a music concert in Februry 2017". He gave details of the concert. He said the £400 included money to cover the proposed stay at a hotel. There was, therefore, an explanation given in interview for his possession of all the money.
5. The course of the proceedings before the judge is not fully covered in the transcripts with which we have been provided. We have a transcript of the prosecution statement of facts and we have a transcript of the judge's observations when passing sentence. We do not have a transcript of mitigation, nor of what we assume must have taken place by way of further exchanges between the judge and counsel in relation to ancillary orders. We say that because we are told by Miss Plant that there was in fact no application in advance by the prosecution for an order of forfeiture in respect of the £4,600 cash. There was, she says, an indication to the judge that there would not be a Proceeds of Crime Act application and it seems that no timetable was set for that, as would normally be the case in a drugs matter. The inference is that the judge must at some stage have been told that the £4,600 was to be the subject of a potential application of some kind, but it is far from clear precisely what, if anything, was said about that and when.
6. The single judge in granting leave required the prosecution to provide a skeleton argument. Counsel who prosecuted the case, Miss Blumgart, is not present today but we are grateful for her skeleton. She unfortunately has precious little recollection of the case save what she can reconstruct from the transcripts that have been provided to her. It is not at all clear to us that there was a formal application upon which the judge was required to adjudicate in respect of the £4,600 cash. The transcript of the prosecution opening includes no mention of an application for the forfeiture of the cash, or indeed of any of the other items. The judge in due course ordered forfeiture of the car as well, and of the drugs paraphernalia.
7. In passing sentence, the judge summarised the facts. He referred to the £4,600 cash and other items found at the appellant's home address, including a third mobile phone with an unsent message saying "4 for 30". The judge said that the evidence as a whole (as we understand it) was "the clearest evidence that he was commercially involved in selling drugs". The judge then made this observation:

"You seem to be lucky at cards or roulette or something as well because you say a lot of the money came from that. Is there any casino in Stratford? Perhaps they are more generous than the casinos that I go to."

The prosecution contend in Miss Blumgart's skeleton that, by implication, the judge was thereby rejecting any explanation put forward by the appellant for his possession of this cash.

8. Having passed the custodial sentence, the judge said that in addition, as part of the punishment, he would forfeit the drugs, the paraphernalia, the car and three mobile phones. He gave directions about notifying any interested parties in view of the fact that the vehicle was subject to hire purchase. Until then he had said nothing in his sentencing remarks about the cash. He was then reminded by prosecuting counsel that he had not mentioned the £4,600 and the judge added this:

"There is a deprivation order of the £4,600 which will be directed, I think, to the drug finance for the fight against crime. Is that what happens or is it just forfeit? I think it is a deprivation order. I do not think I need to direct which pocket it goes into."

No one took issue with that direction. In particular, Miss Plant accepts that she did not, as she should have done, challenge the judge as to the basis on which the order had been made when her client and, if appropriate, any other witness had not had an opportunity to give evidence in support of the contention that this money should not be forfeited because it was legitimately the appellant's, or the appellant's and someone else's.

9. The court record indicates that the order in respect of the money was made under section 143 of the 2000 Act. Indeed, there was a separate document headed "deprivation order" stating that the court ordered that the appellant be deprived of any rights to the £4,600 cash pursuant to section 143 of the Act.
10. We pressed Miss Plant in the course of the hearing as to the extent to which the question of this cash was addressed in mitigation. She told us that she did deal with the cash, not in the context of seeking to resist an order for its forfeiture, but simply to explain the provenance of the money, confirming what the appellant had said in interview.
11. We are bound to observe that the whole procedure which was followed in relation to this aspect of the sentencing process seems to have been extremely lax. If we may say so, not only should the judge have taken a much firmer and more formal grip on the way matters were being dealt with, but counsel too were under an obligation to ensure that any order the judge made was made on a proper basis and in accordance with proper process.
12. This court is aware from experience of practice in the Crown Court that it is common in drugs supply cases such as this that, rather than embarking upon confiscation proceedings in respect of cash which has been recovered, instead, usually by consent, an order is made under section 143 of the 2000 Act, sometimes alternatively under section 27 of the Misuse of Drugs Act 1971, with a direction that the money be paid to a relevant organisation tasked with combating drug crime or the rehabilitation of offenders for drugs offences. Laudable as that may be, it does not take away from the need for a proper formal procedure to be adopted where there is an issue as to whether such an order can properly be made. As the authorities make clear, there must be a proper investigation. We have to consider whether the order the judge made in this case in respect of the cash was properly and lawfully made.
13. Section 143 of the Act, so far as relevant, provides that where a person is convicted of an offence and the court is satisfied that any property that has been lawfully seized from him, or which was in his possession or under his control at the time he was apprehended for the offence (a) has been used for the purpose of committing or facilitating the commission of any offence, or (b) was intended by him to be used for that purpose, the court may make an order under the section in respect of that property.
14. Here the offence of which the appellant was convicted was possession of crack cocaine with intent to supply, not actual supply. It was not an offence directly concerned with the money which was found at his home address, nor indeed were any drugs found. We accept, however, that the judge was plainly satisfied and entitled to conclude, for the purpose of deciding where this offence fell in the Sentencing Guidelines Council guideline, that the appellant was commercially involved in selling drugs,
15. In her skeleton argument, Miss Blumgart helpfully drew our attention to the decision of this court in R v O'Farrell (1988) 7 Cr.App.R 74. There was a similar situation in that case. The defendant was convicted of supplying cannabis resin. The sum of £3,905 in cash was found in his possession. The prosecution applied for forfeiture of the cash under section 27 of the Misuse of Drugs Act 1971. That provision is rather differently framed. Section 27 provides that the court by which a person is convicted of a relevant offence may order anything shown to the satisfaction of the court to relate to the offence to be forfeited and either destroyed or dealt with in such a manner as the court may order. We observe that section 27(2) provides that the court should not order anything to be forfeited under this section where a person claiming to be the owner or otherwise interested applies to be heard by the court, unless an opportunity has been given to show cause why the order should not be made.
16. In O'Farrell, the judge conducted a trial of the issue in relation to forfeiture. The defendant contended that the money belonged to his mother and not to him. The judge found against him and found that the money was the product of the defendant's dealing in drugs. We remind ourselves that in that case the offence was supplying cannabis resin. The appeal in that case raised the issue of whether the money had originated from past dealings in cannabis or whether it was merely his working capital for future deals, in which case the argument that the cash did not "relate to the offence" would be stronger. This court held that the judge was entitled to conclude that the money was the product of dealing in drugs and therefore related to the offence of which he had been convicted. However, it is relevant for present purposes that the court went on to say that even if it had been his working capital for future dealings in drugs, the judge would have had power to make a forfeiture order under the provisions of what was then section 43 of the Powers of Criminal Courts Act 1973, now section 143 of the 2000 Act.
17. It follows from this that, consistent with the view the judge expressed in his sentencing remarks, it would certainly have been open to the judge as a matter of law to make an order under s.143 if he concluded that the £4,600 found at the appellant's home address was his working capital for future drug dealing. However, that decision could only be made after a proper enquiry in which there had been an opportunity for the appellant to give evidence if he wished, and in particular for the girlfriend, whose money the £400 was said to be, to give evidence or make representations. None of that happened.
18. In those circumstances, we are unable to uphold this order as one which was properly and lawfully made. We observe that the judge certainly never said in terms in his sentencing remarks, or at any stage as far as we can see, that he rejected out of hand the explanation which had been given by the appellant in relation to the casino. Indeed, it could be said that the judge's own observation about casinos in Stratford (i.e. that the applicant must be lucky at cards or roulette) tended, if anything, to indicate that the judge was not ruling that out as an explanation for the appellant's possession of some at least of the cash. If the judge had made it clear that he had considered the applicant's explanation and was sure that it was untrue, and sure that all the cash represented the appellant's working capital for future drug dealing, then his conclusion would probably have been unassailable. However, for the reasons we have given we cannot be confident that the judge applied his mind to the issue in as focused as way as was necessary.
19. In those circumstances the order in respect of the cash cannot stand. Accordingly, the deprivation order in respect of the cash is quashed and to that extent the appeal is allowed.

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