ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM
HH Judge Rafferty QC
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GOOSE
HER HONOUR JUDGE TAYTON QC
(siting as a Judge of the Court of Appeal Criminal Division)
Graham Alan Mills
Mr Christopher Tehrani QC for the respondent
Crown Copyright ©
Lord Justice Simon:
The Judge's decision on the default order
In all the circumstances, taking into account the fact that this falls right at the bottom of the relevant scale, given the elapse of time, given the sentence that the defendant originally received, 18 months in default of payment.
12. The administration of this regime has been considered in a number of decisions of this court: Szrajber (1994) 15 Cr.App.R (S) 821; French (1995) 16 Cr.App.R (S) 841; Smith  EWCA Crim 344; Piggott  EWCA Crim 2292; Price  EWCA Crim 2198; Whiteway-Wilkinson  EWCA Crim. 35; Pettitt  EWCA Crim. 1884 and Young  EWCA Crim 1176. These following principles emerge for the guidance of courts fixing a period of imprisonment to be served in default of payment of a confiscation order:
1. All the circumstances of the case have to be considered.
2. It is of the first importance to have in mind that the purpose of the default term is to secure payment of the confiscation order.
3. It is not the court's function to find an arithmetical match between the amount of the order and the length of the term, such that for any given band or bracket prescribed in the statute an order at the bottom of the band should attract a default term likewise at the bottom of the band, an order in the middle of the band should attract a term in the middle or an order at the top should attract a term at the top.
4. The court is not to be influenced by the overall totality of the sentence passed for the crime plus the default term.
5. But for any given band the court should have regard to the maxima: the maximum amount of a confiscation order within the band and the maximum default term within the band.
6. Given principle 5, and especially in a case such as this falling within the top band where there is no maximum confiscation order but only a maximum default term, regard must be had to the requirement of proportionality. Thus, in Whiteway-Wilkinson the court accepted (paragraph 19 of the judgment) counsel's submission that for a confiscation order of £2 million to £3 million a default term of seven to eight years would have been appropriate.
13. Those are the principles which with respect emerged from the cases. We would add this. Although the court has insisted that the requirement of proportionality has to be respected, that does not imply what in sentencing parlance may be called a "tariff". The purpose of the default term is not punishment for the achievement of retributive justice. It is rather to secure satisfaction of the confiscation order and so deprive the criminal of the fruits of his crime. In that endeavour, the demands of proportionality are much weaker than where the court is punishing the offender. Although retributive justice is by no means the only aim of sentencing, it remains a first condition of criminal punishment that the offender should get no more than his just deserts. Proportionality is thus at the centre of the process. By contrast, the ancillary regime of asset recovery is established on an altogether different footing. Its first condition is effectiveness.
14. However, in this context too proportionality, as we have shown, commands some attention especially in the top bracket where there is no maximum amount for the confiscation order …
The jurisdiction issue
Appeal by prosecutor, etc -
(1) If the Crown Court makes a confiscation order the prosecutor may appeal to the Court of Appeal in respect of the order.
(2) If the Crown Court decides not to make a confiscation order the prosecutor may appeal to the Court of Appeal against the decision.
The statutory scheme
If the court making the confiscation order is satisfied that the defendant is unable to pay the full amount on that day, it may make an order requiring whatever cannot be paid on that day to be paid –
(a) in a specified period …
(1) This section applies if a court -
(a) makes a confiscation order …
(2) Sections 139(2), (3) and (9) and 140(1) to 4 of the Sentencing Act 2000 apply as if the amount ordered to be paid were a fine imposed on the defendant by the court making the confiscation order.
(2A) Where a court is fixing a term of imprisonment or detention under section 139(2) of the Sentencing Act (as applied by subsection (2) above) in respect of an amount ordered to be paid under a confiscation order, the maximum terms are those specified in the second column of the Table for amounts described in the corresponding entry in the first column.
Amount Maximum Term
£10,000 or less 6 months
More than £10,000 but no more than £500,000 5 years
More than £500,000 but no more than £1 million 7 years
More than £1 million 14 years
… if the Crown Court imposes a fine on any person … the court shall make an order fixing a term of imprisonment … which he is to undergo if any sum which he is liable to pay is not duly paid or recovered.
Although the point presently under consideration was not considered by the court in Popple, what does emerge very clearly from the passages in the judgment to which we have referred is that if the provisions of the 1986 Act and the 1973 Act are to be fully complied with the sentencing court makes two orders and not one. There is the confiscation order itself and there is the order in default which in effect is an enforcement order which is penal in character. Must the failure to make the second taint the legality or validity of the first?
In our judgment unless any decided case compels us to reach a different conclusion the answer to that question must be 'No'.
We find nothing in the judgment which inhibits our conclusion that where the sole failure is a failure to make the second and consequential order (namely, the order in default of payment) that cannot itself taint the legality or the validity of the confiscation order.
The Judge's decision