Court of Appeal
| DOI | 10.1177/002201839706100102 |
| Published date | 01 February 1997 |
| Date | 01 February 1997 |
| Subject Matter | Court of Appeal |
COURT
OF
APPEAL
FINES TO REFLECT TIME SPENT IN CUSTODY
R v Warden
When the police raided the house of the appellant in R v Warden (1996)
160 JP 363, they found drugs, firearms, stolen property and a substantial
quantity of cash. The appellant claimed that he was not concerned with
any of those things, although he knew that his son smoked cannabis with
his friends in a caravan in the garden and no doubt may have given
cannabis to some of his friends who visited him there. He claimed that he
did not know that his son dealt in cannabis and he asserted that the
money which the police had found belonged to his daughter. He was
none-the-Iess convicted of permitting his premises to be used for supplying
cannabis and he was fined £2,000. He applied for leave to appeal on the
ground that the amount of the fine was manifestly excessiveand that the
judge had been in error in not giving him 'credit' for the 14 days which he
had spent in custody on remand while awaiting trial. Although the single
judge refused leave to appeal against sentence, the full court granted that
leave, in order to examine the question whether the credit which would
normally be given for time spent in custody awaiting trial to an offender
on whom later a custodial sentence was imposed was also available to an
offender who received a non-custodial sentence. The extension of that
credit to non-custodial sentences is not without its difficulties, both
theoretical and practical. The Roman lawyers of antiquity told us that
liberty is inestimable. And if one attempts to estimate it, on what balance
is it to be weighed?As Lord Hewart CJ used to say, it is like adding up
two pounds of butter and
five
o'clock. In the present case, the fact that
the defendant had spent 14days in custody was not drawn to the attention
of the judge before he passed sentence; and, when this was belatedly done
after sentence had been passed, the judge none-the-less refused an
application made under s 47 of the Supreme Court Act
1981
for the
sentence to be altered.
Section 18(3) of the Criminal Justice Act
1991
provides that the amount
of any fine shall reflect the seriousness of the offence. Here, the judge,
although asserting that he had heard little of the true facts of the case,
was bound to proceed on the assumption that the defendant knew nothing
other than that his son smoked cannabis on the premises and that 'a
certain amount of social supplying went on'. On this basis, the Court of
Appeal agreed that the amount of the fine was excessive. The applicant
had further argued that, since s 18(3) requires any judge who imposes a
fine to look at the circumstances of the case generally, the fact that the
applicant had spent a period of time in custody was relevant to the
amount of the
fine.
The court accepted this submission and Moore-Bick J
enunciated the general proposition that 'where a person who has spent
time in custody is subsequently dealt with in a manner which does not
38
Court
of
Appeal
involve a custodial sentence, some credit should normally be given for the
time spent in custody' (at p 365E). Finding that a fine of £2,000 was
excessive, both on general considerations and for the particular reason
that no credit had been given for the time in custody, the court held that
a fine of £1,000 would be sufficient to reflect both the gravity of the
offence and the time spent in custody. There was, however, the further
question
of
the application
of
s 18(1)
of
the
1991
Act, which requires the
court to inquire into the financial circumstances
of
the defendant. Here,
the judge does not appear to have made any specific inquiry into the
matter, possibly because the defendant had made no attempt to indicate
to the judge what his financial standing was. Nor, indeed, did the Court
of Appeal learn much more than
that
the defendant was unemployed and
spent his time training greyhounds (of which one member of the court
surmised that some may win). The court therefore allowed the amended
fine
of
£1,000 to stand, although it allowed the defendant to pay that sum
by instalments
of
£20 per week.
CONFISCATION OF PROCEEDS OF FORMER
DRUG
TRAFFICKING
R v Taylor
In 1986, the appellant in R v Tay/or
[1996]
1 Cr App R 64 was convicted
of
conspiring to import cannabis between 1970 and
1979.
He was
sentenced to six years' imprisonment and fined £234,000, which was the
amount found in his possession on his arrest. No confiscation order could
be made, as the Drug Trafficking Offences Act 1986 had not been brought
into effect at the time
of
his conviction. In 1994, he was convicted of
conspiracy fraudulently to evade the prohibition on importing cannabis.
He admitted on oath on that occasion that he had been guilty of
trafficking in the drug between 1970 and 1979. On that second occasion,
he was sentenced to 10 years' imprisonment and a confiscation order was
made in the sum
of
over £15,000 with a consecutive default sentence of
four years. That sum was assessed on the basis
of
his obtaining a benefit
of £3,750 from the drug trafficking upon which his second conviction had
been obtained and the balance
of
over £11,000 being benefit which he had
received from the earlier trafficking
of
which he had been convicted in
1986.
He appealed against that part
of
the confiscation order which related
to the earlier benefits, on the ground that the trial judge was purporting,
contrary to s 38
(l)
of the 1986 Act, to exercise a power 'in connection
with proceedings against a person for a drug trafficking offence instituted
before the commencement
of
s 1 of the Act'. The appeal was therefore
limited to the sums he had received for offences
of
which he had already
been convicted and sentenced and fined.
It
was conceded (and indeed boasted) by the appellant that he had in
fact received the benefits
of
the earlier drug trafficking offences which
were incorporated in the confiscation order. He also conceded that the
1986 Act permits the court, in some circumstances, to assess benefits
which were received before the Act came into effect. He submitted,
39
Journal
of
Criminal Law
however, that the Act forbids retrospectivity and that in the present case
the order, notwithstanding the Act, contained an element
of
retrospectivity.
Section 1(3) of the 1986 Act provides that a person has benefited from
drug trafficking if he 'has at any time (whether before or after the
commencement of this section) received any payment or other reward in
connection with drug trafficking
...
' If the court determines that he has
so benefited, it must then determine 'the amount to be recovered by virtue
of
the section'. Section 2(1)(a) provides that his 'proceeds' are 'any
payments' received
'at
any time' in connection with drug trafficking.
Section 2(2) sets out the assumptions the court may make in relation to
the six years preceding his prosecution, and, -although that provision did
not apply to sums received between 1970 and 1979, it does indicate that
the court may in some circumstances concern itself with past transactions
and is not confined to benefits arising out
of
which the instant prosecution
arose. Section 2(5) enacts that the court shall not take account
of
benefits
which have accrued but which have already been taken into account in an
earlier confiscation order. The implication appears to be that, if they have
not already been taken to account in this way, they may be considered on
a later occasion.
It
is against this background that s 38(4), on which the appellant relied,
must be considered. After providing that the Act is also concerned with
offences committed before the commencement of s 1 of the Act, the
subsection adds
'but
nothing in the Act imposes any duty or confers any
power on any court in or in connection with any proceedings against a
person for a drug trafficking offence instituted before the commencement
of that section'. The appellant submitted that, in taking into account the
benefits which he received before his conviction in 1986, the trial judge
was purporting to exercise a power 'in connection with proceedings against
the appellant for a drug trafficking offence instituted before the
commencement of s 1'. The court pointed out, however, that s 38(1) had
distinguished between drug trafficking, which is defined as doing or being
concerned in doing various acts in connection with controlled drugs, either
here or abroad, and a drug trafficking offence, which is defined as one of
a number of statutory offences which are specifically set
out
in the section.
The court concluded that the power exercised by the judge in this case
was not exercised 'in connection with proceedings', but in relation to the
earlier drug trafficking offences themselves: it was in connection with
doing the offending acts, which are separately defined in s 38 and are
quite distinct from the proceedings to which they may give rise. Lord
Taylor CJ pointed to the fact that the sole purpose and effect of s 38(4) is
to make certain transitional provisions. When proceedings were
commenced before the Act came into effect the judge had not the powers
which the Act conferred on him in relation to offences committed after its
commencement. The court decided that the subsection could go no further,
as, otherwise, it would flatly contradict the provisions contained in s 2(5)
which specifically permit the court, even where there has been an earlier
confiscation order in earlier proceedings, to make a further order
concerning benefit, provided it has not been covered by the earlier order.
As it would 'make no sense' to construe s 38(4) as prohibiting that which
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