Crown Prosecution Service (Nottinghamshire) v Rose

JurisdictionEngland & Wales
JudgeLORD JUSTICE TOULSON,MR JUSTICE BUTTERFIELD,Lord Justice Richards
Judgment Date21 February 2008
Neutral Citation[2007] EWCA Crim 1526,[2008] EWCA Crim 239
Docket Number(1) Case No: 200606278-B5,No: 200605827/A9, 200606278/B5
CourtCourt of Appeal (Criminal Division)
Date21 February 2008

[2007] EWCA Crim 1526

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2

Before

Lord Justice Toulson

Mr Justice Butterfield

His Honour Judge Wadsworth QC

(Sitting as a Judge of the Court of Appeal Criminal Division)

No: 200605827/A9, 200606278/B5

Regina
and
Kevin Rose
and
Re: Nottinghamshire Cps

MR M HURST appeared on behalf of the APPELLANT

MR T S LODY appeared on behalf of the CROWN

LORD JUSTICE TOULSON
1

We will put this over. We will just shortly say what we are doing and why, so that it is on the record, because it won't come back before this constitution. So do sit down.

2

On 2nd October 2006 in the Crown Court at Nottingham before His Honour Judge Mitchell and a jury, Kevin Rose was convicted of three counts of possession of criminal property contrary to sections 329(1)(c) and 334 of the Proceeds of Crime Act 2002. On 23rd October 2006 he was sentenced to 30 months' imprisonment on each count concurrent.

3

He seeks leave to appeal against that sentence following refusal by the single judge.

4

A confiscation order was made under the Proceeds of Crime Act 2002 in the sum of £8,272.50 to be paid in six months with a period of six months' imprisonment consecutive in default.

5

The prosecution appeal against that order which they submit should have been for a substantially greater amount.

6

This was not a case where the applicant was alleged to have a criminal lifestyle. The confiscation proceedings were under section 6(4)(c) of the Act. In other words, the enquiry for the court to make was whether the applicant had benefited from his particular criminal conduct. The nature of the conduct was that he had allowed his premises to be used for stolen property. Effectively, in slang language, he was a “fence”. Three items of some value were found at his premises: a horse trailer, a JCB and a HGV trailer unit.

7

The prosecution sought a confiscation order in the amount of the value of those items to the owner. The sums claimed represented the insured value of the items.

8

The majority of the stolen goods had been recovered. The judge felt that it was instinctively wrong that an assessment of the applicant's benefit could include items which had been recovered by the true owners and therefore he deducted the value of the recovered goods in arriving at the benefit figure.

9

The prosecution submit that in that respect his reasoning was faulty. It is not for the court under the Act to carry out an unfettered assessment of what, in its judgment, is the amount of a defendant's benefit. Rather, it must follow the letter of the statutory regime. Under the statutory regime the benefit comprises the value of what he received. What happened to the goods afterwards was irrelevant.

10

The defence accept that the judge was in error in that respect and the court was notified that they did not intend to contest the appeal.

11

It did occur to this court when looking at the case that there was a separate point that did not appear to have been considered by the judge, or put before him. Counsel for the applicant in the proceedings now wishes to develop that point.

12

Neither counsel came to court today ready to argue the point, and because it is a point of some potential importance it would be wrong for these proceedings to continue today. We are therefore going to adjourn the appeal so that counsel can have a proper opportunity of considering the point, putting in skeleton arguments on the point and citing any relevant authority. It will, however, be convenient simply to identify what the point is.

13

Under section 7(1) of the Act the recoverable amount for the purposes of section 6 is an amount equal to the defendant's benefit from the conduct concerned. Under section 76(4) a person benefits from conduct if he obtains property as a result of or in connection with the conduct. Section 75(7) provides that if a person benefits from conduct his benefit is the value of the property obtained. The question therefore arises, following the letter of the Act, how that value is to be assessed.

14

Section 79 sets out the rules as to that. It provides, so far as material, as follows:

“(1) This section applies for the purpose of deciding the value at any time of property then held by a person.”

The relevant person here is the defendant, against whom the confiscation order was sought.

“(2) Its value is the market value of the property at that time.

(3) But if at that time another person holds an interest in the property its value, in relation to the person mentioned in subsection (1), is the market value of his interest at that time, ignoring any charging order under a provision listed in subsection (4).”

The provisions of subsection (4) are immaterial.

15

Therefore, applying the language of the statute, the question would arise, whether, at any material time, another person held an interest in the property.

16

At the time when the applicant received the relevant goods there were others who in law held an interest in the property, namely the true owners. They had title to the property. The interest of the applicant was the possessory title of someone who had either bought stolen goods or held them for another person. If section 79(3) is applied on its face, it is therefore arguable that the value to be assessed was the market value of the applicant's interest at the time. That was not how the confiscation application was presented.

17

It has, of course, often been commented that the provisions are draconian, but the question would arise whether they should be made more draconian by applying a more restricted construction to section 79(3). Put another way, the argument which might be advanced is that the purpose of this regime is confiscatory not compensatory. There is other legislation which provides for compensation. There is therefore justice in a confiscatory regime looking at what was the value to the recipient, in order to strip him of the benefit which he received, rather than the amount of the true owner's loss, which would be relevant to compensation.

18

That says enough, and probably more than enough, to identify the point.

19

We think that it would be wrong to proceed with the issue of sentence in isolation from the point on the confiscation proceedings, not least because if the applicant is wrong in his argument on the confiscation proceedings it might have some possible relevance to his argument on sentence that the effect of the order was significantly punitive in requiring him to pay substantially more than the value of the property to himself in circumstances where the property had, moreover, been recovered. For those reasons we will adjourn this appeal.

LORD JUSTICE TOULSON
20

Representation? Are you already covered?

21

Yes, thank you, my Lord, on this part of it. Curiously not on his application to renew against sentence, but I do have a representation order on the confiscation aspect of the case.

LORD JUSTICE TOULSON
22

Is there going to be a practical difficulty having a representation order for one but not the other?

23

No, in fact what I have actually done is to agree a private fee for the sentence aspect. I hope that is an appropriate way to proceed.

LORD JUSTICE TOULSON
24

Time estimate for the court. Hour and a half. Is that too long?

25

Yes.

LORD JUSTICE TOULSON
26

You say it is too long?

27

No.

28

Two hours including judgment.

LORD JUSTICE TOULSON
29

Yes, indeed. Now skeleton arguments.

30

Yes.

LORD JUSTICE TOULSON
31

How long—when is your client's current estimated release date?

32

That information I don't have. I do know that he is on day release for about three or four days a week.

LORD JUSTICE TOULSON
33

So really—

34

He has done eight months of two and a half years. He would, of course, be eligible for home detention curfew.

LORD JUSTICE TOULSON
35

So it ought to come on soon. Then you have got to get your tackle in order by getting your skeleton argument in and how long do you need for that? I think you may need to look a little more widely than simply the wording of the section. You may need to look at the history of the section and look at previous sections.

36

Yes.

LORD JUSTICE TOULSON
37

Which I certainly haven't done.

38

MR HURST:

No.

LORD JUSTICE TOULSON
39

You might even want to look at the explanatory notes to the Act. That won't take long. You will obviously want to look at authorities.

40

Yes.

LORD JUSTICE TOULSON
41

So to do that research and put in a proper skeleton argument, depending on your court commitments, you should be able to do it in a couple of weeks?

42

I would hope so.

LORD JUSTICE TOULSON
43

Do you need to see their skeleton before you prepare yours? I am anxious that we get this on before the end of term.

44

I would prefer that my learned friend does the hard work first and I simply adopt his hard work and respond.

MR JUSTICE BUTTERFIELD
45

You might agree with him.

46

I might agree with him.

LORD JUSTICE TOULSON
47

Right. If you get your skeleton off to them by Monday week, whatever that date is, 1st July. Seven days for you after that?

48

Thank you, my Lord.

LORD JUSTICE TOULSON
49

8th July. To be listed—can you also then, please, produce for the court—it would be help for our authorities and particularly if you are going to be looking at other bits of statute—produce a bundle for each member of the court with the relevant legislative material and authorities.

50

Yes.

51

Yes.

LORD JUSTICE TOULSON
52

And then we had better have it listed. ( Pause). To be listed this term and you get your clerks to be on to the office as soon as possible for any dates to avoid. I...

To continue reading

Request your trial
17 cases
  • R v Islam
    • United Kingdom
    • House of Lords
    • 10 juin 2009
    ...present case than the two authorities on "market value" which were there cited. 48 The Court of Appeal's recent decision in R v Rose [2008] EWCA Crim 239 further underlines the oddity of ignoring the black market value of drugs when assessing the benefit obtained by their importation. The ......
  • R v Ahmad and another
    • United Kingdom
    • Supreme Court
    • 18 juin 2014
    ...some detail, and approved some decisions of the Court of Appeal concerned with valuation of obtained property, in particular R v Rose [2008] 1 WLR 2113; [2008] EWCA Crim 239; and R v Ascroft [2003] EWCA Crim 2365; [2004] 1 Cr App R (S) 326. R v Mackle [2014] UKSC 5; [2014] 2 WLR 267 wa......
  • R v Mark Green
    • United Kingdom
    • House of Lords
    • 14 mai 2008
    ...given 1 March 2007, ECtHRR v Cuthbertson [1981] AC 470; [1980] 3 WLR 89; [1980] 2 All ER 401; 71 Cr App R 148, HL(E)R v Rose [2008] EWCA Crim 239; [2008] 1 WLR 2113; [2008] 3 All ER 315, CAR v Sharma [2006] EWCA Crim 16; [2006] 2 Cr App R (S) 416, CAAPPEAL from the Court of AppealThis was a......
  • R v GH
    • United Kingdom
    • Supreme Court
    • 22 avril 2015
    ...statutory offence under the Theft Act (see R (Wilkinson) v Director of Public Prosecutions [2006] EWHC 3012 (Admin) and R v Rose [2008] EWCA Crim 239, [2008] 1 WLR 2113, para 20). It is unlikely that the prosecution would fail to respect the view of the court in such a matter and it is u......
  • Request a trial to view additional results
2 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT