Crown Prosecution Service (Nottinghamshire) v Rose
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TOULSON,MR JUSTICE BUTTERFIELD,Lord Justice Richards |
| Judgment Date | 21 February 2008 |
| Neutral Citation | [2007] EWCA Crim 1526,[2008] EWCA Crim 239 |
| Docket Number | (1) Case No: 200606278-B5,No: 200605827/A9, 200606278/B5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 February 2008 |
[2007] EWCA Crim 1526
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
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
MR M HURST appeared on behalf of the APPELLANT
MR T S LODY appeared on behalf of the CROWN
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.
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.
He seeks leave to appeal against that sentence following refusal by the single judge.
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.
The prosecution appeal against that order which they submit should have been for a substantially greater amount.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Therefore, applying the language of the statute, the question would arise, whether, at any material time, another person held an interest in the property.
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.
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.
That says enough, and probably more than enough, to identify the point.
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.
Representation? Are you already covered?
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.
Is there going to be a practical difficulty having a representation order for one but not the other?
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.
Time estimate for the court. Hour and a half. Is that too long?
Yes.
You say it is too long?
No.
Two hours including judgment.
Yes, indeed. Now skeleton arguments.
Yes.
How long—when is your client's current estimated release date?
That information I don't have. I do know that he is on day release for about three or four days a week.
So really—
He has done eight months of two and a half years. He would, of course, be eligible for home detention curfew.
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.
Yes.
Which I certainly haven't done.
MR HURST:
No.
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.
Yes.
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?
I would hope so.
Do you need to see their skeleton before you prepare yours? I am anxious that we get this on before the end of term.
I would prefer that my learned friend does the hard work first and I simply adopt his hard work and respond.
You might agree with him.
I might agree with him.
Right. If you get your skeleton off to them by Monday week, whatever that date is, 1st July. Seven days for you after that?
Thank you, my Lord.
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.
Yes.
Yes.
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...
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