Jennings v Crown Prosecution Service
| Jurisdiction | UK Non-devolved |
| Judgment Date | 14 May 2008 |
| Neutral Citation | [2008] UKHL 29 |
| Court | House of Lords |
| Date | 14 May 2008 |
[2008] UKHL 29
HOUSE OF LORDS
Appellants:
Anthony Elleray QC
Scott Redpath
(Instructed by Hanman Associates)
Respondent:
Andrew Mitchell QC
Stephen Hellman
(Instructed by Crown Prosecution Service)
Ordered to Report
The Committee (Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell, and Lord Brown of Eaton-under-Heywood) have met and considered the cause Crown Prosecution Service v Jennings. We have heard counsel on behalf of the appellant and respondent.
This is the considered opinion of the Committee.
Mr Jennings (the appellant) appeals from the order of the Court of Appeal of 24 June 2005, dismissing his appeal from the refusal of Leveson J to discharge a restraint order made without notice by Forbes J under section 77(1) of the Criminal Justice Act 1988. The order prohibited him from removing any of his assets from England and Wales and disposing of or diminishing the value of any of his assets. There were the usual exceptions for ordinary living expenses and legal advice.
When the order was made, the appellant was awaiting trial with three others on a charge of conspiracy to defraud. The conspiracy was described by the prosecution as "an advance fee fraud". It was carried on through a company, UK Finance (Europe) Ltd, which had originally been in legitimate business selling second hand cars and arranging finance for the purchasers. The fraud charged took place between December 2000 and August 2001. The company advertised itself as a lender, targeting people with poor credit ratings. Applications for loans were made over the telephone. An administration fee of £70 was required in return for arranging a loan. But in fact the company had no money to lend, and no arrangements with any other source of finance to make loans, and no loans were ever made.
Some of the fees were paid into the company bank account and some were paid in postal orders which were cashed at a local post office. The sole director and controlling shareholder of the company was a co-defendant, Mr Russell Phillips, who pleaded guilty to the fraud. The appellant was neither a director nor a shareholder. Throughout the period of the conspiracy, he was an employee of the company and received a salary and other payments, but the prosecution case was that he too was a prime mover in the conspiracy.
The prosecution alleged that each of the conspirators had benefited to the tune of the total amount of moneys obtained from the fraud, calculated by the financial analyst employed by the police at £584,637.64. This sum was made up of £460,809.40, which had gone through the company's books, and £123,828.24, which was the value of postal orders cashed at a local post office. The appellant's argument was that, over the period of the conspiracy, he and his wife could not have received more than, say, £50,000, made up of salary, a payment from the company's loan account, and the postal orders which he had cashed "on several occasions" when Mr Phillips was away.
The other conspirators pleaded guilty. The appellant was tried between April and June 2005. He was convicted on 6 June 2005. His appeal against the restraint order was argued in April 2005 while the criminal trial was in progress. The Court of Appeal handed down judgment on 24 June 2005, after his conviction. He was sentenced to five years' imprisonment. Mr Phillips was sentenced to three years and four months' imprisonment, the equivalent of a five year sentence with the appropriate discount for a guilty plea. The trial judge must therefore have taken the view that their shares of responsibility for the fraud were roughly equivalent.
Since the appellant's conviction, the Crown has pursued the confiscation proceedings, still based on the original total figure but adjusted for inflation, in accordance with section 74(5)(a) of the 1988 Act. Those proceedings have been postponed pending the outcome of this appeal.
For purposes of this appeal the committee will treat so much of its opinion in R v May [2008] UKHL 28 as bears on this appeal as if it were incorporated in this opinion.
Restraint orders
The Hodgson Committee devoted Chapter 9 of its report, "The Profits of Crime and their Recovery" (1984), to pre-trial restraint and recommended (p 154, recommendation 29) that
"On the application of the police or prosecuting authority a high court judge should have the power to grant, on appropriate terms, an order freezing specific assets or the defendant's assets generally, if there is a prima facie case that he has committed an indictable offence and it appears to the court likely that on conviction the court of trial would impose a fine and or a compensation order totalling £10,000 or more."
Effect was given to this recommendation in sections 7-8 of the Drug Trafficking Offences Act 1986, and then in sections 25-26 of the Drug Trafficking Act 1994. Effect was also given in sections 76-77 of the Criminal Justice Act 1988, which added in section 82(2), ex abundanti cautela, that the power to make a restraint order should be exercised "with a view to making available for satisfying … any confiscation order that may be made in the defendant's case the value for the time being of realisable property held by any person by the realisation of such property". Thus a prospective confiscation order was not to be anticipated by dissipation of assets. Section 76 of the 1988 Act was amended by section 8(2) of the Proceeds of Crime Act 1995 so as to permit a restraint order to be made where, relevantly, proceedings had been instituted and the court was satisfied that there was reason to believe "that the proceedings may result or have resulted in, or that the application is made by reference to, a conviction of the defendant for an offence of a relevant description from which he may be, or has been, shown to have benefited". The provisions of both the...
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