R v Aloke Varma and Others
| Jurisdiction | England & Wales |
| Judge | Lady Justice Rafferty |
| Judgment Date | 28 November 2012 |
| Neutral Citation | [2012] EWCA Crim 2733,[2010] EWCA Crim 1575 |
| Docket Number | Case No: 2009/05112/D4 (1) 2009/05038/B3 (3) 2009/03766/C1 (4),No. 2009/03766/C1, 2009/06451/D1 & 2009/05038/B3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 28 November 2012 |
[2010] EWCA Crim 1575
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BRADFORD
ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
ON APPEAL FROM THE CROWN COURT AT BRISTOL
ON APPEAL FROM THE CROWN COURT AT ISLEWORTH
His Honour Judge Durham Hall (1)
Mr Recorder Asif QC (2)
His Honour Judge Ticehurst (3)
His Honour Judge Kathuda (4)
Before: The Lord Chief Justice of England and Wales
Lord Justice Goldring
Mrs Justice Rafferty
Mr Justice Wilkie
and
Mr Justice King
Case No: 2009/05112/D4 (1)
2009/06451/D1 (2)
2009/05038/B3 (3)
2009/03766/C1 (4)
Mr H Southey QC and Mr A Nadim for the Applicant (1)
Mr H Southey QC and Mr M Singh for the Applicant (2)
Mr H Southey QC and Mr S Wood for the Applicant (3)
Mr H Southey QC and Mr R Hallowes for the Applicant (4)
Mr D Perry QC and W Hays for the Crown
Hearing dates: 10 th June 2010
The Lord Chief Justice of England and Wales:
These four otherwise unconnected applications for leave to appeal against sentence require extensions of time and raise an identical question about the jurisdiction of the Crown Court to make confiscation orders when the sentencing decision involves an absolute or conditional discharge. Such orders were made in each of the present cases: in essence the basis of the application is that following the decision of this court in R v Clarke [2009] EWCA Crim 1074 they were wrongly made. Until that decision, the power of the Crown Court to make a confiscation order in these circumstances had not been questioned. The issue had however never been addressed in this court. In Clarke the principle was described in unequivocal terms:
“…the Crown Court has no power to make a confiscation order against a defendant following conviction for an offence if he or she receives an absolute or conditional discharge for that offence”.
The confiscation orders made in each of the present applications contravened this statement of principle.
The applications are opposed. If the principle identified in Clarke is correct, these confiscation orders should not have been made. What however is challenged is the decision in Clarke. It is said by Mr David Perry QC, for the respondent, to have been made per incuriam. It is not binding, and we should therefore decide that the confiscation orders were properly made and dismiss the applications. Mr Perry further suggested that extensions of time were inappropriate in the context of what are described as “change of law” principles, but this is a separate, and in the present context, insignificant aspect of the argument.
The facts of Clarke were very simple. He pleaded guilty to concealing criminal property contrary to section 327 of the Proceeds of Crime Act 2002. He was conditionally discharged for a period of 2 years under section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act). On 19 th July 2007 he was made subject to a confiscation order in the sum of £1055.00 under section 6 of the Proceeds of Crime Act 2002 (the 2002 Act). He was ordered to pay within 3 months or to serve 3 months' imprisonment in default. He sought leave to appeal against sentence. Leave was granted on 19 th July 2008 and the court directed that counsel should provide a detailed agreed note of the legislative history relating to orders for absolute discharge and conditional discharge (which for convenience we shall describe hereafter as orders for discharge). A seemingly comprehensive note was prepared in November 2008. Judgment was reserved and handed down on 12 th June 2009. Clarke's appeal was allowed. No application was made for the court to certify a point of general public importance, with a view to a possible appeal to the Supreme Court.
While Clarke was under consideration in the Court of Appeal, Aloke Varma appeared before the Crown Court at Isleworth before His Honour Judge Katkhuda on 27 th November 2008 and pleaded guilty to 3 counts of fraudulent evasion of excise duty. On 15th January 2009 he was made subject to a conditional discharge for 2 years. On 3rd April 2009, in confiscation proceedings, he was found by the judge to have benefited from criminal conduct in the sum of £7257.86. The available amount for the purposes of confiscation order was assessed at £1500, to be paid by 31 st March 2010, with 45 days imprisonment in the event of default.
Varma's criminality can be readily summarised. Between June 2005 and July 2006 he was warned on 5 occasions by Her Majesty's Customs and Excise that he might be prosecuted if he was caught importing tobacco products illegally. He was caught once in October 2007 and twice in April 2008 smuggling tobacco products on flights from Spain back into this country. The total amount of duty avoided was £5307.86. When the judge passed sentence he decided that because Varma suffered from facial neuralgia and was subject to an underlying psychological condition a merciful course would be appropriate. In effect, therefore, apart from the order for conditional discharge, held over Varma for a 2 year period, the judge decided to deprive him of the available financial profits of his criminal activity.
It is perhaps worth highlighting that the orders made by Judge Katkhuda represented what appeared to be a sensible sentencing option. While the conditional discharge provided an appropriate method of ensuring the continuing good behaviour of the defendant, the confiscation order deprived him of the profits of his crimes, to the extent of the amount available for recovery. If Clarke is right that option is not available. In the context of the impact of the decision in Clarke, it was pointed out in R v Wilkinson [2009] EWCA Crim 2733 that if the court is not permitted to make an confiscation order together with an order for conditional discharge, it may then become necessary to impose a different, more punitive sentence, rather than the order for conditional discharge, because without the order for confiscation, the defendant's criminality would not be sufficiently addressed. We agree, and endorse the proposition that there are cases in which the combination of an order for discharge with a confiscation order represents an appropriate sentencing decision. Indeed, whatever other order may be appropriate, there can be nothing remarkable about the proposition that an individual convicted of acquisitive crime should be deprived of its benefit. In broad general terms, therefore, the principle identified in Clarke is, to put it no higher, surprising. The question is whether the legislative structures require it.
In view of the conclusion we have reached, it is unnecessary for the facts relating to the remaining applications to be narrated. At the end of the judgment we shall explain why.
The judgment in Clarke is 78 paragraphs long. It sets out the relevant legislative provisions relating to the powers and duties of the court in relation to confiscation orders from its first creation in the Drug Trafficking Offences Act 1986. It also sets out the long history of the legislative provisions relating to absolute and conditional discharges, beginning in 1847, together with all the relevant decisions of this court which bear on the jurisdiction to attach punitive orders to orders for discharge. The court was not ignorant of any legislative provision or any relevant judicial authorities.
Mr Perry sought to suggest that the court might have taken a different view if it had been aware of the international obligations of the United Kingdom. He drew our attention to the Council Framework Decision, 26th June 2001, On Money Laundering, the Identification, Tracing, Freezing, Seizing and Confiscation of Instrumentalities and the Proceeds of Crime, the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime and Financing of Terrorism, and Article 3 in particular, as well as the Scheme relating to Mutual Legal Assistance in Criminal Matters within the Commonwealth, as amended by law ministers in April 1990, November 2002 and October 2005 and the European Convention on Mutual Assistance in Criminal Matter. In addition he highlighted the observations of the European Court of Justice in the criminal proceedings against Pupino [2006] QB 83 and the decision of the House of Lords in Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31. He identified the importance of compliance with our Convention and Treaty obligations arising from the Confiscation of the Instrumentalities and Proceeds of Crime, and the Framework Decision that member States should establish value confiscation regimes, at any rate where the value of the proceeds of crime exceeds €4000.
Without questioning the importance of complying with these obligations, it seems to us clear that the result of even a cursory examination of the statutory provisions currently in force in this jurisdiction demonstrates the clear recognition of the importance attached to the statutory regime which governs confiscation of the proceeds of crime. This disposes of any suggestion that the confiscation system represents an inadequate response to our international obligations. Reference to them in the course of argument would not have persuaded the court in Clarke to the conclusion advanced by Mr Perry. Accordingly these applications cannot be refused on the basis that the decision in Clarke should be treated as per incuriam because the court was not invited to and did not address our international obligations.
Mr Perry relied on a variety of submissions to make...
To continue reading
Request your trial
- R v Aloke Varma and Others
-
R v J (JF)
...of reasons which permit us to depart from it upon the well established principles set out most recently in R v Magro, Varma and others [2011] QB 398. i) The offences were not the same in law, as they must be if the plea of autrefois is to be available. We have already set out our reasons fo......
-
Minter v Chief Constable of Hampshire Constabulary Secretary of State for the Home Department (Interested Party)
...1 All ER 708, CAR v Broad [2007] EWCA Crim 2146, CAR v Longworth [2006] UKHL 1; [2006] 1 WLR 313; [2006] 1 All ER 887, HL(E)R v Magro [2010] EWCA Crim 1575; [2011] QB 398; [2010] 3 WLR 1694; [2011] 2 All ER 935; [2010] 2 Cr App R 231, CAR (L) v Comr of Police of the Metropolis (Secretary of......
-
R v Harvey
...confiscation proceedings in such cases – as to which, we note the observations of Lord Phillips of Worth Maltravers and Lord Mance in R v Varma [2012] UKSC 42; [2013] 1 AC 463, paras 60–65 — it is questionable whether the same approach can be adopted in relation to VAT. Since VAT is a tax......
-
ENLARGED PANELS IN THE COURT OF APPEAL OF SINGAPORE
...in Law 87; and Stephen Gageler, “Why Write Judgments?” (2014) 36 Syd L Rev 189 at 193–196. 128 [2004] QB 118 at [38]. See also R v Magro [2011] QB 398 at [30]. 129 [1991] 2 NZLR 150 at 156–157 and 168 (discussed in R v Chilton [2006] 2 NZLR 341 at [100]). 130 [2018] AC 61. 131 [2017] AC 467......