R v Anderson (Keith)

JurisdictionEngland & Wales
JudgeLORD JUSTICE ORMROD
Judgment Date15 November 1977
Judgment citation (vLex)[1977] EWCA Crim J1115-1
CourtCourt of Appeal (Criminal Division)
Docket NumberNo. 5536/A/76
Date15 November 1977
Regina
and
Keith Anthony Anderson

[1977] EWCA Crim J1115-1

Before:

Lord Justice Ormrod

Mr. Justice Thompson

and

Mr. Justice Jupp

No. 5536/A/76

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

MR. K. BAGNALL QC and MR. J. FOY appeared for the Appellant.

MISS A. GODDARD appeared for the Crown.

MR. P. MOTT appeared for the Director of Public Prosecutions.

LORD JUSTICE ORMROD
1

In addition to the sentence of imprisonment, with which this court dealt yesterday, in this case, the learned Judge below, after some considerable discussion with counsel, decided to make a criminal bankruptcy order under what is now section 39 of the Powers of Criminal Courts Act, 1973. That was a course which at the time, Mr. Bagnall, who was appearing for the defence, agreed with in preference to a compensation order being made. The learned Judge then went in considerable detail into the background of criminal bankruptcy orders, and was at great pains to make sure that the criminal bankruptcy order which he intended to make should be factually right.

2

It was accepted in the course of that discussion that the total amount involved in this case – and I use that phrase deliberately – was of the order of £29,000, although in fact it was subsequently reduced to a figure of about £26,000, for reasons which do not matter so far as this judgment is concerned, and the court proceeded on that footing. Difficulties then arose when it came to drawing the actual order. Two outstanding difficulties have been brought to the attention of this court. The first one, which is the important one, goes directly to the jurisdiction to make a criminal bankruptcy order, and in those circumstances, in spite of the fact that there is an express statutory provision which precludes a right of appeal against criminal bankruptcy orders, it is plain that where the suggestion is that the order is a nullity, this court can adjudicate upon that matter as has been held in relation to other similar problems. So no question arises so far as this court's jurisdiction is concerned, to deal with the problem.

3

The problem which has arisen is that the aggregate sum involved in the actual counts in the indictment in this case does not amount to the minimum figure fixed by section 39(1). That is the figure of £15,000. The total of the items or counts which were specifically charged, and of which the Appellant was specifically found guilty, amount to £7,112 and therefore is less than £15,000. So, the first question here is: Had the court below jurisdiction, in the sense of power, to make a criminal bankruptcy order? That takes us to section 39(1) of the 1973 Act, which is the jurisdiction section. That section reads as follows: "Where a person is convicted of an offence before the Grown Court and it appears to the court that – (a) as a result of the offence, or of that offence taken together with any other relevant offence or offences, loss or damage (not attributable to personal injury) has been suffered by one or more persons whose identity is known to the court; and (b) the amount, or aggregate amount, of the loss or damage exceeds £15,000; the court may, in addition to dealing with the offender in any other way …. make a criminal bankruptcy order against him in respect of the offence or, as the case may be, that offence and the other relevant offence or offences."

4

In subsection (2) "other relevant offence or offences" is defined as meaning: "…an offence or offences of which the person in question is convicted in the same proceedings or which the court takes into consideration in determining his sentence." The crux of the matter, therefore, lies in the meaning to be given to the words "or which the court takes into consideration in determining his sentence." There are two points of view which have been argued most helpfully by all three counsel in this case, and we are indebted to them all for the assistance they have given in what is undoubtedly a difficult point.

5

Before saying anything about the construction of that phrase in this section, it is wise to bear in mind the particular nature of this section and those immediately following it which deal with criminal bankruptcy orders, and for this reason: that this section and the earlier one, section 35, dealing with compensation are really attempts to bridge a gap which has always existed, and has never been bridged before, between the criminal law, or criminal code if one uses a more general phrase, and the civil code. These two sections are clearly designed by Parliament to make it easier and cheaper and more practicable in certain cases to bring into the criminal procedure an element of civil remedy, or alternatively to bring some part of the criminal law into the civil procedure. So far as section 39 is concerned, it creates this new concept of a criminal bankruptcy order, and what Parliament has in effect done, as we understand it, is to create a new kind of act of bankruptcy. So, when this section has to be construed, it would not be right, in our view, to construe it strictly as if it were a criminal statute with the various traditional methods and restrictions on construction of such a statute. We are construing here what is essentially a bridging section, designed primarily to simplify procedure.

6

With that in mind one comes to consider the phrase, "the offences which the court takes into consideration." It has been pointed out, quite rightly, that this phrase is first to be found, as far as researches go, in the Criminal Justice Act, 1972, and it was that Act which introduced for the first time criminal bankruptcy orders, and also introduced the concept of compensation orders, and at the same time significantly-extended the powers of the court in relation to restitution orders under section 28 of the Theft Act. In all those three contexts the Criminal Justice Act, 1972, uses this same phrase which is to be found in sections 6 and 7, and in the compensation section also. The question is: Does that phrase mean offences taken into consideration in the technical procedural sense in which it is so often used, which can be shortly indicated by the initials TIC, or has it got a wider significance?

7

There are arguments both ways on this, but if this phrase is read literally as it stands in the statute, it means what it says, simply offences which the court has taken into consideration in determining the sentence. There is no doubt whatever that in this case the court below, in pronouncing a sentence of six years' imprisonment, which we yesterday reduced to four, unquestionably ana indeed expressly took into account the fact that the total sum involved in the dishonesty was of the order of £26,000, far in excess of the total of the specific charges which had been proved. Is that right, or is that wrong? Well, the first observation to be made is that the whole idea of taking into consideration other offences is a matter of practice and not of statute. That is made perfectly clear by Archbold and by various decisions of this court in cases to which it is not necessary to refer. For various good practical reasons the courts have worked out a procedure to be followed in most of these cases; the procedure of making out a list of specific charges outstanding and submitting the list to the accused person, and asking him...

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