R v Clarke
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER |
| Judgment Date | 12 June 2009 |
| Neutral Citation | [2009] EWCA Crim 1074 |
| Docket Number | Case No: 2007/04310/C2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 12 June 2009 |
[2009] EWCA Crim 1074
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT MANCHESTER
HH Judge Lyon
Before: Lord Justice Hoopermrs Justice Cox
And
The Recorder Of Nottingham (his Honour Judge Stokes Qc)
Case No: 2007/04310/C2
T 20060990
Mr R Butcher for the Appellant
Mr Graham Knowles for the Respondent
Hearing date: 11 July 2008
The only issue in the appeal concerns the confiscation order. The appellant submits that a Crown Court has no power to make 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 sentencing judge decided that the Crown Court has such a power. He made a confiscation order in the sum of £1500, which the appellant now appeals.
The appellant pleaded guilty to concealing criminal property contrary to section 327 of the Proceeds of Crime Act 2002 and was conditionally discharged for a period of two years pursuant to section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”). On 19 July 2007 he was made subject to a confiscation order in the sum of £1,500.00 pursuant to section 6 of the Proceeds of Crime Act 2002 (“the 2002 Act”). He was ordered to pay within 3 months or to serve three months' imprisonment in default.
Having given leave to appeal and heard argument, we asked counsel to lodge an agreed note of the history of sections 12 and 14 of the 2000 Act within 28 days. In fact Mr Knowles for the respondent shouldered the not inconsiderable burden of preparing the note and we are very grateful to him. The note sets out in great detail the history of sections 12 and 14, a history with which Mr Butcher agrees. For various understandable reasons the note did not reach the court until November.
Relevant statutory provisions
Section 12 of the 2000 Act, as amended, provides:
(1) Where a court by or before which a person is convicted of an offence … is of the opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment, the court may make an order either—
(a) discharging him absolutely; or
(b) if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding three years from the date of the order, as may be specified in the order.
(2) …
(3) An order discharging a person subject to such a condition as is mentioned in sub-section (1)(b) above is in this Act referred to as an “order for conditional discharge”; and the period specified in any such order is in this Act referred to as “the period of conditional discharge.
(4) …
(5) If (by virtue of section 13 below) a person conditionally discharged under this section is sentenced for the offence in respect of which the order for conditional discharge was made, that order shall cease to have effect.
(6) …
(7) Nothing in this section shall be construed as preventing a court, on discharging an offender absolutely or conditionally in respect of any offence, from making an order for costs against the offender or imposing any disqualification on him or from making in respect of the offence an order under section 130, 143 or 148 below (compensation orders, deprivation orders and restitution orders).
It will be noted that sub-section (7) does not include a reference to confiscation orders, although by the year 2000 there had, since 1986, been provision for making confiscation orders.
Section 14 of the 2000 Act provides:
(1) Subject to sub-section (2) below, a conviction of an offence for which an order is made under section 12 above discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under section 13 above.
(2) Where the offender was aged 18 or over at the time of his conviction of the offence in question and is subsequently sentenced (under section 13 above) for that offence, sub-section (1) above shall cease to apply to the conviction.
(3) Without prejudice to sub-sections (1) and (2) above, the conviction of an offender who is discharged absolutely or conditionally under section 12 above shall in any event be disregarded for the purposes of any enactment or instrument which—
(a) imposes any disqualification or disability upon convicted persons; or
(b) authorises or requires the imposition of any such disqualification or disability.
(4) Sub-sections (1) to (3) above shall not affect—
(a) any right of an offender discharged absolutely or conditionally under section 12 above to rely on his conviction in bar of any subsequent proceedings for the same offence;
(b) the restoration of any property in consequence of the conviction of any such offender; or
(c) the operation, in relation to any such offender, of any enactment or instrument in force on 1st July 1974 which is expressed to extend to persons dealt with under section 1(1) of the Probation of Offenders Act 1907 as well as to convicted persons.
(5) In sub-sections (3) and (4) above—
“enactment” includes an enactment contained in a local Act; and
“instrument” means an instrument having effect by virtue of an Act.
(6) Sub-section (1) above has effect subject to section 50(1A) of the Criminal Appeal Act 1968 and section 108(1A) of the Magistrates' Courts Act 1980 (rights of appeal); and this sub-section shall not be taken to prejudice any other enactment that excludes the effect of sub-section ( 1) or (3) above for particular purposes.
(7) Without prejudice to paragraph 1(3) of Schedule 11 to this Act (references to provisions of this Act to be construed as including references to corresponding old enactments), in this section—
(a) any reference to an order made under section 12 above discharging an offender absolutely or conditionally includes a reference to an order which was made under any provision of Part I of the Powers of Criminal Courts Act 1973 (whether or not reproduced in this Act) discharging the offender absolutely or conditionally;
(b) any reference to an offender who is discharged absolutely or conditionally under section 12 includes a reference to an offender who was discharged absolutely or conditionally under any such provision.
Section 6(1) of the 2002 Act, as amended, provides:
The Crown Court must proceed under this section if the following two conditions are satisfied.
The second condition can be ignored for present purposes. The first condition is set out in sub-section (2), which provides:
(2) The first condition is that a defendant falls within any of the following paragraphs—
(a) he is convicted of an offence or offences in proceedings before the Crown Court;
(b) he is committed to the Crown Court for sentence in respect of an offence or offences under section 3, 4 or 6 of the [Powers of Criminal Courts (Sentencing)] Act;
(c) he is committed to the Crown Court in respect of an offence or offences under section 70 below (committal with a view to a confiscation order being considered).
In so far as section 2(b) is concerned, section 3 of the 2000 Act gives a magistrates' court the jurisdiction to commit for sentence “where on the summary trial of an offence triable either way a person aged 18 or over is convicted of the offence.” Section 4 of the 2000 Act provides for committal for sentence on indication of a guilty plea to offence triable either way. The section envisages the magistrates' court proceeding as if section 9(1) of the Magistrates' Courts Act 1980 were complied with and as if he had pleaded guilty under it and the court had convicted him of the offence. Section 6 of the 2000 Act gives further power to commit to the Crown Court for sentence a person convicted of a summary offence. Section 5 of the 2000 Act provides that where an offender is committed by a magistrates' court for sentence under section 3 or 4 above, the Crown Court shall inquire into the circumstances of the case and may deal with the offender in any way in which it could deal with him if he had just been convicted of the offence on indictment before the court.
In so far as section 2 (c) is concerned, section 70 gives the magistrates' court the power to commit the defendant to the Crown Court with a view to a confiscation order being made and, if it does so, the Crown Court will also sentence the defendant (see section 71). The power to commit arises, by virtue of section 70(1) if—
(a) a defendant is convicted of an offence by a magistrates' court, and
(b) the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 6.
Sub-section (5) of section 6 of the 2002 Act provides:
If the court decides under sub-section (4)(b) or (c) that the defendant has benefited from the conduct referred to it must—
(a) decide the recoverable amount, and
(b) make an order (a confiscation order) requiring him to pay that amount.
Section 13 provides:
(1) If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned.
(2) The court must take account of the confiscation order before—
(a) it imposes a fine on the defendant, or
(b) it makes an order falling within subsection (3).
(3) These orders fall within this subsection—
(a) an order involving payment by...
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