R v Clarke (Linda)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 20 May 1982 |
| Neutral Citation | [1982] EWCA Crim J0520-14 |
| Judgment citation (vLex) | [1982] EWCA Crim J0520-1 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 1730/C/82 |
| Date | 20 May 1982 |
[1982] EWCA Crim J0520-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Lord Justice Donaldson
and
Mr. Justice Skinner
No. 1730/C/82
MRS. H. KENNEDY appeared as Counsel on behalf of the Appellant.
MR. MOSES appeared as amicus curiae.
This is an appeal by Linda Vera Clarke and it arises in the following circumstances. On 2nd April of this year in the Crown Court at St. Albans she pleaded guilty to conspiracy to defraud and was sentenced to 18 months' imprisonment, of which six months were to be served immediately, and the remaining 12 months held in suspense; 35 other offences being taken into consideration. She now appeals against that sentence by leave of the Single Judge.
The facts of the case were that in June, July and August, 1981 this woman used stolen cheque-books and stolen credit cards to obtain property, the vast bulk of which was video tapes, from various concerns in and around St. Albans and district and also in London. She was eventually arrested in Charing Cross Road in London in August, 1981 and found to be using a stolen Access card. She was searched, as also was her home, and a number of documents were found, including Access cards in names other than her own. She was released on bail.
Plainly, she had been used by a sophisticated organisation as the front operator in this swindle. Although she handled the large sum of £12,000, she derived very little benefit for herself. As happens so often in this type of fraud, those who derived most benefit escaped the clutches of the law. She committed this fraud because she was going through great suffering and financial hardship in her domestic affairs. Another result of that was that she had also defrauded the Department of Health and Social Security by failing to declare her earnings, which would have been deducted from the social security payments made to her. For that she was sentenced to the short term of six weeks' imprisonment after the end of the credit fraud frauds.
The appellant is not the usual kind of feckless woman who sometimes commits this type of fraud. One passage from her social inquiry report reads:
"Mrs. Clarke would appear to be a hard worker and apart from the obvious breaks to bear children she has normally been in full or part-, time employment. Her main employment has been secretarial, mostly legal, but she has had other employments, including four months "in the Army, which she didn't like. She joined it to leave home, but didn't like the discipline, as it would appear she has been fairly headstrong."
It then sets out the matrimonial and emotional difficulties which this unfortunate lady has suffered, and continued:
"Mrs. Clarke's financial problems appear to be great. Her rent is about £40 per week and she is over £400 in arrears. She owes £800 to the L.E.B., £350 to SEGAS and has H.P. commitments of 60 per month for a washing machine and a fridge, £5 a week for a Christmas club and £10 a week for insurance. She would like to take employment as a night telephonist with part-time secretarial work, but would find it difficult to keep her family and meet her debts. Mrs. Clarke fully admits her last offence. She tells me one of the reasons she became "in debt was, she claims, paying (a man's) motoring fines and other debts.
"Mrs. Clarke is, I understand, pleading guilty to the offences before this court. It would seem that the offence was the usual 'kiting' offence, where the vulnerable woman is used to perpetrate the crime and is paid for her actions. However it is the woman, and not the unnamed person (usually male) who is caught and takes the consequences, whilst the other person decamps with the goods. The court will appreciate that in similar cases Mrs. Clarke and women like her are the last operatives in a long line of criminal activity which starts with the sometimes violent removal of women's handbags."
This Court accepts that as a true picture of the circumstances of this case. But for the term of six weeks' imprisonment that the appellant has already suffered, a partly suspended sentence would have been entirely correct and apt.
But the appellant has already served six weeks' imprisonment, albeit for a different offence, to/ mark the disapproval of the public, and accordingly we think that the correct course is to suspend the sentence is whole and not in part.
Before turning to the formal position of the case it is right that we should say two things. First of all, a preliminary matter has been raised with which we must deal and in respect of which we have had the advantage of the help of Mr. Moses as amicus curiae. The problem has been troubling courts up and down the country – and this case gives this Court the first opportunity to give a ruling upon it – whether s. 47 of the Criminal Law Act 1977, which came into force on 29th March of this year by virtue of the Criminal Law Act 1977 (Commencement No. 11) Order 1982, applies to cases where the criminal offence was committed on a date before 29th March, 1982. Section 47 (1), which is the material provision, reads:
"Where a court passes on an adult a sentence of imprisonment for a term of not less than six months and not more than two years, it may order that, after he has served part of the sentence in prison, the remainder of it shall be held in suspense."
The answer to the question which is posed depends upon the interpretation of the transitional provisions which are contained in Schedule 14 of the Act, para. 5-of which reads:
"Except as provided in paragraph 3 above a provision of this Act (other than section 29 or any provision mentioned in paragraph 4 above) which relates to the punishment by way of fine or imprisonment for any offence shall not affect the punishment for an offence committed before that provision comes into force." It is suggested that those words prevent a court from partly suspending a sentence imposed for an offence committed before the Act came into force on 29th March of this year. The argument is that s. 47 by its wording relates to "punishment by way of imprisonment for any offence", and thus cannot affect the punishment for any offence committed before 29th March, 1982, as the appellant's offences plainly were.
Section 47, however, as Mr. Moses has helpfully pointed out, is something of an oddity in the Act. The 1977 Act contains a number of different subjects. Part I deals with conspiracy, as the heading states. Part II, which is ss. 6 to 13, deals with offences relating to entering and remaining on property, again as the heading shows. Part III deals with criminal procedure, penalties, et cetera, again as the heading shows. In Part II there is a whole group of sections, from s. 27 to s. 33, which deal specifically with penalties under that particular heading. Some maximum penalties are increased and some are decreased. Section 47 does not appear under the heading of penalties at all, but appears under the heading "other provisions". It does not deal with penalties for specific offences or indeed with any particular type of offence.
It seems clear to us that para. 5 of Schedule 14 was aimed at those sections under the heading of penalties which increase maximum sentences, and that it was designed simply to ensure that no one was given a greater sentence than that which was available in respect of his offence at the time he committed it. It would not, we think, have occurred to the draftsman that the Schedule would affect the coming into operation of s. 47. The reason is this: the court which is taking advantage of the wording of s. 47 must first of all ask itself whether a custodial sentence is necessary, and, if so, whether it can be suspended in toto. It is only in the event of an immediate custodial sentence being required that s. 47 will come into play. The effect of s. 47 is to mitigate punishment, not to increase it. Consequently s. 47 is not a provision of the Act which relates to punishment by way of imprisonment, but one which relates to the opposite, namely, the reduction or mitigation of punishment, and accordingly is not affected by Schedule 14.
That is sufficient to decide this point of the case.
But Mr. Moses has drawn our attention to another argument which, if correct, leads to the same conclusion. This argument appears in a judgment delivered by Glidewell J. in the Crown Court at Leeds on 7th May, 1982. The learned judge reached the same conclusion as this Court has reached, but he based his decision primarily on this different basis, namely, the wording of s. 47 (8) of the Criminal Law Act 1977, viz.:
"This section and paragraphs 1 to 6 of Schedule 9 to this Act and the Powers of Criminal Courts Act 1973 shall be construed and have effect as if this section and those paragraphs of the Schedule were contained in that Act."
In his judgment Glidewell J. said on this matter:
"Now the general provisions relating to the nature of penalties which may be imposed by criminal courts upon conviction for criminal offences are contained in the Powers of Criminal Courts Act 1973, a consolidating Act which contains groups of sections dealing with probation and discharge, community service orders, imprisonment, borstal training and detention and then six sections, 22 to 27, dealing with suspended sentences of imprisonment. Section 47 is clearly a section of the same nature as those various provisions in the 1973 Act and of a different kind from any of the other provisions of the 1977 Act. It is, therefore, "logical to find that s. 47 (8) of the Criminal Law Act 1977 reads…. Mr. Harrison for the prosecution...
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