R v John Reginald David Morgan and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 20 June 2008 |
| Neutral Citation | [2008] EWCA Crim 1323 |
| Docket Number | Case No: 200705013 B1 200704858 B1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 June 2008 |
[2008] EWCA Crim 1323
Lord Justice Hughes
Mr Justice Andrew Smith and
His Honour Judge Loraine- Smith (Sitting as a Judge of Thecourt of Appeal Criminal Division)
Case No: 200705013 B1 200704858 B1
T20050045. S20060143.
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CHELMSFORD CROWN COURT
HIS HONOUR JUDGE MITCHELL
ON APPEAL FROM BOURNEMOUTH CROWN COURT
HIS HONOUR JUDGE JARVIS
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C Coltart (instructed by Russell Jones and Walker) for the Appellant John Morgan
Mr D Walbank (instructed by Crown Prosecution Service) for the Crown
Mr I Wheaton (instructed by Andrews McQueen) for the Appellant Rosemary Bygrave
Mr S Ellacott (instructed by Crown Prosecution Service) for the Crown
Approved Judgment
Hearing dates : 5 TH AND 6 TH June 2008
We have heard together two applications for leave to appeal against confiscation orders because they raise similar questions about a limited class of cases, namely those where demonstrably (i) the defendant's crimes are limited to offences causing loss to one or more identifiable loser(s), (ii) his benefit is limited to those crimes, (iii) the loser has neither brought nor intends to bring any civil proceedings to recover the loss but (iv) the defendant either has repaid the loser, or stands ready willing and able immediately to repay him, the full amount of the loss.
The first case, Morgan, falls to be decided under the Criminal Justice Act 1988 (' CJA 1988'), as amended by the Proceeds of Crime Act 1995 ('the 1995 Act'). The critical provisions are section 71(1C) and 72(7). The second case, Bygrave, falls to be decided under the Proceeds of Crime Act 2002 (' POCA 2002'). The critical provisions are section 6(6), 13(5) & 13(6).
We draw attention to the fact that although the two critical sets of provisions here in question are in broadly similar terms, confiscation legislation has passed through a number of changes since it first appeared in the Drug Trafficking Offences Act 1986. Moreover, until 24 March 2003 when POCA 2002 came into force, there were parallel regimes, similar but different, for drugs cases on the one hand and non-drug offences on the other. It is essential that in any application for a confiscation order close attention is paid to the type and date of the offence(s) and to which of different statutory rules applies to the case.
That said, these two cases do have two important questions in common. After the amendments made by the 1995 Act, the making of a confiscation order under CJA 1988 became mandatory, rather than discretionary as it previously had been. But an exception was made where the victim of the offending had made, or intended to make, a civil claim to recover his or her loss. In that event, the confiscation order is discretionary. That position has been retained in POCA 2002. In the present two cases, the defendant either had repaid, or asserted that s/he stood prepared to repay, what had been stolen from the victim. That meant that there was no occasion for the victim to make a civil claim. In neither case is there any suggestion that the defendant has committed any crime other than those involved in the present convictions. Nor is there in either case any suggestion that the benefit of the defendant extends beyond the sum stolen from the identifiable victim, either because the defendant used the money in the meantime or for any other reason. The effect of the confiscation orders made is likely to be, in both these cases, that the defendant pays a great deal more than he would have been ordered to pay if he had left the victim to make a civil claim. Accordingly, the questions are:
i) in such a case is the making of a confiscation order mandatory if the Crown asks for it, even though it would have been discretionary if the defendant had chosen not to repay or to offer to repay, and the victim had made a civil claim ? and if so,
ii) what if any are the limits upon the Crown's power to decide to seek a confiscation order ?
For Morgan the relevant statute was the Criminal Justice Act 1988. Section 71 sets out the process for making a confiscation order. So far as material, it provides as follows:
“ 71
(1) Where an offender is convicted, in any proceedings before the Crown Court or a magistrates' court, of an offence of a relevant description, it shall be the duty of the court—
(a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or
(b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed,
to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.
(1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct.
(1B) Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then—
(a) determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and
(b) make an order under this section ordering the offender to pay that amount.
(1C) If, in a case falling within subsection (1B) above, the court is satisfied that a victim of any relevant criminal conduct has instituted, or intends to institute, civil proceedings against the defendant in respect of loss, injury or damage sustained in connection with that conduct—
(a) the court shall have a power, instead of a duty, to make an order under this section;
(b) subsection (6) below shall not apply for determining the amount to be recovered in that case by virtue of this section, and
(c) where the court makes an order in exercise of that power, the sum required to be paid under that order shall be of such amount, not exceeding the amount which (but for paragraph (b) above) would apply by virtue of subsection (6) below, as the court thinks fit.
…….
(6) Subject to subsection (1C) above the sum which an order made by a court under this section requires an offender to pay shall be equal to—
(a) the benefit in respect of which it is made; or
(b) the amount appearing to the court to be the amount that might be realised at the time the order is made,
whichever is the less.”
Then, in section 72, the Act provides for the inter-relation of confiscation and compensation orders. First, by s 72(5)(b) it stipulates that the confiscation order shall be left out of consideration in deciding whether or not to make a compensation order, though it must, by section 72(5)(a), be taken into account before imposing a fine. Then, by section 72(7), it provides as follows:
“(7) Where—
(a) a court makes both a confiscation order and an order for the payment of compensation under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 against the same person in the same proceedings; and
(b) it appears to the court that he will not have sufficient means to satisfy both the orders in full,
it shall direct that so much of the compensation as will not in its opinion be recoverable because of the insufficiency of his means shall be paid out of any sums recovered under the confiscation order.”
Although POCA 2002 alters the law of confiscation in a number of important areas, its provisions relevant to the present cases are very similar to those of the CJA 1988. Sections 6 and 7 set out the process for making a confiscation order. So far as material, they provide as follows:
“ 6 Making of order
(1) The Crown Court must proceed under this section if the following two conditions are satisfied.
(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 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).
(3) The second condition is that—
(a) the prosecutor…. asks the court to proceed under this section, or
(b) the court believes it is appropriate for it to do so.
(4) The court must proceed as follows—
(a) it must decide whether the defendant has a criminal lifestyle;
(b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;
(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.
(5) If the court decides under subsection (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.
(6) But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct.
………
(1) The recoverable amount for the purposes of section 6 is an amount equal to the defendant's benefit from the conduct concerned.
(2) But if the defendant shows that the available amount is less than that benefit the...
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