R v Saville
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 24 January 1980 |
| Neutral Citation | [1980] EWCA Crim J0124-7,[1980] EWCA Crim J0124-2,[1980] EWCA Crim J0124-8 |
| Judgment citation (vLex) | [1980] EWCA Crim J0124-1 |
| Docket Number | No. 4177/B/78 |
| Court | Court of Appeal (Criminal Division) |
| Date | 24 January 1980 |
[1980] EWCA Crim J0124-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Widgery)
Lord Justice Bridge
and
Mr. Justice Woolf
No. 4177/B/78
MR. R. A. BARRETT appeared on behalf of the Appellant.
MR. M. BRODERICK appeared on behalf of the Crown.
On 26th April 1973 three indictments had been preferred against the appellant, Peter Davies Saville. They were in respect of acts of dishonesty done when he was in a position of trust. But he pleaded guilty to the charges which arose so far as our case today is concerned, and he was sentenced to prison for a substeintial period and a criminal bankruptcy order was made in respect of him in the sum of £35,000. Thanks to counsel's economy of language, we are not bound to look into those background matters today, because the sole argument is concerned with the £35,000.
Before I deal with the facts of the matter, it will be convenient to look briefly at the statutory provisions under which that power to make criminal bankruptcy orders was conferred. The particular authority is in sections 39 and 40 of the Powers of Criminal Courts Act 1973. Section 39(1) reads:
"Where a person is convicted of an offence before the Crown 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 (but not if it makes a compensation order against him), make a criminal bankruptcy order against him in respect of the offence or, as the case may bo, that offence and the other relevant offence or offences."
Subsection (3) imposes certain obligations upon a court when making a criminal bankruptcy order. By section 39(3)(a)"A criminal bankruptcy order shall specify (a) the amount of the loss or damage appearing to the court to have resulted from the offence or, if more than one, each of the offences". Other similar provisions are made in regard to specifying persons. Those are not of materiality in this case.
The whole argument on behalf of the appellant is derived from the fact that under section 39(3)(a) there was an obligation to specify the amount of loss or damage, and if it was more than one offence, each of the offences.
If one goes to the Second Schedule of the same Act, it is possible to see the general pattern in which criminal bankruptcy orders fit into the general law of bankruptcy. The importance of specifying the amount in regard to each offence is due to the fact that the figure specifiedunder section 39 becomes for most practical purposes throughout the bankruptcy a statement of petitioning creditors' debts, there being not the usual machinery available for the petitioning creditor to call his debt as he would in an ordinary bankruptcy. So it is obviously quite important the provisions of section 39(3) should be meticulously obeyed. But at the same time the consequence in this instance is, in practice, very little indeed.
I make that statement good by going to the circumstances and seeing what happened. The case was before the learned trial Judge, Mr. Justice Ackner (as he then was) on 26th April 1978. It is evident that he was told that the amount for which the criminal bankruptcy order was appropriate was £35,000. In the criminal bankruptcy order which was in due course made on that day the figure of £35,000 was specified as a lump sum in respect of all the offences. In point of fact, since there were more than one offence, the figure of £35,000 should have been allocated in accordance with the statute.
The point is totally unimportant in the present instance, because there was only one creditor concerned, that is to say the appellant's employers, who were the only persons who remained as creditors in the order. Therefore that division amongst tham is a matter of no consequence. But at the same time it ought to have been done, and when the matter was brought to the Judge's attention, as it was on 19th July, he readily agreed that the amount should be divided into the various damage in the offences, and this was in due course done.
Now the matter comes before us on appeal by counsel that the order was defective when first made, and that it was not possible for the Judge to do, as he attempted to do on 19th July, to make good this defective order.
The main reason why it is contended that the first order should not be made good by the Judge is because reference is made to section 11 of the Courts Act 1971, and it is contended that within the terms of section 11 is to be found the only situation in which the kind of alteration which appears to be contemplated can be made.
This is what section 11(2) says: "Subject to the following provisions of this section, a sentence imposed, or other order made, by the Crown Court when dealing with an offender may be varied or rescinded by the Crown Court within the period of 28 days beginning with the day on which the sentence or other order was imposed or made, or where subsection (3) below applies, within the time allowed by that subsection." There is undoubtedly within that paragraph a general and important power whereby the Crown Court can make orders varying or rescinding certain decisions within the period of 28 days. But the period of 28 days had elapsed in the instant case, and therefore it was not possible for the prosecution to rely on that.
We were referred to one authority in the House of Lords dealing with these criminal bankruptcy orders and indeed dealing with the very section with which we are concerned. The case we were referred to, to which considerable importance is attached, is Customs and Excise Commissioners v. Menocal (1979) 2 W. L. R. 876. The headnote roads:
"The appellant, who had money in her possession, was arrosted on a charge of contravening section 304 of the Customs and Excise Act 1952 by being knowingly concerned in the fraudulent evasion of the prohibition in section 3(1) of the Misuse of Drugs Act 1971 against the importation of a controlled drug. She pleaded guilty to the charge and was sentenced to a term of imprisonment. More than three months after the imposition of the sentence of imprisonment, on an application for an order forfeiting the money found in her possession on arrest, the court inferred that the whole of the money had been provided to her to assist in the importation, and a forfeiture order was made, expressed to be under section 27 of the Act of 1971 or, alternatively, under section 43 of the Powers of Criminal. Courts Act 1973. She appealed against the order of forfeiture on the grounds that it was made without jurisdiction since, inter alia, the time within which the sentence might be varied under section 11(2) of the Courts Act 1971 had expired. The Court of Appeal dismissed the appeal."
On her appeal to the House of Lords it was held "that by virtue of the definition of 'sentence' in section 57 of the Courts Act 1971 the word 'sentence' in section 11(2) of that Act included a forfeiture order made against the offender; that section 11(2) laid down very clearly that any sentence or other order might be varied or rescinded by the Crown Court within 28 days, but that there was no power in the Crown Court to vary or rescind a sentence or any other order after the expiry of that period, and that accordingly, in the circumstances, the appeal must be allowed."
When one looks at section 57 of the Courts Act 1971 and the definition of "sentence", one sees why the House of Lords came to that view: "'sentence' in relation to an offence, includes any order made by a court when dealing with an offender …..", including a recommendation for deportation So it has a wide meaning. It includes any order made by the court when dealing with an offender, and the question is whether, in the circumstances of the instant case, it can be said, as it was said in Menocal, that there was a variation or attempted variation.
The learned trial Judge, Mr. Justice Ackner, took the view that he was not varying his sentence when he made the fresh disposition on 19th July. He regarded the order as being inchoate at that time and considered that if he made the appropriate alterations and gave them the authority of the Court, they would then be valid for all purposes.
However the House of Lords unquestionably, on the facts which I have read from the headnote, took the view that the word "sentence" had a wide meaning and held in that case that there had been an attempt to vary the sentence out of time.
We do not think that the case of Menocal is really a case which should sway us today, because the factual differences are so numerous. In Menocal the Court did attempt to vary what was undoubtedly a sentence on a matter which had not passed through the minds of the parties or their advisers during the trial. Some substantial time after the trial someone had the idea of making a forfeiture order and that was done. It was a case in which the penalty against the accused had been increased after the date of the hearing in respect of a matter upon which no one had exercised their minds at the time.
Comparing the situation in the instant case, here, as I have pointed out more than once, there was only one creditor. It was purely an exercise of futility that the amount should be split up as the Act provides. Never mind. These things do happen. May be it...
To continue reading
Request your trial
- Datuk Harun bin Haji Idris v Officer-ln-Charge, Pudu Prison
-
R v Maidstone Crown Court ex parte LB Harrow
...to a time limitation. However the scope of the rule is narrow. It was considered (and applied) by the Court of Appeal in R v Saville [1981] QB 12. Lord Widgery CJ cited with approval, and applied, HHJ Rubin's formulation of the rule in R v Michael [1976] QB 414, 419. Lord Widgery said [1981......
-
R v Shane Martin Norman and Others
...in any other way. We say generally speaking because the courts have recognised exceptions in very limited circumstances, one example is R -v- Saville (1980) 2 Cr App R (S) 26. In this case, the Crown Court having made a criminal bankruptcy order in the sum of £5,000 failed to identify how t......
-
R v Gavin Stephen Gordon; R v Taylor; R v D; R v Pusey; R v Shaukat; R v McManus
...“the 28 day period is not elastic.” However the correction of an error, notwithstanding the expiry of the 28 day period was permitted in Saville [1980] 2 CAR (S) 26 where an inchoate order was simply adjusted in such a way that the sentence or other orders were unaffected, and the court fol......
-
Limits to Supervisory Jurisdiction of the High Court
...of judges. It wasnotobserved byanyone atthetime that the matter might perhaps have been dealt withby the slip-rule: see R v Saville [1981] 1 QB 12. But, although that rulemight have afforded an opportunity to amendtheerroneous statementson the record, it couldnothave been used toannulthe ch......
-
Limits to Supervisory Jurisdiction of the High Court
...of judges. It wasnotobserved byanyone atthetime that the matter might perhaps have been dealt withby the slip-rule: see R v Saville [1981] 1 QB 12. But, although that rulemight have afforded an opportunity to amendtheerroneous statementson the record, it couldnothave been used toannulthe ch......