R v Tivnan
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT,MR JUSTICE BUTTERFIELD |
| Judgment Date | 27 April 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J0427-16 |
| Docket Number | No: 9705233/Z3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 April 1998 |
[1998] EWCA Crim J0427-16
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Vice President
(Lord Justice Rose)
Mr Justice Butterfield
and
Mr Justice Richards
No: 9705233/Z3
MR I FRANK appeared on behalf of the Applicant
MR A MITCHELL appeared on behalf of the Crown
Monday 27th April 1998
In order to deal with this matter the Court has sat as, initially, a Divisional Court of the Queen's Bench Division and, subsequently, as a division of the Court of Appeal Criminal Division. We now give judgment in relation to both matters.
We deal first with the renewed application for leave to apply for judicial review.
Mr Frank, who appears for Michael Tivnan, did not feel able, before this Court, to advance arguments in support of the renewed application. The circumstances are these. What was sought to be challenged is a refusal to disclose to Mr Tivnan an internal report in relation to him as to which public interest immunity was claimed.
He was arrested in September 1990 on suspicion of participating in the importation of cannabis. Shortly thereafter a report was prepared by a Miss Outhwaite, an officer of HM Customs and Excise.
The applicant was subsequently convicted at the Crown Court, of being knowingly concerned in the importation of cannabis resin, and sentenced to 5 years' imprisonment, and a confiscation order was made to which in the latter part of this judgment it will be necessary to refer in further detail.
Having been released on parole licence in November 1993, Mr Tivnan sought to obtain a sight of the Outhwaite report. Parts were disclosed, parts were not. In 1994 he issued proceedings for defamation against the Commissioners based, it was said, on lies in the Outhwaite report. Those proceedings appear to be unresolved.
There were also, subsequently, proceedings by the commissioners for an increase in the amount to be recovered under the confiscation order. To that, as we have indicated, we shall in the latter part of this judgment return.
In relation to those proceedings, Mr Tivnan contends that the Outhwaite report in its entirety should be disclosed to him. There has been served, in support of the Form 86, the usual affidavit, and in refusing leave, Laws J said this:
"The applicant's complaint of the Commissioners' apparent claim of public interest immunity in relation to the 'Outhwaite report' appears to arise in the context of defamation proceedings brought by him. Any question as to the proper use of the Report in those proceedings is therefore a matter for the private law court dealing with the suit; it is not a matter for judicial review."
With those observations we agree. We add, as is implicit in what we have already said, that it has not been advanced on Mr Tivnan's behalf before us today, that anything in the Outhwaite report could materially assist the appeal to which in a moment we shall return. Agreeing as we do with the observation of Laws J, the renewed application for leave to move for judicial review in relation to the report is refused.
Turning, as Court of Appeal Criminal Division, to the appeal which Mr Frank advances before us, it is necessary to rehearse the relevant history. We have referred to the matter as an appeal. It is in fact an application for leave to appeal against sentence, which has been referred to the Full Court by the Registrar. But, in order sensibly to deal with the matter, we grant leave.
The history is this. On 18th October 1991 at Chelmsford Crown Court, before His Honour Judge Watling QC, the appellant, as he now is, was convicted by the jury of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of cannabis, and on 8th January 1992, at the same court, he was sentenced to 5 years' imprisonment.
The benefit to him under the Drug Trafficking Offences Act 1986, which was then the relevant legislation, was assessed at £479,376, and a confiscation order was made under that Act in the sum of £72,841, with 2 years' imprisonment in default.
On 7th June 1996, on the application of the Crown, a certificate of increased value of realisable property was granted by Latham J, under section 16(2) of the Criminal Justice (International Co-operation) Act 1990. The appellant was on that occasion represented by counsel. Thereafter, on 10th July 1997 application was made by the Crown to the Crown Court at Chelmsford that application was that the confiscation order, previously made in the comparatively modest sum to which we have referred, should be increased in accordance with the certificate granted by the High Court judge, namely to the sum of £479,376. That, it will be recalled, was the amount of benefit initially assessed in 1992 to the appellant by reason of drug trafficking. Judge Watling ordered that that sum be paid within 12 months, with 4 years' imprisonment in default.
In so far as it is material for present purposes, it is to be noted that the appellant sought to appeal against his conviction and sentence. The application in relation to conviction was abandoned before it had been considered by the Single Judge. The application for leave to appeal against sentence was refused by the Single Judge, but granted by the Full Court who, on 12th March 1993, dismissed the appeal. In March 1994, the Full Court also refused an application for a notice of abandonment, in relation to the conviction application, to be treated as a nullity.
For present purposes, the facts of the offence of which the appellant was convicted are immaterial. Essentially, the appeal turns on a point of statutory construction. The grounds of appeal, as amended with the leave of this Court today, are three in number, and we quote:
"1. That the certificate of the increased amount that might be realised issued by Latham J on the 7th day of June 1996 was issued in error."
Mr Frank identifies the error as that which is particularised in ground 2, as amended, which is in these terms:
"That the learned judge at the Crown Court sitting at Chelmsford on the 10th day of July 1997 erred in applying section 16 to assets acquired after the original confiscation order which assets were not shown to be the proceeds of criminality or turpitude.
3. The learned judge erred in limiting his discretion so as to exclude matter placed before Latham J and so as to exclude matters raised at the making of the original confiscation order."
So far as ground 1 is concerned, the first question is whether or not this Court has jurisdiction, in the light of the terms of section 50 of the Criminal Appeal Act 1968, to entertain an appeal against the issue of the certificate by Latham J. Section 50 is in these terms, omitting the immaterial provisions:
"(1) In this Act 'sentence', in relation to an offence, includes any order made by a court when dealing with an offender including, in particular…
(d) a confiscation order under the Drug Trafficking Act 1994 other than one made by the High Court;
(e) a confiscation order under Part VI of the Criminal Justice Act 1988;
(f) an order varying a confiscation order of a kind which is included by virtue of paragraph (d) or (e) above…"
Mr Frank accepts that the appeal sought to be made against Latham J's confiscation order does not lie within (d), (e) or (f). But he submits that the words "includes any order made by a court when dealing with an offender" are apt to cover such an appeal as is presently contemplated. We are unable to accept that submission. The jurisdiction of this Court is entirely statutory. We are unable to read the words upon which Mr Frank relies as embracing the issue of such a certificate as is here sought to be challenged. Any appeal against the order of Latham J which, as we have indicated was made getting on for 2 years ago, ought, in our judgment, properly to have been directed, if there were grounds for so appealing, to the Court of Appeal Civil Division.
We turn to the substantial point of this appeal, that in ground 2. Mr Frank submits that section 16 of the 1990 Act which is reflected in s 16 of the Drug Trafficking Act 1994, does not apply in circumstances where a defendant has come into some money or other assets, after a confiscation order has initially been made. The legislation, he submits, is intended to deprive a defendant of the benefits of drug dealing, but is not intended to prevent him from engaging in commerce until, it may be, many years later, when he has satisfied the order.
In support of that submission he relies on a judgment of Schiemann J, in the case of R v Barretto, the revised version of which, as approved by the judge, is contained in a transcript dated 30th November 1992. The relevant passage appears at page 5D of the transcript, when Schiemann J was considering the terms of section 16. He said this:
"It seems clear that, provided that it is in play, the effect of section 16 is to enable a prosecutor, or receiver, to apply to the court to vary a confiscation order where:
(a) the defendant had concealed assets from the court which made the order; or
(b) the assets taken into account by the court had unexpected increased in value; or
(c) the defendant had, after the making of the confiscation order, come into some money or other assets.
The first of these circumstances involves some turpitude vis a vis the original court on behalf of the defendant. The third involves no such turpitude."
Pausing there, that is the form which the judgment took in the unrevised version of it which was delivered on an earlier date.
Somewhat curiously, an article appeared in the New Law...
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Peacock and another
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