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Blackstone's Criminal Practice 2009

Part E

Updates to Part E: Sentencing

E1 Sentencing: General Provisions

E1.13 Personal Mitigation

Gosford-Hall [2008] EWCA Crim 1264 provides a remarkable illustration of the range of matters that may be considered relevant in mitigation of sentence. The defendant was a man of distinction, aged 68, whose many achievements (including the founding the Bloomsbury Society, which attempts to promote racial harmony and human rights through multi-cultural community events) contrasted with his unfortunate habit of abusing drink and drugs and committing sexual assaults (albeit relatively minor ones, such as bottom-pinching) when thus intoxicated. He had been imprisoned for this kind of behaviour some years before and his two latest offences had activated a three-month suspended sentence imposed a year earlier, again for similar misconduct.

There was other mitigation, including the fact that he cared for his wife who had a disability. In the circumstances the court reduced his total sentence from nine months to six by making the sentences imposed for his most recent offences concurrent rather than consecutive.

E1.13a Personal Mitigation

In A-G's Ref (No. 70 of 2008) [2009] EWCA Crim 100 the court considered whether the (advanced) age of the offender and/or the age of the offence could ever represent significant mitigation in the context of sexual offences against children. It was argued before the Court of Appeal that they could not. But the court disagreed. Lord Judge CJ said:

Inherent in this application is what we perceive to be the danger that the sentencing process should be approached as if it involves compartmentalisation. In many cases of serious sexual assault it is true that too much weight should not be given to the age of the offender or indeed the age of the offences, particularly if the offender has deliberately pressurised his victims into silence. But these matters do not cease to be factors which may form part of available mitigation. They are not always of 'comparatively little weight'. Nothing is always of little weight. Everything must depend on the individual circumstances of the specific case and the sentencing decision which the judge has to make in relation to the defendant who is standing before him in the dock. And in these applications our concern is with the eventual sentence, and whether it is properly to be described, in the round, as unduly lenient.

E2 Custodial Sentences: General Provisions

E2.8 Crediting of Periods of Remand in Custody

The Criminal Justice and Immigration Act 2008 (Commencment No. 3 and Transitional Provisions) Order 2008 (SI 2008 No. 2712) brings into force on 3 November 2008 inter alia s. 21(1) and (3) to (7) of the Act; s. 21(4) inserts s. 240A into the CJA 2003.

The new section provides that where a court sentences an offender to imprisonment in respect of an offence which was committed on or after 4 April 2005, where the offender was remanded on bail, and that bail was subject to both a 'qualifying curfew condition' (requiring that person to remain at one or more specified places for a total of not less than nine hours in any given day) and an 'electronic monitoring condition' (imposed under s. 3(6ZAA) of the Bail Act 1976: see D7.97), the court must normally direct that the 'credit period' is to count as time served by the offender as part of the sentence. The credit period is determined by the number of days on which the offender's bail was subject to these two conditions (including the first day, but excluding the last day) and then dividing that number by two (s. 240A(3)). If the court is of the opinion that it would be 'just in all the circumstances' not to give any credit for the days spent on bail under these conditions, the court should explain what the circumstances are which led to that conclusion (s. 240A(4) and (10)). Alternatively, the court may direct that a period of days which is less than the credit period is to count as time served (s. 240A(5)). This approach may be appropriate, in particular, if the offender has breached either or both of the conditions whilst on bail (s. 240A(7)). The court should state in open court the number of days on which the offender was subject to the conditions and the number of days which are being credited (s. 240A(8)).

In line with s. 240, the term 'imprisonment' in s. 240A must be taken to apply to sentences of detention in a young offender institution, extended sentences of imprisonment or detention in a young offender institution and determinate sentences of detention under s. 91 of the PCC(S)A 2000. Again in line with s. 240, a suspended sentence counts as a sentence of imprisonment for these purposes if it takes effect in consequence of breach.

Section 23 of and sch. 6 to the CJIA 2008 contain transitional provisions to deal with the situation where, for the purposes of s. 21, the relevant offence was committed before 4 April 2005. Before that date, s. 240 of the CJA 2003 was not in force, and the law is still governed by the CJA 1967, s. 67.

E2.8a Crediting of Periods of Remand in Custody

The problems that may arise when calculating time served on remand in accordance with the CJA 2003, s. 240, were examined once again in Johnson [2009] EWCA Crim 468, where the court noted that despite extensive reporting the guidance previously offered in Gordon [2007] 1 WLR 2117 has not always been adopted, and that when such failure leads to sentencing errors, very significant costs may be incurred. The court concluded:

8. As a result of further changes introduced by s. 22 of the Criminal Justice and Immigration Act 2008, time spent on curfew, if the curfew is for more than a certain number of hours, will count as time on remand for half the time of the curfew. It is apparent that obtaining this information will add to the complexity of these calculations for the trial court and no doubt, if the calculation is not made correctly when the matter is before the trial court, will add significantly to the complexity of trying to resolve the matters in this Court.

9. We appreciate that every effort has been made to try and reduce errors in making the correct calculation at the time of the sentence, but experience has shown that there are greater practical difficulties in eliminating errors than seems to have been appreciated when the legislation was enacted and brought into force. It may seem straightforward to ascertain the number of days, but experience shows that it is frequently not so. Defendants often offend more than once and may be on remand in relation to one set of proceedings but not another. Others, like Johnson in this case, move in and out of remand. In the case of yet more, the position is confused by absconding and its consequences. The addition of a curfew calculation will plainly add to the danger of administrative uncertainty as to how many days are to be counted. As these cases show, any error may often not be picked up until well after the elapse of even the 56 days now allowed under section 155 of the Powers of Criminal Courts (Sentencing) Act. As we have endeavoured to set out, needless expenditure is incurred for no apparent gain. There are two solutions to the problem:

i) Reconsideration ought to be given by Parliament to s. 240 of the Criminal Justice Act 2003. We understand clearly the need for transparency, but perhaps this would be more reliably achieved by a default provision to the effect that the time spent on remand was to count unless the judge otherwise ordered. It seems that the practice of requiring the judge to specify the number of days, bearing in mind the mistakes that can be made and the increased likelihood of mistakes, is adding a wholly unnecessary and disproportionate expenditure of funds at the present time.

ii) Pending reconsideration of the provisions of s.240, we would hope that each judge when imposing a custodial sentence would use the formula suggested by Sir Igor Judge (as he then was) in Gordon along the following lines:

The defendant will receive full credit for the full period of time spent in custody on remand and half the time spent under curfew if the curfew qualified under the provisions of s.240. On the information before me the total period is . . . days but if this period is mistaken, this Court will order an amendment of the record for the correct period to be recorded.' We hope that, if this formulation is used in every sentence, then the unnecessary costs that are incurred in this Court will be avoided if it transpires that mistakes have been made.

E2.11 Concurrent and Consecutive Custodial Sentences

In Hills [2008] EWCA Crim 1871, H fell to be sentenced for a serious assault on a prison officer committed while he was within the minimum term of an indeterminate sentence he was serving at the time. The judge concluded that this was a case in respect of which a concurrent sentence was inappropriate, and ordered that the three-year sentence he was imposing for the assault should not commence until the end of the minimum term (which was in February 2010).

Upholding this sentence, the Court of Appeal said:

In our view, there is no reason in principle why the court should not impose a sentence structured in the way that this sentence was. Section 154 of the Powers of Criminal Courts (Sentencing) Act 2000 declares that:

'A sentence imposed, or other order made, by the Crown Court . . . shall take effect at the beginning of the day on which it was imposed, unless the court otherwise directs'.

That seems to us to give to the court the power to direct that a sentence should or could commence at a different date. The sentencing regime which has been created in particular by the Criminal Justice Act 2003 provides for clear dates upon which minimum terms will come to a end which enable a court to identify with precision the date upon which otherwise an offender could be considered for release on parole. That being the case, there is in our judgment no practical reason why an order should not be made which requires the offender to commence to serve an additional period after the minimum period before he can be considered for parole. The old authorities to the contrary effect are no longer relevant now that minimum terms are clearly identified.

E2.11 Concurrent and Consecutive Custodial Sentences

In R (Noone) v Governor of HMP Drake Hall [2008] EWCA Civ 1097 the Court of Appeal, Civil Division, reversed the decision of the Administrative Court. The issue was the correct calculation of a prisoner's earliest release date (i.e. for calculation of eligibility for home detention curfew) and licence period when sentenced to consecutive sentences. In a detailed judgment given by Scott Baker LJ, the following conclusions relevant to sentencing emerged:

(a) when a judge passes consecutive sentences it is inevitable that one sentence follows the other, and that the first sentence handed down should normally be regarded as the 'lead sentence';

(b) either expressly or by implication, the judge should identify which sentence should be served first; if the judge says no more than that one sentence should follow another it will be necessary to construe in a common-sense way what direction (under the PCC(S)A 2000, s. 154) the judge was making;

(iii) the second sentence starts at the point at which release from the first sentence would otherwise occur as of right (i.e. the conditional release date of that sentence);

(iv) the prisoner is to be treated as eligible for home detention curfew and/or licence in accordance with the statutory provisions applicable to the second, or last, sentence - these will be those of the CJA 1991 where that sentence is less than 12 months, and those of the CJA 2003 where that sentence is one of 12 months or more.

E3 Mandatory Life Sentences

E3.1 Murder: Life Imprisonment

The Criminal Justice and Immigration Act 2008 (Commencment No. 3 and Transitional Provisions) Order 2008 (SI 2008 No. 2712) brings into force on 3 November 2008 inter alia s. 22 of the Act; s. 22(3) amends s. 269(3) of the CJA 2003 so as to add a reference to s. 240A (see E2.8) to follow the reference to s. 240.

E3.2 Schedule 21 Principles

The imposition of 'whole life' tariffs came under scrutiny in Bieber [2008] EWCA Crim 1601, where the appellant had been sentenced for the murder of a police officer and the attempted murder of two others. The trial judge concluded that the circumstances of the killing, in which an already injured and disabled officer was shot a second time through the head as he lay helpless on the ground, merited a whole life tariff. He said:

You had already disabled him and he was defenceless, you could have escaped then, but you chose to wait and fire a second shot at point blank range . . .

On appeal, it was contended (1) that the circumstances of the killing did not justify a whole life tariff on the basis of sch. 21; and (2) that whole life tariffs infringe the ECHR, Article 3 on the basis that they amount to 'inhuman or degrading treatment or punishment.'

The second of these grounds was clearly raised an issue of great importance and was addressed first. It had previously been raised without success in Secretary of State ex parte Hindley [2001] 1 AC 410, but appeared to have been given some support by the ruling of the ECHR Grand Chamber in Kafkaris v Cyprus (Application no. 21906/04, Feb 2008) in which it was suggested by some judges and expressly stated by others that:

The imposition of an irreducible life sentence, even on an adult offender, is in principle inconsistent with Article 3 . . .

The Strasbourg Court nevertheless concluded that:

Matters relating to early release policies including the manner of their implementation fall within the power member States have in the sphere of criminal justice and penal policy. . . . There is not yet a clear and commonly accepted standard amongst the member States . . . concerning life sentences and, in particular, their review and method of adjustment.

In the view of the Court of Appeal a whole life tariff, imposed to reflect the appropriate punishment and deterrence for a very serious offence does not conflict with Article 3. Mindful however of the fact that irreducible life sentences may one day be condemned in Strasbourg, the Court of Appeal went on to consider whether a 'whole life tariff' is in practice irreducible, and concluded that it is not. The Secretary of State has a limited power to release a life prisoner under the Crimes (Sentences) Act 1997, s. 30 (e.g., where the life prisoner has become old, incapacitated and terminally ill). If that power is not exercised when the circumstances appear to warrant it, it may then (but only then) be open to a prisoner to contend that his rights under Article 3 have been infringed.

On the particular facts of this case, the Court of Appeal concluded that it was one that fell into the 30-year band (albeit with several aggravating circumstances) rather than the whole life band. A minimum term of 37 years was substituted.

E3.5 Court of Appeal Guidance

In Height [2008] EWCA Crim 2500, [2008] All ER (D) 297 (Oct) A person who arranged and paid for his wife to be murdered should receive the same starting point as the person carrying out the killing. A judge was entitled to make a 'broad overall' judgment as to criminality.

Herbert [2008] EWCA Crim 2501, [2008] All ER (D) 298 (Oct) applied the principles laid down in Height (judgment in which was delivered by the court earlier in the same day). This high profile case involved defendants convicted of killing a young girl, and inflicting GBH on her boyfriend, and was widely reported at the time.

E3.5a Court of Appeal Guidance

Height [2008] EWCA Crim 2500 was applied in A-G's Ref (No. 24 of 2008); Sanchez [2008] EWCA Crim 2936, in which the trial judge wrongly declined to adopt the statutory 15-year starting point for the minimum term on the basis that the defendant's role in the murder had been a secondary one. In substituting a minimum term of 10 years, the Court of Appeal also issued a warning as to the duties of prosecuting counsel when involved in such cases:

There is now clear guidance to prosecutors as to the assistance to which a judge is entitled in a case. The judge made clear his intended course. Counsel for the Crown should have drawn to his attention the specific provisions of the 2003 Act. If counsel for the Crown had done this, the judge would have approached the matter, we have no doubt, in accordance with the statutory provisions and would not have imposed the specified term that he did.

A report was published on 4 November 2008 by HM Crown Prosecution Service Inspectorate in respect of the guidelines given by the Attorney General in 2007 in relation to the prosecution role in sentencing when a plea was accepted. It was pointed out that there was a low level of compliance with the guidance given. The obligation of counsel for the prosecution to assist the judge in relation to his powers on sentencing have been made clear for a longer period. This case illustrates a failure of compliance in the discharge of that duty.

The course of events in this case is also a poignant reminder of the absolute necessity of counsel for the Crown discharging their duty in this respect and the wholly unnecessary distress this has caused to the family of the victim.

E4 Custodial Sentences for Dangerous Offenders under the Criminal Justice Act 2003

E4.5 Imprisonment or Detention for Public Protection

As to the nature of the test that the Parole Board must apply when determining whether to recommend the release of a convicted prisoner to whom the Crime (Sentences) Act 1997, s. 28 and the CJA 2003, s. 225, apply see R (Bayliss) v Parole Board [2008] EWHC 3127 (Admin); [2008] All ER (D) 120 (Nov).

E4.6 Detention for Life or Detention for Public Protection

In W [2009] EWCA Crim 390, the applicant was convicted of attempted murder and of possessing a firearm with intent to endanger life. He was aged 14 at the time of the offences, and had been in various kinds of trouble before, but had not been convicted of any offences of violence and in expert reports was not assessed as being dangerous; but the trial judge's view was that the seriousness of the offences required a sentence of detention for public protection with a minimum term of six years.

Having considered various mitigating factors, the Court of Appeal substituted a determinate sentence of 12 years' detention, less time spent in custody on remand. The court acknowledged that offences of this nature committed by one so young are bound to cause deep concern, and that the attempted murder would normally justify the imposition of an indeterminate sentence, but the court felt that the judge had given insufficient consideration to the applicant's youth or to the positive reports. Dobbs J said:

30 . . . As a matter of general principle an offender of this applicant's age is far more susceptible to change than an adult, and thus, if influenced to the good, more likely to reform. The rationale underlying the guidance from the Youth Justice Board, is that an indeterminate sentence, such as Detention for Public Protection, is unnecessary save in cases of very grave risk, since the likelihood of change is inherent in youth. The evidence of change in this case, was all one way - to the good. The applicant has already shown that he is susceptible to change for the better. He has shown a determination to accept the verdict of the jury and the sentence of the court, and also to make the most constructive use of what will be a lengthy time in detention. The very objective that the indeterminate sentence was designed to achieve, namely the reduction of risk and danger, is being achieved.

. . .

35. We conclude that there was insufficient material before the court to justify the rejection of the findings in the two reports in relation to dangerousness. Both reports, set against the background of the seriousness of the offences had emphasised, amongst other things, the importance of the applicant's youth at the time of the offences - his immaturity, his vulnerability to peer pressure at the time, and his inability then to fully understand the impact of his actions. The court has, of course, to be astute to the possibility that those involved in assessing the applicant might lose objectivity and take too favourable a view, given that the applicant is personable. If the favourable evidence in front of the court consisted of only one person taking such a view, then the court would incline to caution. Here, however, there are reports from a number of different sources which attest to the applicant's behaviour. It is difficult for the court to dismiss such findings. There is significant evidence of the applicant's change of attitude and increased maturity, evidence which supports the approach advocated in relation to the sentencing of young offenders.

E4.9 Assessment of Dangerousness

According to the Court of Appeal in Lavery [2008] EWCA Crim 2499, it was clear from the wording of s. 229 of the CJA 2003 that the court was entitled to take account of offences which the offender had asked to have taken into consideration on sentence when assessing whether there was a 'significant risk' under ss. 225 to 228. See D19.52.

E4.11 Imprisonment for Public Protection: Multiple Offences and Concurrent Terms

Certain observations made by Rose LJ in Lang [2006] 1 WLR 2509 were considered and explained in Stannard [2008] EWCA Crim 2789, which concerned the sentencing of 'dangerous' offenders for offences committed both before and after 4 April 2005, when the Criminal Justice Act 2003, s. 225, was brought into force. Giving the judgment of the court, Lord Judge CJ condemned what apparently has been the widespread practice of disregarding s. 225 and its related provisions in cases where offences committed before 4 April 2005 were more serious than those committed on or after that date. It may be appropriate to impose no separate penalty in respect of lesser offences committed before that date, but nothing that was said in Lang suggested that the statutory provisions relating to the post 4 April 2005 offences should or could be disapplied.

Where the judge concludes that a convicted offender poses the requisite risk to the public, as set out in s. 225(1)(b), and imposes a sentence of imprisonment for public protection or an extended sentence, the earlier offences should instead be dealt with by imposing concurrent determinate sentences, because 'an order for no separate penalty will tend to convey to the victim that the court did not properly address the impact of the crimes'.

Stannard made only passing references to the significant amendments made to the dangerous offender provisions by the Criminal Justice and Immigration Act 2008, which have effect from 14 July 2008. The important case of A-G's Ref (No. 55 of 2008) [2008] EWCA Crim 2790 considers this further. In this case the Court of Appeal considered nine otherwise unrelated appeals arising under these provisions, in all of which cases the sentence had been imposed after the relevant amendments had come into force. Giving the judgment of the court, Lord Judge CJ began by pointing out that the amended scheme applies whenever an offender is sentenced after 14 July for whatever reason, such as the demands of the court, the illness of witnesses, the length of any trial, or where sentence is delayed because the offender has absented himself. Next, his lordship stressed the 'most striking feature' of the amendments, which is the repeal of the 'prescriptive and unhelpful statutory assumption' formerly to be found in s. 229(3). Nonetheless, the sentence of imprisonment for public protection remains (as originally stated in Johnson [2007] 1 Cr App R (S) 112) a sentence which, although punitive in its effect, 'is concerned with future risks and public protection' rather than representing punishment for past offending. His lordship went on to consider the revised conditions for imposing a sentence of imprisonment for public protection, set out in s. 225(3A) and (3B). It was noted that the list of offences specified in sch. 15A is much shorter than the original list of 'specified offences' in sch. 15. Where, however, the offender at the time the offence was committed had been convicted of an offence listed in sch. 15A, the sentence of imprisonment for public protection becomes available irrespective of the seriousness of the latest offence. The condition set out in s. 225(3B) requires that the notional sentence should be at least four years. Judge CJ stressed that a court should not reach such a figure unless it was justified by the seriousness of the offence. If the offender has been convicted of more than one offence then the issue was whether the totality of the offending was appropriately met by a notional sentence of that magnitude (while disregarding any credit which would normally be due for time spent on remand). Accordingly, 'condition 3B may be established notwithstanding the absence of an individual offence for which a four-year term would be appropriate'.

In deciding whether a sentence of imprisonment for public protection should be passed, the court should first consider the suitability of other available means of providing public protection from the offender, including a determinate sentence (perhaps with a sexual offences prevention order) or an extended sentence. If an appropriate overall sentencing package short of imprisonment for public protection can be found, then imprisonment for public protection should not be imposed. Lord Judge CJ said (at [14]):

Returning to the exercise of the court's discretion, or more accurately, its judgment, whether a sentence of imprisonment for public protection should be passed when the necessary criteria are established, the court is entitled to and should have in mind all the alternative and cumulative methods of providing the necessary public protection against the risk posed by the individual offender. For example, structured around a determinate sentence, or indeed an extended sentence under section 227 of the Act, which we shall shortly address, a sexual offences prevention order, with appropriate conditions attached could form part of what we may colloquially describe as the total protective sentencing package. Apart from the discretionary sentence of life imprisonment, imprisonment for public protection when the necessary conditions are fulfilled, is the most draconian sentence available to the court. If they are, we re-emphasise that the primary question is the nature and extent of the risk posed by the individual offender, and the most appropriate method of addressing that risk and providing public protection. If what we have described as the overall sentencing package provides appropriate protection, imprisonment for public protection should not be imposed.

See further the observations of the Court of Appeal in Terrell [2007] EWCA Crim 3079, [2008] 2 All ER 1065, considered in Blackstone's Criminal Practice at E21.12) on the use of the sexual offences prevention order, comments which are now even more relevant following the amendments made by the Criminal Justice and Immigration Act 2008.

(Comment on A-G's Ref (No 55 of 2008) contributed by Professor Martin Wasik CBE.)

E4.16 Period Specified under the Powers of Criminal Courts (Sentencing) Act 2000, s. 82A

The Criminal Justice and Immigration Act 2008 (Commencment No. 3 and Transitional Provisions) Order 2008 (SI 2008 No. 2712) brings into force on 3 November 2008 inter alia s. 22 of the Act; s. 22(5) amends s. 82A(3) of the PCC(S)A 2000. In paragraph (b), before 'if' there is inserted 'or under section 240A of that Act of 2003 (crediting periods of remand on bail subject to certain types of condition)'. A court setting a minimum period under that section will be required to take into account the effect of time spent by the offender on bail, where that bail was subject to both a 'qualifying curfew condition' (requiring that person to remain at one or more specified places for a total of not less than nine hours in any given day) and an 'electronic monitoring condition' (imposed under s. 3(6ZAA) of the Bail Act 1976). The court must normally direct that the 'credit period' is to count as time served by the offender as part of the minimum period. If the court is of the opinion that it would be 'just in all the circumstances not' to give any credit for the days spent on bail under these conditions, the court should explain what the circumstances are which led to that conclusion (s. 240A(4) and (10)). Or, the court may direct that a period of days which is less than the credit period is to count as time served (s. 240A(5)). This approach may be appropriate, in particular, if the defendant has breached either or both of the conditions whilst on bail (s. 240A(7)). The court should state in open court the number of days on which the defendant was subject to the conditions and the number of days which are being credited (s. 240A(8)).

Section 23 of and sch. 6 to the CJIA 2008 contain transitional provisions to deal with the situation where, for the purposes of s. 22, the relevant offence was committed before 4 April 2005. Before that date, s. 240 of the 2003 was not in force, and the law is still governed by the Criminal Justice 1967, s. 67.

E7 Detention and Custody of Offenders under 21

See W [2009] EWCA Crim 390, noted above at E4.6.

E7.15 Requirement to Take Into Account Period Spent on Remand

The Criminal Justice and Immigration Act 2008 (Commencement No. 3 and Transitional Provisions) Order 2008 (SI 2008 No. 2712) brings into force on 3 November 2008 inter alia s. 22 of the Act; s. 22(6) amends s. 101(8) of the PCC(S)A 2000. In that subsection, for 'in custody' shall be substituted '(a) in custody, or (b) on bail subject to a qualifying curfew condition and an electronic monitoring condition (within the meaning of section 240A of the CJA 2003)'. A court imposing a detention and training order will be required to take into account the effect of time spent by the defendant on bail, where that bail was subject to both a 'qualifying curfew condition' (requiring that person to remain at one or more specified places for a total of not less than nine hours in any given day) and an 'electronic monitoring condition' (imposed under s. 3(6ZAA) of the Bail Act 1976). See further E2.8.

E7.16 Breach of Order

The reference to the 'remainder of the term of the DTO' in the Powers of Criminal Courts (Sentencing) Act 2000, s. 104(3)(a), means the period between the occasion on which it was proved, to the satisfaction of the court before which the offender was brought, that he had failed to comply with specified requirements, pursuant to s. 103(6)(b), and the expiry of the DTO (H v Doncaster Youth Court [2008] All ER (D) 194 (Nov)).

E7.16a Breach of Order

In H v Doncaster Youth Court [2009] EWHC 3463 (Admin) the Divisional Court considered the PCC(S)A 2000, s. 104, and its meaning in the context of ordering the offender in consequence of breach to be detained in youth detention accommodation for the 'remainder of the term of the detention and training order'. The appellant submitted that the court must identify the date on which the original order expires, and must not impose any term of detention that would extend beyond that date (in this case a maximum of 23 days). The respondent submitted that the court should stop the clock at the date of the failure to comply, calculate the number of days from that date until the end of the term and then to treat that number of days (counted from the date of the order to return the offender to detention) as the relevant maximum even though that would lead to the term of detention expiring after the expiry of the term of the original order (in this case a maximum of 49 days). The Divisional Court held that the appellant's submission was correct. The natural meaning of s. 104 was that the court dealing with the breach might make an order that the offender be detained for the term of the order which remained to run at the date of that order.

E8 Community Order under the Criminal Justice Act 2003

E8.19 Enforcement of Community Order

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR and inter alia replace part 44 with a new part 44 which deals with the breach, revocation and amendment of community orders and which has effect from 6 April 2009.

E9 Community Sentences: Offenders Aged under 18

E9.1 General

The Sentencing Advisory Panel has published a consultation paper on the sentencing of young offenders. The paper follows the creation of youth rehabilitation orders in the Criminal Justice and Immigration Act 2008 and it is anticipated that implementation of that provision will await the publication of definitive guidelines from the SGC. The closing date for the consultation is 23 March 2009.

See www.sentencing-guidelines.gov.uk

E9.1a Introduction

The Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) (Amendment) Order 2009 (SI 2009 No. 616) further amends the Order of 2005 (SI 2005 No. 950) so as to further postpone the implementation of the CJA 2003, ss. 177, 179 and 180 and sch. 8 and 9 to 4 April 2010.

E9.4 Enforcement of Certain Community Orders under the PCC(S)A 2000

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR and inter alia replace part 44 with a new part 44 which deals with the breach, revocation and amendment of community orders and which has effect from 6 April 2009.

E15 Fines

E15.7 Enforcement of Fines

In R (Louis) v Ealing Magistrates' Court [2009] EWHC 521 (Admin), where the claimant sought judicial review of a decision committing him to prison for non-payment of a fine, Scott Baker observed (obiter):

The magistrates say that it is standard accounting practice, (and this may very well be the position in other magistrates' courts up and down the country), that where there are payments made in respect of fines, costs and compensation, the magistrates' court treats the payments first as attributable to compensation; secondly to costs and only thirdly to fines. I can see the force of doing so from the viewpoint of where the money goes after it has reached the magistrates' court, but it seems to me that when the payment is being made by a defendant it is important for him that if there is a fine with a period of imprisonment in default the money is attributed in the first instance to the fine. But we have not heard argument on these issues. Nor have we heard any argument on what the position is where part of the fine has been paid and the original imprisonment in default is in excess of the maximum allowed. Further, we have not been addressed about the period to be served where part of the fine has been paid and only a proportion of the original fine remains outstanding. We have no jurisdiction to deal with issues of that kind. They are not before us today and I express no opinion upon them.

E19 Confiscation Orders

E19.1 General

In Moulden [2008] EWCA Crim 2561, the court considered a case involving two separate incidents of deception under the Theft Act 1968, each of which had been the subject of a separate indictment. One had occurred before and one after commencement of the Proceeds of Crime Act 2002 regime on 24 March 2003. Having considered the Proceeds of Crime Act 2002 (Commencement No. 5, Transitional Provisions, Savings and Amendment) Order 2003 (SI 2003 No 333), para. 3, the court found that the two indictments reflected not just two separate offences but two separate sets of proceedings and that consequently, two frameworks applied. That ruled out any application of criminal lifestyle assumptions under either the 2002 Act or the Criminal Justice Act 1988, s. 72AA. Her total benefit would thus be assessed at £ 23,000 + £ 3,602, whereas the potential benefit under 'criminal lifestyle' assumptions would have amounted to a staggering £ 524, 200.

E19.3 and E19.6 The Human Rights Act 1998

In Grayson v UK (2008) The Times, 2 October 2008, the European Court of Human Rights rejected the contention of each applicant that, in confiscation proceedings brought under the Drug Trafficking Act 1994, the fact that the legal burden of proof was on the defendant to show that he/she did not have 'realisable assets' equivalent to the 'benefit figure', was in breach of Article 6 of the ECHR and Article 1 of Protocol No. 1. The Court held (at [49]) that it was not incompatible with 'the notion of a fair hearing in criminal proceedings to place the onus on each applicant to give a credible account of his current financial situation'. Whether there is a distinction to be drawn between cases in which property has been shown to have been 'received' by a defendant (Drug Trafficking Offences Act 1986 and the Drug Trafficking Act 1994) and cases in which the defendant 'obtained property' (CJA 1988 and PCA 2002) remains to be seen.

See also Joyce v Dover Magistrates' Court [2008] EWCA Crim 1448, and Flaherty v City of Westminster Magistrates' Court [2008] EWCA Crim 2589 (Admin).

E19.7 The Process: A Summary

In Morgan, Bygrave [2008] EWCA Crim 1323, the Court of Appeal remarked that 'it may amount to an abuse of process for the Crown to seek a confiscation order which would result in an oppressive order to pay up to double the full restitution which the defendant has made or is willing immediately to make, and which would thus deter him from making it': see also Farquahar [2008] EWCA Crim 806, and Fedee [2008] EWCA Crim 840. In Shabir [2008] EWCA Crim 1809 the Court of Appeal said that this jurisdiction 'must be exercised with considerable caution, indeed sparingly. It must be confined to cases of true oppression. In particular, it cannot be exercised simply on the grounds that the judge disagrees with the decision of the Crown to pursue confiscation, or with the way it puts its case on that topic'.

The case of Charlton [2008] EWCA Crim 2304 illustrates the mandatory steps to be followed under part 2 of the PCA 2002. In Prince [2008] EWCA Crim 1592, the Court of Appeal, citing Soneji [2006] 1 AC 340, stated that the Court should adopt a broad interpretation of the statutory procedural requirements 'which would avoid rendering wholly ineffective the Parliamentary intention of providing orders for confiscation'.

E19.7a The Process

The current law governing the imposition of confiscation orders continues to require the imposition of orders that all too often operate as a double penalty by confiscating the supposed proceeds of failed crimes from which the offenders concerned never really profited in the first place. Where for example a cigarette smuggler's cartons are seized within minutes of him failing to declare them to HM Revenue and Customs, it is highly artificial (if legally correct) to describe the financial penalty that follows his conviction as a 'confiscation order'. There are in reality no proceeds to be confiscated. The order, if sought, becomes an additional punishment or fine in everything but name and risks creating a serious imbalance between the gravity of the offending and the total penalty imposed. This does not happen when an offender is properly deprived of the actual realised proceeds of his crime.

In Morgan and Byegrave [2008] EWCA Crim 1323, the court conceded that a way out can sometimes be found. This is because 'it may amount to an abuse of process for the Crown to seek a confiscation order which would result in an oppressive order to pay up to double the full restitution which the defendant has made or is willing immediately to make, and which would thus deter him from making it'. The possibility that an application for confiscation may be oppressive was also recognised in Shabir [2008] EWCA Crim 1809. These rulings were considered in Lowe [2009] EWCA Crim 194, where any profit or advantage D might have made from a transaction designed to defraud his company's creditors had been clawed back by the liquidator before the criminal proceedings began. The trial judge and the Court of Appeal nevertheless concluded that a confiscation order in the full amount was required. The court opined that it would be very rare for a situation to arise in which an application for a confiscation order would be considered oppressive:

Indeed, if the principles set out in Morgan and Byegrave are observed by prosecutors, it may never arise. It is not, for example, an abuse of process to seek to recover more than a defendant has profited from his crime nor where he has made restitution outside the very narrow circumstances identified in Morgan and Byegrave. If it were otherwise the case and the jurisdiction exercised more widely, the court would be defeating the clear decision of Parliament, by enacting the legislation in the terms in which it did, not only to impose a draconian policy but also to remove the discretion of the court to avoid those consequences, save in a case where abuse was established.

The court added this postscript, per curiam:

20. In May [2008] UKHL 28, the opinion of the Appellate Committee of the House of Lords delivered by Lord Bingham emphasised . . . that the court should in applying the provisions of the Act to the facts of a case focus very closely on the language of the statute and view any judicial exegesis with caution; that guidance should be found in the statutory language rather than in the proliferating case law.

21. There are two points which were evident in this appeal and which are evident in other appeals to which that observation is important:

i) It is essential that the court hearing the proceedings finds and sets out all the relevant facts in its ruling (or judgment), including the facts that are agreed before it. It is evident that many confiscation hearings are not prepared in advance as they should be. There are many complaints that Defence Statements are inadequate. Timetables set out in the Criminal Procedure Rules or the court's directions frequently slip. Sometimes it is only at the last minute, either immediately before the court sits or even in the course of a hearing, that some matters are agreed and the real issues emerge, considerably burdening the task of the judge hearing the proceedings. If identifying the issues is left to the last minute, then insufficient attention is paid to ensuring that any procedural steps needed for the evidence to be admissible are taken. In an occasional case, where difficult issues arise, it may be the case that counsel with more experience of such issues is needed. Difficulties are from time to time compounded by a lack of a properly paginated bundle. It is, in the experience of many in this court, that, for reasons such as those we have outlined, it is not always clear from the ruling (or judgment) below what the facts were on which the issues which arose were determined. As the task of the court hearing the confiscation proceedings is to apply the statutory provisions to the facts (as agreed or found), it is essential that the ruling (or judgment) sets out all the relevant facts, as agreed and as found.

ii) Too many authorities are cited to courts. Advocates should bear the observations in May clearly in mind before any authority is cited to the judge hearing the proceedings or in this court. We were provided with a large bundle of authorities which were unnecessary.

E19.11 The Effect of the Basis of a Guilty Plea

In Corcoran [2008] EWCA Crim 1600, on the special facts of that case, the basis of plea formed the agreed basis for the purposes of confiscation proceedings. See however McCarry [2008] EWCA Crim 1587, which applied Lazarus [2005] 1 Cr App R (S) 552.

E19.13 Making of Confiscation Orders

Where the defendant's offences involve obtaining inflated fees or payments by deception, the entire amount obtained (which in this case was just under £180,000) represents the proceeds of his offending, even if (as in Shabir [2008] EWCA Crim 1809), the dishonestly inflated portion of that was much smaller. In Shabir it was calculated as just £464. To make matters worse, the defendant's case became, by statutory definition, one of a criminal lifestyle. The result was a confiscation order in the sum of £212,464.

The courts have consistently declined to construe the defendant's 'benefit' in this context as his net or retained profit (see for example Smith [2001] UKHL 68) with the result that confiscation orders have often appeared punitive rather than restitutionary, and sometimes unfairly so. Moreover, once the Crown decides to invoke the confiscation process, the making of an order is mandatory, and its amount cannot be moderated by judicial decision; but the courts do retain the power to stay an application where it is so oppressive as to constitute an abuse of process.

In some cases (particularly 'criminal lifestyle ones) it may be proper to impose a confiscation order for a sum much greater than the proven gain from the offences of which the defendant has been convicted, but in this case the order was oppressive and it was clear that the prosecution had given no thought to the circumstances that made it so. The court concluded that:

On the very unusual and exceptional facts of this case, we are sure that if application had been made to the judge to stay the confiscation application for abuse of process his answer could only have been that such stay should be granted.

An order in the sum of £464 was accordingly substituted.

E19.13a Making a Confiscation Order: Stage One - Determining Criminal Lifestyle

The Serious Crime Act 2007 (Commencement No. 3) Order 2008 (SI 2008 No. 2504) brought part 2 of that Act (encouraging or assisting crime) into force on 1 October 2008 (see A6.1 in the main work and in this supplement). Note that an offence under the SCA 2007, s. 44 of doing an act capable of encouraging or assisting the commission of an offence specified in the PCA 2002, sch. 2 is a 'lifestyle offence' (SCA 2007, sch. 6, para. 62).

E19.14 Stage Two - Determination of Benefit from Criminal Conduct

In Waller [2008] EWCA Crim 2037, the issue was whether a confiscation order should have included (as the value of D's benefit from his criminal conduct) the value of the tobacco 'smuggled' as well as the evaded duty. The Court of Appeal answered that question in the affirmative, noting that neither in Bakewell [2006] EWCA Crim 2 nor Homer [2006] EWCA Crim 1559 (where the duty evaded was identified as the benefit that had accrued in those cases) 'was there any discussion about claims based on the value of the goods supplied as well as the duty evaded'. It is not clear whether cases such as Moran [2001] EWCA Crim 1770 and IK [2007] EWCA Crim 491 had been cited to the court and considered. It is perhaps arguable that Waller pays insufficient regard to the distinction in the Customs and Excise Management Act 1979 between (a) goods which may lawfully be imported but which are subject to the payment of duty and taxes, and (b) goods prohibited from importation. If X evades the payment of income tax on his lawfully obtained income, is X's benefit the tax evaded plus his taxable income? It is submitted that the answer is, or ought to be, 'no' - but the position might be different if D obtained employment by deception and thus the income was indeed the 'proceeds' of that criminal conduct.

In Ilyas v Aylesbury Vale District Council [2008] EWCA Crim 1303, it was held that, for the purposes of the statutory assumption under the CJA 1988, s. 72AA(4)(a) (i.e. that property 'was received by him, at the earliest time when he appears to the court to have held it, as a result of or in connection with the commission of offences to which this part of this Act applies') the assumption was not confined to offences committed by the defendant. The Court of Appeal stated that if Parliament had intended to confine the application of the assumption to offences committed by the defendant, it would have been easy to do so by express words. The Court held that s. 72AA contained two 'safety valves', 'First, 72AA(3) gave the court a discretion as to whether to apply the statutory assumptions at all; and second, section 72AA(5)(c) provided that the court is not to make any particular assumption if satisfied that there would be a serious risk of injustice in the defendant's case if that assumption were to be made'. It is respectfully submitted that for the purposes of confiscation legislation other than the 1988 Act, the relevant 'criminal conduct' is that of the defendant and not the criminal conduct of a third party (note, for example, the use of the expression 'his general criminal conduct' as it appears in the PCA 2002, s. 10).

E19.15 Making of a Confiscation Order: Temporary Benefit

May [2008] 2 WLR 1131 and Jennings v DPP [2008] UKHL 29, [2008] 2 WLR 1148 were considered by the Court of Appeal in Alpress [2009] EWCA Crim 8.

Alpress answers a question which the House of Lords in May had tantalisingly left open at the end of its survey of the 'broad principles to be followed' by those called upon to exercise the jurisdiction to make confiscation orders. Their lordships had stated that:

Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers. (emphasis added)

A five-judge court in Alpress held that money launderers who are mere couriers or custodians should not be treated differently in that respect after all. Toulson LJ said:

To take an everyday example away from the criminal context, if a shopper in a supermarket gives money to a till operator at the checkout, which the till operator puts in the till, nobody would ordinarily think of the till operator benefiting from that sum of money or of the money being under the till operator's power of disposition or control in the sense in which the judicial committee used that expression in May and Jennings. The money in specie would be the shop's money from the moment that the till operator took it from the customer. It may be that the till operator would have physical power to dispose of the money elsewhere; it may be that he or she could put it in their pocket undetected, but that is no different from the physical power of any bailee to use the property for a different purpose from that of the bailment. Moreover, one would not ordinarily regard the till operator's physical possession of the money as a benefit to the till operator, or as the possession of money which was theirs to control or dispose of, merely because if the operator were to misappropriate and spend it, an innocent recipient would obtain good title.

. . . It is difficult to see why the nature of a custodian's interest in money should be different merely because the custodian knows or suspects that it is tainted by crime. If a criminal asks D, for a reward, to deliver stolen property to a professional receiver and to collect an envelope containing the price which the receiver has agreed to pay, and D does so, we do not see why as a matter of general principle D should be regarded as having an interest in the money which he collects (any more than in the property which he delivers to the receiver) simply because he knows or suspects that the property was stolen, or simply because if D had instead spent the money in a shop the shop keeper would have obtained a good title to it. . . .

We conclude that if D's only role in relation to property connected with his criminal conduct, whether in the form of cash or otherwise, was to act as a courier on behalf of another, such property does not amount to property obtained by him within the meaning of POCA 2002 s. 80(1) or CJA 1988 s. 71(4) or to 'payment or other reward' within the meaning of DTA 1994 s. 2(3).

The court also restated some of the general principles previously identified in Sivaraman [2008] EWCA Crim 1736, notably in this passage:

In Sivaraman the court also addressed two misconceptions which subsequent cases suggest may still be common. One was that in assessing benefit in a conspiracy case each conspirator is to be taken as having jointly obtained the whole benefit obtained by 'the conspiracy'. A conspiracy is not a legal entity but an agreement or arrangement which people may join or leave at different times. In confiscation proceedings the court is concerned not with the aggregate benefit obtained by all parties to the conspiracy but with the benefit obtained, whether singly or jointly, by the individual conspirator before the court. The second misconception is a variant of the first. It is that anybody who has taken part in a conspiracy in more than a minor way is to be taken as having a joint share in all benefits obtained from the conspiracy. This is to confuse criminal liability and resulting benefit. The more heavily involved a defendant is in a conspiracy, the more severe the penalty which may be merited, but in confiscation proceedings the focus of the inquiry is on the benefit gained by the relevant defendant. In the nature of things there may well be a lack of reliable evidence about the exact benefit obtained by any particular conspirator, and in drawing common sense inferences the role of a particular conspirator may be relevant as a matter of fact, but that is a purely evidential matter.

E19.16 Stage Two - Determination of Benefit from Criminal Conduct: Joint Enterprise and Individual Benefit

Sivaraman [2008] EWCA Crim 1736 usefully illustrates the application of the trilogy of cases decided by the House of Lords in May, Jennings, and Green, in cases where the defendant played a subordinate role in the offending venture.

See Ajula [2008] EWCA Crim 637 in which the case of Sharma [2006] 2 Cr App R (S) 416 was considered.

Chambers [2008] EWCA Crim 2467 is an object lesson in ensuring that a count/charge has a proper legal base, and that the legislation relied upon is up-to-date. It was only by chance that the Court of Appeal discovered (thanks to a lawyer in the Asset Forfeiture Division of the RCPO) that the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 no longer applies to tobacco products. The Court also made observations that are relevant to the determination of the 'benefit' figure in respect of confiscation proceedings in such cases, 'On the hearing of the appeal [prosecuting counsel] accepted, in our judgment correctly, that the appellant would only have obtained a benefit by way of a pecuniary advantage in the form of the evasion of excise duty if he was himself under a liability for the payment of that duty which he dishonestly evaded. To help somebody else to evade the payment of duty payable by that other person, within intent to defraud, is no less criminal, but in confiscation proceedings the focus is on the benefit obtained by the relevant offender. An offender may derive other benefits from helping a person who is under a liability for the payment of duty to avoid that liability, e.g. by way of payment for the accessory's services, but that is another matter. In order to decide whether the offender has obtained a benefit in the form of the evasion of a liability, it is necessary to determine whether the offender had a liability which he avoided. In the present case that turns on whether the appellant was liable for the payment of excise duty on the relevant goods under the relevant Regulations' [para.12].

Note that para.13(3)(e) of the 2001 regulations (as amended) states that duty is payable by 'any person who caused the tobacco products to reach an excise duty point'. Consider, among other cases, Bakewell [2006] EWCA Crim 2, Rowbotham [2006] EWCA Crim 747, and Edwards [2004] EWCA Crim 2923 (in the latter case the parties clearly were aware of the 2001 Regulations).

E19.22 Stage Three - Determination of the Recoverable Amount: Valuation of Benefit

In Islam [2008] EWCA Crim 1740, the Court of Appeal applied (correctly it is submitted) Hussain [2006] EWCA Crim 621, i.e. that the value of an illicitly obtained controlled drug is nil. To hold otherwise would, in many cases, lead to absurdly high 'benefit' valuations for the purposes of the Drug Trafficking Act 1994 and the PCA 2002 that would be out of all proportion to what D had in fact 'received' (Drug Trafficking Act 1994) or 'obtained' (PCA 2002). Consider, for example, the lorry driver who is paid £5,000 to import 30 kgs of a Class A drug into the UK. The solution (attributed to Lord Bingham in Dore) is an imperfect one because some controlled drugs that are not illicitly manufactured or subject to a total ban on distribution, could be legitimately sold. However, if there is evidence that D contributed to the purchase price of the drug then the sum expended will be assumed to have been obtained from the proceeds of criminal conduct (under the PCA 2002) unless that assumption is shown to be incorrect. What still tends to be overlooked is that it is the history/origin of the money expended that is relevant for the purposes of the 'expenditure assumption'. Money, legitimately obtained by D, does not constitute a 'benefit' to him at the moment that he parted with it to buy illicit drugs. The money is a 'benefit' in the hands of the supplier because, at the moment that he obtained it, he did so in connection with criminal conduct. For the purposes of the 'benefit' determination, the court must always focus on the moment that D 'obtained' (PCA 2002) or 'received' (Drug Trafficking Act 1994) the property when deciding whether D did so in connection with criminal conduct, or not.

E19.16a Joint Enterprise and Individual Benefit

In Mitchell [2009] EWCA Crim 214,, M pleaded guilty to being knowingly concerned in the fraudulent evasion of duty payable on the importation of tobacco contrary to the Customs and Excise Management Act 1979, s. 170(2). In confiscation proceedings (under the PCA 2002), the prosecution did not assert that M had a criminal lifestyle but it did allege (a) that he obtained the tobacco within the meaning of the PCA 2002, s. 76(4) and (b) that he obtained a pecuniary advantage within the meaning of s. 76(5) by evading payment of the excise duty payable on the tobacco. The Recorder made a confiscation order in the sum of £100 after accepting M's contention that his only benefit from the offence was in that sum, which had been paid to him in cash for helping to load the tobacco. In dismissing the Crown's appeal, the court proceeded on the basis that M was not an importer or co-importer. The question arose whether M, as a loader, was personally liable for payment of the excise duty (and see Chambers [2008] EWCA Crim 2467). The answer to that question turned on the proper construction of the Tobacco Products Regulations 2001 (SI 2001 No. 1712), which implement EC Council Directive 92/12/EEC (0J L76, 23/3/1992). The Court observed (at [20]) that 'chargeability arises in the case of imported tobacco upon importation; and the excise duty point, subject to immaterial exceptions, is that point in time, i.e. the moment of importation'. The Court did not reach a formal decision regarding the precise definition of the phrase 'any person who caused the tobacco products to reach an excise duty point' as it appears in reg. 13(3)(e) but, 'it appears to us that it is directed at that person or body who had real and immediate responsibility for causing the product to reach that point, which will typically and ordinarily be the consignor' (at [32]). It is respectfully submitted that the decision leaves a number of loose-ends. First, is an 'importer' the person who owns the goods (jointly or solely) or the person who 'brings about' the importation of the goods? The weight of authority - at least in connection with prohibited goods - is, arguably, the latter. Secondly, when does an 'evasion' begin'? In Mitchell, the Court said that chargeability on tobacco arises upon importation (at [20]) but it added (at [26]) that 'the point at which an evasion occurs will not be until the importer ought to declare'. When ought the importer to declare: is it at the 'excise duty point' or later?

E19.24 Stage Four - Determination of the Available Amount

See Grayson v UK (2008) The Times, 2 October 2008 at E19.3.

E19.27 The Family Home

When a court is considering what interests a husband and wife intended that they should have in a property in their joint names, the search is for the result which the parties, in the light of their conduct, may be taken to have intended and not for the result which the court itself considers fair (Gibson v RCPO [2008] EWCA Civ 645, applying Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432).

E19.28 Confiscation Orders and Sentence

In CPS v Gilleeney [2009] EWCA Crim 193 the court ruled that:

[The Proceeds of Crime Act 2002] s. 14(1)(a) plainly contemplates that proceedings under section 6 may commence before sentences are imposed. . . . There is no requirement to complete the proceedings under section 6 within a particular period, or before sentence, or that a direction under section 14(1)(a) requires directions beyond that to provide statements of information.

It is however important for courts or judges to make clear whether they are proceeding under section 6 before sentencing the defendant for the offence (or any of the offences) concerned (under s. 14(1)(a)), or postponing proceedings under section 6 for a specified period (under s. 14(1)(b)).

E19.29 Relationship with Other Orders

In Morgan, Bygrave [2008] EWCA Crim 1323, the Court of Appeal considered the effect on a potential confiscation order of an offender paying or offering to pay compensation to his victim[s] without waiting to be sued for it in civil proceedings. Morgan concerned the position in cases still governed by the Criminal Justice Act 1988; Bygrave concerned the position where the Proceeds of Crime Act 2002 applies. The problem is that neither piece of legislation appears to make any allowance for such payment. As Hughes LJ explained (at [15] to [16]):

If the defendant waits to be sued by the victim and the victim sues or indicates an intention to do so, section 71(1C) CJA 1988, or section 6(6) POCA 2002 as the case may be, creates a discretion in the court whether to make a confiscation order or not. It does not follow that the court will not make a confiscation order. At least if there appear to be benefits obtained from criminal conduct which go beyond the loss caused to the suing loser, it ought ordinarily to make an order. There may be other reasons why an order should be made in a particular case. But it would not necessarily be improper, if there were no benefit to the offender beyond the loss which will be recovered by civil action, for the judge to decline to make a confiscation order. And if an order is made in such a case, the Judge is not bound to make it for the full amount of benefit obtained, up to the defendant's realisable assets, but instead can make it for such sum as he thinks fit or just: see section 71(1C)(c) CJA 1988 or section 7(3) POCA 2002, as the case may be. Thus the order can be made for the amount of any excess benefit obtained by the defendant beyond that which is being removed by the loser's civil action, or by a compensation order made to relieve the loser from having to go through with that civil action. In that way the defendant can be made to disgorge all criminal benefit obtained, up to the amount of his assets, but need not be required to pay more than he has obtained.

If, however, instead of waiting to be sued, the defendant repays the loser before he comes to court, or indicates that he stands ready to repay immediately, there will probably be no actual or intended civil action by the loser. In that event, section 71(1C) CJA 1988, or section 6(6) POCA 2002, will not apply. That will mean two things. First, the making of a confiscation order is mandatory once the Crown asks for it. Second, the order which must be made can only be for the full sum of benefit obtained, up to the amount of the defendant's realisable/available assets. If the only benefit the defendant has obtained is the amount which he has repaid to the loser, this has the inevitable consequence that there must be a confiscation orders for the same sum again, so long as the defendant has assets to meet it. That means he pays up to double the benefit he has obtained from crime. And if there is excess benefit obtained beyond the sum due to the identified loser, there is no power in the court to tailor the confiscation order to that excess; rather the order must be for the whole benefit obtained.

The court accepted that the law was indeed anomalous in this respect, and that it would be wrong to discourage offenders from making prompt and full restitution to their victims (see also Farquhar [2008] EWCA Crim 806) but held that injustice could be avoided without doing violence to the terms of the legislation.

There is an individual decision to be made by the Crown in each case whether to ask the court to apply the confiscation process. Similarly, it is open to the Crown to discontinue the confiscation proceedings at any stage.

The court retains the jurisdiction to stay an application for confiscation, as any other criminal process, where it amounts to an abuse of the court's process. In the present context, that power exists where it would be oppressive to seek confiscation. See Mahmood [2005] EWCA Crim 2168; Hockey [2007] EWCA Crim 1577.

This may be appropriate 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 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. It does not follow that a confiscation order is always unfair or oppressive just because it may result in the offender paying out more than his actual profit or share of the profit.

In cases where no payment has yet been made, justice may best be achieved by making a confiscation order coupled with an order under the Proceeds of Crime Act 2000, s. 13(6) for the offender's victims to be paid their compensation out of that order. In Bygrave that was the solution adopted by the Court of Appeal.

E19.32 Enforcement

Proceedings to enforce a confiscation order by civil means attract the protection of the ECHR, Article 6(1). Enforcement of a confiscation order involves the imposition of a financial penalty, analogous to a fine. The ultimate sanction in default of payment is imprisonment. Accordingly, enforcement of confiscation proceedings involves the determination of a criminal charge: R (Minshall) v Marylebone Magistrates' Court [2008] EWHC 2800 (Admin). In that case, however, the fact that enforcement of a confiscation order imposed on the claimant in October 2000 was suspended until May 2006 pending various complex appeals by the claimant and others (and was not finally proceeded with until August 2006) did not constitute an infringement of the claimant's Convention rights. Whilst the period between the imposition of the confiscation order and the enforcement proceedings had been unusually long it was not unreasonable within the meaning of Article 6(1).

E19.32 Enforcement

In Smith [2009] EWCA Crim 344, in which the appellant had pleaded guilty to conspiracy to supply cocaine, the court made this obiter observation as to the enforcement of confiscation orders:

An application was made to the District Judge in the Magistrates Courts to enforce the confiscation order. It appears that some evidence was put before the judge that the defendant was trying to realise assets or obtain the money. That comprised merely, as we understand it, some assurance from his lawyers. It is self-evident and important to note that no leeway whatsoever should be given to anyone subject to a confiscation order unless there is hard evidence in the form of money deposited or properties secured that show that the sums are being realised. A simple assurance from a lawyer is totally worthless and should not be acted on in the absence of hard evidence of the kind we have described. We say that because it appears, although the information before us is not complete, that the District Judge may have extended the time for payment until 20th March. If the account we have given is correct the judge wrongly exercised his discretion to do so and no leeway should have been shown whatsoever to this appellant.

E19.33 Reconsideration

Gokal v Serious Fraud Office [2001] EWCA Civ 368 and Re McKinsley [2006] 1 WLR 3420 were applied in Younis [2008] EWCA Crim 2950, where the court stated that, although the procedure for applying to vary a confiscation order was now governed by the Proceeds of Crime Act 2002, s. 23, the substance of the jurisdiction (previously contained in the Drug Trafficking Act 1994, s. 17 and the Criminal Justice Act 1988, s. 83, has not been changed. It could not have been the intention of Parliament in s. 23 of the 2002 Act that a defendant should be entitled to re-litigate matters which had been determined against him in the original confiscation proceedings.

E20 Recommendation for Deportation

E20.1 Power to Recommend for Deportation

In Grant v United Kingdom (App. No. 10606/07) [2009] All ER (D) 82 (Jan) the European Court of Human Rights examined the relationship between the Secretary of State's power to order deportation and the individual's right to private and family life under Article 8.

E21 Exclusions and Disqualifications

E21.2 Drinking Banning Orders

The Civil Procedure (Amendment) Rules 2008 (SI 2008 No. 2178) include amendments to part 65 removing the provisions relating to drinking banning orders. The Explanatory Note indicates that this is because the relevant provisions of the Violent Crime Reduction Act 2006 have not been implemented and the Explanatory Memorandum states that such implementation 'has been delayed indefinitely'.

E21.12 Sexual Offences Prevention Orders

When imposing a Sexual Offences Prevention Order under the Sexual Offences Act 2003 at the same time as imposing a notification requirement under sch. 3 to that Act, a court or judge should ensure that the terms of the Sexual Offences Prevention Order are consistent with the duration of the notification requirements.

Excessively wide terms must also be avoided. In Hammond [2008] EWCA Crim 1358, the original order, although designed to prevent the defendant from accessing child pornography, would have prevented him from accessing any online material not connected with his work or education. As the Court of Appeal observed, this would (inter alia) prevent him from accessing the internet to order a train ticket or to book a holiday. The court substituted a term by which, 'he is not to download any photographs or pseudo photographs of any person under the age of 18'.

If the transcipt is correct, the court does not confine the prohibition to indecent images. On the other hand, a prohibition on downloading would not appear to extend to the viewing of images or video streams that are not copied to the viewer's hard drive.

E21.12a Sexual Offences Prevention Orders

In Allen [2008] EWCA Crim 2535, [2008] All ER (D) 103 (Oct) the appellant was convicted on strong evidence (including DNA tests performed on a hydatiform mole resulting from a faulty conception) of the repeated rape of his stepdaughter between the ages of 11 and 15. Pre-sentence reports indicated that he would pose a continued risk to female children living in the same household. He was sentenced to 15 years' imprisonment and a SOPO was imposed by which he was:

Firstly, not to reside in any household with a child under the age of 18 years of age. Secondly, not to be alone with or not to have any contact with any child under the age of 18 years, except in the presence of that child's parents or guardian who must be aware of your sexual conviction, save in the course of normal situations where contact is contingent upon normally daily activities; and thirdly, not to engage in the work, employment or other such activity with a child or young person who you responsibly believe to be under the age of 18 years, either on a professional or voluntary basis or to apply any such work, employment or any such activity.

The court accepted the need for a SOPO. The criteria for the assessment of dangerousness pursuant to s. 229 of the Criminal Justice Act 2003 was not for same as the test for imposing a SOPO. The former required that there was a 'serious risk of harm to the public', whilst in the case of the latter, there was a lesser but mandatory requirement of 'necessity' for the purpose of protecting the public from serious harm. A general risk to young females was properly to be marked by the imposition of a SOPO and it was 'necessary' for that purpose.

Nevertheless,the SOPO imposed was unnecessarily wide. There was no need for it to limit his contact with male children or (in the circumstances of this particular case) with his own natural children. The terms of the SOPO would be varied accordingly.

E23 Notification Requirements under the Sexual Offences Act 2003

E23.2 Listed Offences

Notification requirements apply in respect of some offences only where the offender has received a specified type of sentence. In cases of sexual assault a community sentence of at least 12 months will suffice, but one of less than 12 months will not. In D (AV) [2008] EWCA Crim 2795 (sub nom Davison [2008] All ER (D) 13 (Nov)) it was held that a sentence of so many hours unpaid work to be completed within 12 months is for these purposes a sentence of at least 12 months, even if the offender might in practice be able to complete his allotted hours in a shorter period.

Odam [2008] EWCA Crim 1087, in which the court had assumed the contrary, has been the subject of academic criticism and was disapproved.

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