Donohoe, R. v [2006] EWCA Crim 2200

Case No 200600282/C2[2006] EWCA Crim 2200
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice, Strand London, WC2Date Friday, 28th July 2006
B E F O R E:
SIR IGOR JUDGE
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
LORD JUSTICE GRAY
MR JUSTICE McCOMBE
R E G I N A
−v−
MARK EDWARD ROBERT DONOHOE
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR A ALTY appeared on behalf of the APPELLANT
MR S NEWELL appeared on behalf of the CROWN
Between
DonohoeDefendantRCrown

J U D G M E N T(As Approved by the Court)

[1]MR JUSTCE McCOMBE: On 10th December 2004 in the Crown Court at Preston, the appellant pleaded guilty to three charges of possessing a controlled drug of Class A with intent to supply. On 27th January 2005 he was sentenced by Miss Recorder Nicholls to a total term of 5 years' imprisonment and the judge made an order under section 27 of the Misuse of Drugs Act 1971 for the forfeiture and disposal of the drugs seized. In view of the issue on this appeal it is not necessary to set out the facts of the offences themselves.[2]At the time of the appellant's plea on 10th December 2004 an application by the Crown, under section 6 of the Proceeds of Crime Act 2002 for a confiscation order was postponed pending the trial of the appellant's co−accused. At the time of the appellant's sentence on 27th January 2005 the confiscation hearing was further postponed. It was postponed again by His Honour Judge Slinger on 16th March 2006. A further postponement was ordered by His Honour Judge Cornwall himself, pending the submission of skeleton arguments by the parties directed to the question whether the Court had jurisdiction to make a confiscation order after the making of the forfeiture order under section 27 of the 1971 Act on 27th January 2006.[3]The problem was that section 15(1) and (2) of the 2002 Act provide as follows:
"(1 If the court postpones proceedings under section 6 it may proceed to sentence the defendant for the offence (or any of the offences) concerned. (2) In sentencing the defendant for the offence (or any of the offences) concerned in the postponement period the court must not−− (a) impose a fine on him (b) make an order falling within section 13(3), or (c) make an order for the payment of compensation under section 130 of the Sentencing Act."
An order under section 27 of the 1971 Act, as made by the learned Recorder of January 2005, falls within section 13(3) the 2002 Act. Therefore, it should not have been made.[4]The issue that had to be decided by Judge Cornwall, and which has to be decided on this appeal, is the consequence of the Court having failed to observe the prohibition in subsection (2). Was the Court precluded thereby from making a confiscation order?[5]By a characteristically careful and considered ruling delivered on 28th October 2005 after oral submissions on 21st October, His Honour Judge Cornwall decided that the court was not precluded from making a confiscation order. The substantive confiscation hearing proceeded on 19th December 2005. The learned judge made a confiscation order against the appellant in the sum £14,090, benefit having been assessed at £16,395 with a sentence of 45 days' imprisonment imposed in default of payment to be served consecutively to the earlier sentence of imprisonment passed by the learned Recorder in January 2005.[6]The appellant now appeals against the confiscation order and against the consequential default term of imprisonment by leave of the Single Judge. It is argued that the judge's ruling of 28th October which we have summarised on the point of law was wrong.[7]We have read sections 15(1) and (2) and have stated the effect of section 13(3) of 2002 Act. It is necessary to set out certain of the other provisions of the Act dealing with the postponement of confiscations proceedings and the effect of such postponement. Section 14 provides as follows:
"(1) The court may−− (a) proceed under section 6 before it sentences the defendant for the offence (or any of the offences) concerned, or (b) postpone proceedings under section 6 for a specified period. (2) A period of postponement may be extended. (3) A period of postponement (including one as extended) must not end after the permitted period ends.... (5) The permitted period is the period of two years starting with the date of conviction."
[8]It is subsections (11) and (12) of section 14 which are the most important for present purposes. Section 14(11) provides as follows:
"A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement."
Subsection (12):
"But subsection (11) does not apply if before it made the confiscation order the court−− (a) imposed a fine on the defendant; (b) made an order falling within section 13(3); (c) made an order under section 130 of the Sentencing Act (compensation orders)."
The order made under section 27 of the 1971 Act was an order, of course, falling within section 13(3).[9]Section 15(3) and (4) provides further (and we should read these as background) as follows:
"(3) If the court sentences the defendant for the offence (or any of the offences) concerned in the postponement period, after that period ends it may vary the sentence by−− (a) imposing a fine on him (b) making an order falling within section 13(3), or (c) making an order for the payment of compensation under section 130 of the Sentencing Act. (4) But the court may proceed under subsection (3) only within the period of 28 days which starts with the last day of the postponement period."
[10]In the light of those provisions the appellant submits through Mr Alty, in careful written grounds of appeal and in oral submissions this morning, that the Court had no jurisdiction to make confiscation order. The making of the order under section 27 of the 1971 Act, he argues prevented thereafter the Court from doing so.[11]The scheme of the 2002 Act is tolerably clear. It obviously designed to ensure that the Court takes into account any confiscation orders made in proceeding before making any order under section 27 of the 1971 Act.[12]The latter section is in wide terms and enables the court to order the forfeiture "anything shown to the satisfaction of the court to relate to the offence." This may, of course, include any item of property relating to or used for the offence such as a car, an aeroplane, a boat, or even a house which can be said to be so related.[13]The 2002 Act envisages that the machinery under the Act, will take precedence in resolving questions of what property will be confiscated. Thus, where a substantive sentence is passed and confiscation postponed the court is enjoined from making a forfeiture order under other legislation.[14]It is clear from the terms of section 15(2) of the Act when the court made the forfeiture order in January 2005, under the 1971 Act, it did so in contravention of the express statutory prohibition. The question is the effect of that error.[15]There is nothing in the remaining provisions of the Act which say that if the court makes an order in contravention of section 15(2), it may no longer proceed to hear the application for a confiscation order under section 6. What the Act does say in section 14(11) and (12) is that a confiscation order must not be "quashed" on the grounds that the procedural defect or error, except if that error was the imposition of a fine, compensation order, forfeiture order or the like within section 13(3). When the Act speaks of quashing of an order it seems to propose an order has been made and an application is made to quash it, presumably on an appeal. On their face, therefore, these two subsections appear to provide that an appellate court may quash a confiscation order even on procedural grounds if, for example, an order for forfeiture has been made under section 27 of the 1971 Act, before the making of the confiscation order. The subsections do not say directly that the court at first instance cannot make a confiscation order in such circumstances. Are they however saying so indirectly?[16]It seems to us that these two subsections are allowing the appellate court, if it sees fit, to quash a compensation order on procedural grounds where, for example, there is a danger of double counting or double penalty because the court had made an earlier order of an expropriating nature against a defendant and it should not have done so. The subsections are not imposing a prohibition on the trial court, from proceeding with the confiscation proceedings at it has validity postponed. In an appropriate case an appellate court could vary a confiscation under the 2002 Act and exclude from its ambit an asset wrongly made subject to an earlier forfeiture order under the 1971 Act which remains unrevoked. Alternatively, the court could allow an appeal, if necessary, out of time, against the order made erroneously in breach of prohibition in section 15(2). Further, the court hearing the confiscation proceedings at first instance is entitled and may be obliged to leave out of account assets wrongly made the subject of an earlier order.[17]We do not consider therefore either section 15(2), or sections 14(11) and (12) had the effect of depriving the court of jurisdiction to make a confiscation order when there had been a failure to observe the prohibition in section 13(2). None of these provisions state this to be the consequence. It would, in our view, frustrating the object of 2002 Act to hold erroneous imposition of a trivial fine or, for example, the forfeiture of drug dealing paraphernalia to render the court powerless to proceed with the substantive confiscation proceedings. A technically erroneous order for forfeiture of illegal drugs is, in our view, a fortiori case. Such an approach is, we consider, consistent with that of the House of Lords and in the recent case of Soneji [2005] UKHL 49. In our view, the learned judge was taking a very similar view in his ruling under appeal in the passage appearing at pages 8A and following of the transcript. With respect, we agree with that passage, but it is not necessary to embark upon the question of whether the order made in breach of the section 15(2) was a nullity. It suffices to say that we find nothing in the Act that says that such an order deprives the Court of jurisdiction thereafter to proceed with the confiscation hearing which it has validity postponed. We cannot think that Parliament would have intended such an result, which would defy common sense. We consider that the learned judge was right to hold that he had jurisdiction to proceed with the confiscation hearing. For these reasons, we dismiss the appeal.

Cited in 2 later judgments