Prince, R v [2008] EWCA Crim 1592

Case No 200705236/D3[2008] EWCA Crim 1592
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 9th July 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MR JUSTICE SILBER
SIR CHRISTOPHER HOLLAND
Between
R E G I N ACrownv
Between
CALVIN PRINCE
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mrs H Gore appeared for Applicant
J U D G M E N T
[1]Mr Justice Silber: Calvin Prince makes a renewed application for an extension of time for leave to appeal against a conviction recorded against him at the Inner London Crown Court and for a confiscation order imposed on him subsequently at that court. On 18th March 2003 the applicant had been convicted at that court of possessing a controlled drug of class B, namely cannabis, with intent. On 11th April 2003 before the same court he was sentenced to a community punishment order of 160 hours and an order was made for the forfeiture, destruction and disposal of the drugs. Subsequently a confiscation order was made in this case.[2]This is a renewed application as the original application was refused by the single judge on paper.[3]The background to this case can be summarised very briefly. On 5th August 2002 the police executed a drug search warrant at Princess Videos in 13 North Street, Clapham, which was premises of which the applicant was the leaseholder. He was arrested at the shop after the police had recovered 84 bags of cannabis from the street and basement levels of the property. A large part of the cannabis was packaged in small bags as if ready to sell and some was found in the sleeve of a jacket. Business cards were found at the premises with a cannabis leaf logo and the caption, "General and Grandpa at your service, day and night". The applicant was asked who owned the bag containing the cannabis. He replied, "That's mine. It's for personal use. It's cannabis." When the applicant was searched the police found £500 in cash in his rear right pocket and £25 cash in his rear left pocket.[4]The prosecution case was that the applicant knew that the cannabis was on the premises, that he had control over it, and that he had intended to supply it to another. The defence case that he knew nothing about the drugs and the jacket in which the cannabis was found did not belong to him. It is said that he did not know anything about the business cards.[5]The first obstacle that has to be overcome by the applicant is that this appeal is brought more than four years late and the reason that has been put forward for the application for an extension of time is that the applicant was unable to appeal because of ill health. It is said that in about 1997 he was admitted to hospital with a gall stone problem. He discharged himself, as he was fearful of having an operation following the death of his wife in the hospital. He was then taken ill subsequently with vomiting in 2000 and 2001. He eventually returned to the hospital where his wife died, but he discharged himself and sought alternative treatment to cure himself naturally. In 2004 he was diagnosed with abnormal liver function and in 2005 he was diagnosed with a blood infection. His case was that his recovery had been very slow. At the end of his trial in 2003 he was like the living dead.[6]There is no evidence whatsoever to substantiate his explanation as to why this claim is so late. There could have been medical certificates supplied but none have been produced. We would dismiss the appeal on this ground but we must make it also clear that there are other grounds for dismissing this application which we will now explain.[7]It is said in the skeleton argument put forward by Mrs Gore, who appears for the applicant today but who did not appear at the trial, that the conviction is unsafe because of the defects in the summing-up. She did not pursue this in her oral submissions, but we are quite satisfied that there is no merit whatsoever in these points. The judge also gave the conventional warning to the jury that the question of facts was for them, and, if he appeared to express a view concerning them, they should not adopt it unless they agreed with it. In addition, there was no need for the judge, especially in a very short case, to put forward every possible argument to the jury. Thus we reject the application for leave to appeal against conviction.[8]We turn now to the question of the application for leave to appeal against the confiscation order which was imposed on the applicant on 18th July 2003 in the sum of £70,847.93, or in default he had to serve a period of 18 months' imprisonment.[9]The ground of appeal is that the judge did not act in accordance with section 2(2) of the Drug Trafficking Act which provides that:
"The court shall first determine whether the defendant has benefited from drug trafficking."
[10]It then goes on to say in section 2(4):
"If the court determines that the defendant has so benefited, the court shall, before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned, determine in accordance with section 5 of this Act the amount to be recovered in his case by virtue of this section."
[11]Mrs Gore says the judge did not act in accordance with this because he passed a sentence of community punishment before determining if the applicant had benefited from drug trafficking. In support of this application Mrs Gore relies on the decision of this court in Keith Ross [2001] EWCA Crim 560, which is also reported in [2001] 2 Cr App R(S) 484, in which a confiscation order under the Drug Trafficking Act 1994 was quashed on the ground that no application had been made before the appellant was sentenced and therefore the Crown Court had no jurisdiction to proceed.[12]In our view, there are two reasons why we must reject this submission. The first reason is that it is noteworthy that when

the judge completed his sentencing remarks on 11th April 2003 he said:

"That is all for today. As you know, the other aspect of the matter is adjourned until 20th May."
[13]We asked Mrs Gore if she could think of any reason why the matter would be adjourned if it was other than for a confiscation proceedings. She was unable to suggest any other reason. In our view, it is quite clear that the adjournment was in respect of confiscation proceedings and that indicates to us that the provisions of sections 2(2) and 2(4) of the Drug Trafficking Act 1994 had been complied with.[14]There is also an additional insuperable barrier for the applicant to overcome before he can obtain leave to appeal against the confiscation order. It is true that there are mandatory requirements in the Act to which we have referred. Nevertheless, it is clear that the view that has been expressed in numerous cases is that in these matters the court should adopt a broad interpretation which would avoid rendering wholly ineffective the Parliamentary intention of providing orders for confiscation. In the case of R v Soneji and Bullen [2006] 1 Cr App R(S) 79 the House of Lords explained the courts could, where necessary, vindicate a scheme adopted by Parliament by bearing in mind that an offender is not significantly prejudiced and no injustice would be caused by them by not regarding these restrictions as being mandatory. The reason for that is that they were decisively outweighed by the countervailing public interest in not allowing a convicted offender to escape confiscation for what were no more than bona fide errors in the judicial process. An objective appraisal of intent must be imputed to the Parliament which points against total invalidity. That reasoning applies with great force in this case and that would be an additional reason why this application for leave to appeal against the confiscation order must be rejected.[15]We, therefore, reject the applications for leave put forward by Mrs Gore not merely on the basis that they were brought out of time and no adequate reasons have been put forward, but also on the total lack of merits for them.