Crown Prosecution Service v Moulden [2008] EWCA Crim 2648

[2008] EWCA Crim 2648Case No 200803358 B5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NEWCASTLE UPON TYNE CROWN COURT
HHJ Bolton
200803358B5
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/11/2008
Before
LORD JUSTICE PILLMR JUSTICE JACKHIS HONOUR JUDGE ROGERS QC
Between
Crown Prosecution ServiceAppellantLeanne MouldenRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr C Knox (instructed by CPS) for AppellantMiss K Bex (instructed by Garstangs, Solicitors) for RespondentHearing Hearing date : 10 October 2008
JudgmentLord Justice Pill :
[1]This is a prosecution appeal against confiscation orders imposed against Leanne Moulden (“the respondent”) on 2 November 2007. Leave is granted.

Facts

[2]On 18 July 2007, in the Crown Court at Newcastle upon Tyne, before Her Honour Judge Bolton, the respondent pleaded guilty to two counts of attempting to obtain a service by deception and one count of obtaining a service by deception (indictment 006). On the same day, she also pleaded guilty, on a separate indictment, to one count of obtaining services by deception (indictment 337). On 6 September 2007, the respondent was sentenced to a community sentence for 18 months, with a supervision requirement, to be served concurrently in respect of all counts. A confiscation order for £3,602.67 was made under the Criminal Justice Act 1988 (“the 1988 Act”) on indictment 006 and one for £23,000 under the Proceeds of Crime Act 2002 (“the 2002 Act”) on indictment 337.[3]In 2001 the respondent made applications for two credit cards. In each case, she misstated her employment and her earnings. She later obtained services in the form of goods to the value of £2,078 placed on a credit card in the application for which her employment and earnings were misstated (indictment 006). The charge on indictment 337 resulted from her obtaining a mortgage of £23,000, again by falsely stating her employment and annual income. The offences on indictment 006 were all committed before 24 March 2003, on which date the 2002 Act came into force. The offence on indictment 337 was committed on 14 December 2003, that is after the commencement date. We underline that separate confiscation orders were made. That for £3,602.67 was stated to be under the 1988 Act, as amended, (indictment 006) and that for £23,000 under the 2002 Act (indictment 337).[4]Indictment 006 had been signed on 2 March 2007. There were a number of counts against a number of defendants. Indictment 337 was signed on 26 March 2007. It has throughout been accepted on behalf of the prosecution that the offences could not properly have been joined on a single indictment and would have to be tried separately. Some of the offences on indictment 006 were listed for trial and resolved by way of acceptable pleas on 16 July 2007. On 18 July, acceptable pleas were tendered on the remaining counts in 006. Indictment 337 was also resolved by an acceptable plea to a single count. On 6 September 2007, when sentence was imposed, and on 2 November 2007, when the confiscation orders were made, the judge was considering all offences on both indictments.

The Statutory Scheme

[5]At the confiscation proceedings, Mr Knox, for the prosecution, took a preliminary point. He submitted that, for the purpose of the legislation, there was a single set of proceedings before the sentencing judge, notwithstanding the presence of two indictments. It followed that the 1988 Act, as amended, including the assumptions in section 72AA(4), applied and could be used to assess the respondent’s benefit. That would lead to a conclusion that she had benefited to the extent of £524,200.58. The conclusion, he accepted, depended on the success of his submission that a single set of proceedings was before the judge. On behalf of the respondent, Miss Bex does not challenge that conclusion if the premise that there was a single set of proceedings was correct. Her submission was that there were two indictments and therefore two “proceedings”.[6]The meaning of the word “proceedings” in the legislation is thus the central issue between the parties. In this court, Miss Bex takes the further and fundamental point that there is no prosecution right of appeal in the 1988 Act and the prosecution cannot appeal against the order made under that Act.[7]Those being the central issues, the court has not investigated the figures and does no more than summarise the statutory provisions. Section 72AA(1) of the 1988 Act provides, in so far as is material, that the section (including therefore the assumptions in sub-section 4) applies in a case where an offender is convicted in any proceedings before the Crown Court of a qualifying offence which is an offence of a relevant description. Section 72AA(2) provides that a “qualifying offence” is any offence in relation to which certain conditions are satisfied. These conditions require that the offence is an offence to which the relevant part of the Act applies (satisfied in this case) and that it is an offence from which the defendant has benefited.[8]Section 72AA(1)(c) provides that the offence is of a “relevant description” if (amongst other things):
“The offender: (i) is convicted in those proceedings of at least two qualifying offences (including the offence in question); or (ii) has been convicted of a qualifying offence on at least one previous occasion during the relevant period.”
The appellant has “benefited” from the single obtaining by deception count in indictment 006 and the single similar count in indictment 337. The case has been argued on the basis that inclusion in the “proceedings” of the count in indictment 337 is necessary to meet the requirements of Section 72AA1(c)(i). There were no previous convictions to bring sub-section 1(c)(ii) into operation. (i) is convicted in those proceedings of at least two qualifying offences (including the offence in question); or (ii) has been convicted of a qualifying offence on at least one previous occasion during the relevant period.”[9]The appeal turns on the construction of the word “proceedings” in section 6 of the 2002 Act. That provides, in so far as is material:
“(1) The Crown court must proceed under this section if the following two conditions are satisfied. (2) The first condition is that a defendant falls within any of the following paragraphs - (a) He is convicted of an offence or offences in proceedings before the Crown Court. . .” (a) He is convicted of an offence or offences in proceedings before the Crown Court. . .”
[10]The prosecution submit that, for the purposes of section 6, the “proceedings” were all those matters, on both indictments, for which the respondent fell to be sentenced on 2 November 2007. The word covered all matters dealt with on a single occasion. They rely on article 3(1) of the Proceeds of Crime Act 2002 (Commencement No.5, Transitional Provisions, Savings and Amendment) Order 2003 (“the 2003 Order”), made on 20 February 2003. The Order provided that the relevant provisions of the 2002 Act would come into force on 24 March 2003. Article 3(1) provides:
“Section 6 of the [2002] Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 6(2) was committed before 24 March 2003.”
[11]Article 10 of the 2003 Order provides that, where under article 3 a provision of the 2002 Act does not have effect, sections 71 to 89 of the 1988 Act (confiscation orders) shall continue to have effect. Article 7 provides (the statutory references are to the 2002 Act): “(1) This article applies where the court is determining under section 6(4)(a) of the Act whether the defendant has a criminal lifestyle. (2) The tests in section 75(2)(a) and (c) of the Act shall not be satisfied where the offence (or any of the offences) concerned was committed before 24th March 2003. (3) In applying the rule in section 75(5) of the Act on the calculation of relevant benefit for the purposes of section 75(2)(b) and (4), the court must not take into account benefit from conduct constituting an offence which was committed before 24th March 2003. (4) Conduct shall not form part of a course of criminal activity under section 75(3)(a) of the Act where -(a) the offence (or any of the offences) concerned; or(b) any one of the three or more offences mentioned in section 75(3)(a), was committed before 24th March 2003. (5) Conduct shall form part of a course of criminal activity under section 75(3)(b) of the Act, notwithstanding that any of the offences of which the defendant was convicted on at least two separate occasions in the period mentioned in section 75(3)(b) were committed before 24th March 2003.” (a) the offence (or any of the offences) concerned; or (b) any one of the three or more offences mentioned in section 75(3)(a), was committed before 24th March 2003.[12]Section 31(1) of the 2002 Act confers a right of appeal to the prosecutor or the Director of Public Prosecutions:
“If the Crown Court makes a confiscation order the prosecutor or the Director may appeal to the Court of Appeal in respect of the order.”

The Issue

[13]In her ruling,

the judge stated the issue:

“If there are two separate sets of proceedings, the 1988 Act applies to the first indictment in time and the 2002 Act applies to the second. Upon that basis, this Defendant would not fall foul of the ‘lifestyle provisions’ because there are specific provisions excluding offences before the 24th March 2003, the date of the commencement of the 2002 Act (see transitional provisions, Articles 3, 5, 10 and 7). The credit card offences would have to be dealt with under the 1988 Act, the benefit being £3,602 and the mortgage fraud under the 2002 Act, the benefit being £23,000. If, however, there is only one set of proceedings, then the assumptions under Section 72AA(4) could be used to assess the Defendant’s benefit under the 1988 Act, potentially leading to the conclusion that she had benefited to the extent of £524,200.58.”

Submissions

[14]Mr Knox submits that the 2002 Act created a single code in relation to confiscation proceedings. That code should not be fragmented so as to make different offences amenable to different statutes. That would be both unnecessary and unjustified. Because some of the offences to be dealt with were committed before 24 March 2003, the effect of article 3(1) of the 2003 Order was that all offences dealt with on 6 September 2007 were subject to the regime in the 1988 Act, including section 72AA.[15]For the respondent, Miss Bex accepts that the effect of article 3(1) of the 2003 Order is that an indictment containing some offences committed prior to the commencement date of the 2002 Act and some offences which were committed after that date shall be dealt with under the 1988 Act, the relevant parts of which, by virtue of article 10, continue to apply. However, where there are two indictments, there are two “proceedings” for the purposes of section 6(2) of the 2002 Act and the relevant offences for the purposes of article 3 did not include the offence in indictment 337.[16]Miss Bex accepts that if two indictments are, for the purposes of section 6 of the 2002 Act, to be treated as the same proceedings, the court could, under section 72AA, consider all transfers over the preceding six years in a way that proceedings under the 2002 Act could not. It could not have been intended, it is submitted, that offences straddling the commencement date of the 2002 Act, and possibly spread over a long period of time, could attract the provisions of the 1988 Act simply by being listed for sentence on the same day. Much of article 7 would be otiose, it is submitted, if article 3 already has the effect claimed.[17]On the preliminary point,

the judge ruled:

“In my judgment, here the word of the 2002 Act [section 6] is proceedings simpliciter. This legislation is not, as Mr Knox submits, similar to a sentencing exercise. On the contrary, care must be taken to ensure that the correct legislation applies to the correct indictment. If there was a proper basis for joinder of these two indictments, then it could be said that they form part of the same proceedings, but these two indictments cannot. The Act only refers to proceedings, not ‘any proceedings’ . . . I find that the two indictments reflect two separate sets of proceedings and, as a consequence, the two frameworks apply.”
[18]As to the prosecution’s right of appeal, Miss Bex submits that a “confiscation order” in section 31 of the 2002 Act must mean a confiscation order made under the 2002 Act. For certain purposes, the provisions of the 1988 Act remain in force. They too may lead to the making of a confiscation order under that Act and section 31 of the 2002 Act does not retrospectively create a prosecution right of appeal against an order under the 1988 Act.

Conclusions

[19]We agree with the ruling of the judge and with the submissions of Miss Bex on both issues. There are two confiscation orders, one under the 2002 Act and one under the 1988 Act, as amended. There is no prosecution right of appeal against the order under the 1988 Act.[20]However, we consider the submissions on the wording of section 6 of the 2002 Act. As a matter of construction, the expression “proceedings before the Crown Court” means proceedings under a single indictment. The word “proceedings” is perhaps a curiosity of language in that an apparently plural form is customarily used to describe what plainly is a single trial, even if only a single count indictment is involved. An action commenced in a court is normally known as proceedings, as in:
“the proceedings against X in this court.”
As a noun, the word is seldom used in this context without the “s”. As used in section 6 of the 2002 Act, the expression does not cover everything, in whatever form, before the court on the date sentence is to be imposed. The expression “the offences mentioned in section 6(2)”, in article 3(1) of the 2003 Order, does not include offences subject to a separate indictment including only offences committed on or after 24 March 2003.[21]The judge was correct to make two orders, one under each Act, and she applied the correct test to each of them. We do not consider that Professor Thomas’ helpful Commentaries in the Criminal Law Review, (2005) page 147 and 2008 page 814, assist the prosecution on the meaning of the word “proceedings” in section 6 of the 2002 Act. His comment at 2005, 150, about not limiting section 6 is related to the expression “offence or offences” and not to the word “proceedings”.[22]Thus the conclusion of the court is that the prosecution have no right to appeal against the order under the 1988 Act, as amended. In the light of the court’s ruling on the meaning of the word “proceedings”, the appeal against the 2002 order fails and is dismissed.