Townsend - Johnson, R. v [2010] EWCA Crim 1027

[2010] EWCA Crim 1027

Case No. 2009/02021/B2

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 23 April 2010

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

MR JUSTICE DAVID CLARKE

and

MR JUSTICE LLOYD JONES

__________________

- v -

Between

TOM FREDERICK TOWNSEND-JOHNSON

__________________

Computer Aided Transcription by

Wordwave International Ltd (a Merrill Communications Company)

165 Fleet Street, London EC4

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(Official Shorthand Writers to the Court)

__________________

Non-Counsel Application

____________________

J U D G M E N T

[1]This is a renewed application for leave to appeal against sentence following refusal by the single judge.

[2]On 29 September 2008, in the Crown Court at Worcester, the applicant pleaded guilty to four counts of possession of false identity documents with intent. On 31 October 2008 he was sentenced by His Honour Judge Cavell to a total of 27 months' imprisonment for those offences.

[3]On 18 December 2008, before the same judge, the Crown applied for a deprivation order to be made in respect of the applicant's computer. Section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 provides the court with power to deprive offenders of property used for the purposes of crime. Conventionally it is a power that is used to deprive, for example, a person guilty of repeated serious motoring offences of his motor vehicle. Indeed it is used from time to time to deprive burglars, who have used a vehicle in the course of going to premises for the purposes of burglary, of their motor vehicles. It is an order which is to be treated as part of the overall package of punishment imposed by the court. It is a valuable power in appropriate circumstances. However, in this case it was exercised not as part of the sentencing process but separately from, and subsequent to, the imposition of the sentences of imprisonment. It is a power which is based upon the item of property having been used for, or to facilitate, the commission of crime, or intended to be used for such a purpose.

[4]The applicant initially sought leave to appeal against his conviction and sentence. As we read the papers, he has abandoned his application for leave to appeal against conviction. It would have been hopeless. He pleaded guilty to the offences. The false identity documents which he had obtained and which were found in his possession were documents which he had gathered (passports and the like in false names) in the context of an ongoing acrimonious dispute with his former partner over access to, and contact with, his then 5 year old son. It was apparent from what the applicant said to friends, who reported the matter to the police, and from what he said to the Probation Service, that he had acquired the false identity documents because of his intention, when having access to his 5 year old son, to remove him from his mother and to take him overseas under a fresh identity.

[5]The judge passed sentence upon the applicant at a time when he was unrepresented by lawyers, having dispensed with the services of those who had acted for him when he pleaded guilty. One of the points which the applicant wished to pursue was that sentence was unlawful, contrary to section 83 of the Powers of Criminal Courts (Sentencing) Act, having been passed upon him when he was not legally represented. However, that section expressly excepts from the prohibition the circumstance that the applicant, though informed of his right to seek legal representation, declined to do so. We have read the full transcript of the sentencing hearing. It is apparent that the judge, perfectly properly and more than once, asked the applicant if he wished to have legal representation. He declined and indeed he addressed the judge at considerable length in mitigation before sentence was imposed. There is no possible criticism either of the conviction or of the sentence. Insofar as the applicant continues to seek leave to appeal against them, that application is refused.

[6]We turn to the deprivation order in respect of the computer. It seems to us that the making of that order, which was within the court's power because the application was made within 56 days of the passing of the sentence, should not have been made. Much of the discussion at the deprivation hearing concerned the time limit of 56 days because until the summer of 2008 the Crown Court only had power to alter a sentence that it had passed, or to add to it, within 28 days after the passing of the sentence. However, by legislation in 2008 that time limit was increased to 56 days. This hearing took place within that period of 56 days after the sentence was imposed. The discussion between counsel, the judge and the applicant detracted from a more thorough consideration of the merits of the application for the deprivation order. When the facts of the case were outlined to the judge at the sentencing hearing, no mention was made of any material relevant to this case being found on the applicant's computer. There are references in the fuller papers, which we have seen, to the computer being used in connection with the filling in of the application for the passport. Thus the computer fell within the category of property which could be caught. But that was not considered in any detail at the time of the deprivation hearing. The judge appears to have made the order because he was permitted to make it.

[7]The application concerned also the false passports and other materials. The applicant made no objection to those items being taken from him. When it came to the computer (the applicant again unrepresented at the hearing and having not objected to the destruction of the false documents), the following exchange took place:

"JUDGE CAVELL: I am not going to make the order without giving you a chance to respond. Do you understand? THE APPLICANT: I understand, your Honour. I don't see that I could object. JUDGE CAVELL: No. The laptop computer cannot be wiped as the disc so they are applying for that to be forfeited because it was an integral part of the offending. Do you understand? THE APPLICANT: Well, for me it's a moot point, your Honour. JUDGE CAVELL: Well, do you want to say anything else? THE APPLICANT: I would object to a perfectly good computer being destroyed, your Honour."

[8]The question of deprivation, albeit a very small part of the overall sentencing process, had not been considered within the context of the sentencing process. There is authority for the proposition that if a deprivation order is made in conjunction with a substantial sentence of imprisonment, there is a risk of overdoing the punishment: see Archbold at paragraph 5-444.

[9]To deprive the applicant of one computer is not perhaps a substantial punishment, but it may be of importance to him, bearing in mind his devotion to his son and the fact that it contained, he says, old photographic material and so on.

[10]We contrast this type of order with an order such as a Sexual Offences Prevention Order under which a court can ban a sexual offender from having a computer at all. If this computer is removed from the applicant, there is nothing in law to stop him from going out to buy another one and doing on it whatever he may lawfully do. There is, in our judgment, no ongoing risk of him committing the sort of offences he committed then, having now served a long prison sentence for what he did. If there is, then the making of this order would not stop him doing it.

[11]In all the circumstances we have concluded that this is a case in which we should grant leave out of time to appeal against the making of the deprivation order, treat this hearing (albeit in the absence of the applicant) as the hearing of that appeal, and quash the making of the deprivation order. The appeal is allowed to that limited extent.