Ward, R v [2010] EWCA Crim 1932

Case No 200903579/B4

[2010] EWCA Crim 1932

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 15th July 2010

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE THOMAS

MRS JUSTICE RAFFERTY DBE

MR JUSTICE BEAN

Between

R E G I N ACrown

Between

BARRY WARD

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Mr I Krolick appeared for Applicant

Mr A Waterman QC appeared for Crown

J U D G M E N T

[1]MR JUSTICE BEAN: On 30th September 2005 in the Crown Court at Leeds, the applicant received sentences amounting to 3 years' imprisonment for various offences under the Proceeds of Crime Act 2002. Confiscation proceedings followed and on 16th October 2007 His Honour Judge Ibbotson made a confiscation order in the sum of £287,398.42.

[2]Mr Ward sought and obtained leave to appeal to this court against that order. An appeal was dismissed by the full court on 11th December 2008.

[3]An application was made by application notice dated 31st May 2009, to the Crown Court, by the defendant, to vary the confiscation order downwards. That application was made under section 23 of the Proceeds of Crime Act 2002. It was dismissed by Judge Ibbotson in a ruling which he gave on 26th June. We have before us an application for leave to appeal against that decision.

[4]We grant leave. The Criminal Appeal Office drew to our attention and to the attention of the parties a question as to whether we have jurisdiction to hear such an appeal and to that we turn first.

[5]The standard type of confiscation order under the Proceeds of Crime Act 2002 is made under section 6 and the defendant can appeal against it. There are other forms of order made in confiscation proceedings proceeded for under the Act. For example, sections 19 and 20 provide for confiscation orders made on a prosecution application to reconsider where originally no confiscation order had been made. If such an application is successful the defendant can appeal.

[6]Sections 21 and 22 provide for confiscation orders in increased amounts, made again on a prosecution application for reconsideration, where there was an original confiscation order. Again, the defendant can appeal.

[7]Taking the sections out of sequence there are specific provisions in section 27 and to 29 dealing with a defendant who has absconded. We need not consider those. The important section, for present purposes, is, as we have said, section 23. That provides for a Crown Court to vary a confiscation order downwards, on the application of the defence where it is suggested that the amount of available assets is inadequate to meet the original order.

[8]There is a specific provision for appeals in the 2002 Act contained in section 31, but that deals with prosecution rights of appeal against the making of a confiscation order, or a decision not to make a confiscation order.

[9]The defence rights of appeal are contained in the Criminal Appeal Act 1968. By section 9 of that Act, a defendant may appeal to this court against any sentence, whether passed on his conviction or in subsequent proceedings. By section 50 of the 1968 Act, it is provided that "sentence" in relation to an offence includes any order made by the court when dealing with an offender, including in particular:

"... (ca) a confiscation order under Part II of the Proceeds of Crime Act 2002 CB an order which varies a confiscation order made under Part II of the Proceeds of Crime Act 2002 if the varying order is made under section 21, 22 or 29 of that Act but not otherwise."

For the sake of completeness we note that section 50(1) goes on to include in its definition of sentence:

"a confiscation order under Drug Trafficking Act 1994 other than one made by the High Court, a confiscation order under Part VI of the Criminal Justice Act 1988 and an order varying a confiscation order made under either of the last two mentioned statutes, as well as an order made by the Crown Court varying the confiscation order made by the High Court by virtue of section 19 of the Act of 1994."

[10]So the relevant provision is paragraph (cb) of section 50(1). That makes it clear, in our view, that an order varying a confiscation order made under section 21, 22 or 29 of the 2002 Act is included in the definition of “sentence”, but an order for variation of a confiscation order made under section 23 is not.

[11]Mr Ivan Krolick, for the appellant, has submitted that his appeal in this case is not in fact against an order varying confiscation order, but is against Judge Ibbotson's refusal to vary a confiscation order. That we think is an unsustainable distinction. It cannot have been the intention of Parliament that if, for example, Judge Ibbotson had acceded to an application to varying the original confiscation order made in 2007, by a small sum, say £100 because of an arithmetical error had been noticed, then that order, or the refusal to do more than vary the previous order by £100, could be the subject of an appeal, whereas a refusal to make any variation at all could not.

[12]Mr Krolick alternatively argues that it cannot have been the intention of Parliament to exclude appeals from decisions under section 23 adverse to the defendant, when other sections are made the subject of a right of appeal or at least application for leave to appeal to this court.

[13]It is not necessary to ascertain the motives of Parliament if the exclusion is clear, as we think it is, but we can at least hazard a guess. Some orders of criminal courts, such as a typical sentence of imprisonment, can be the subject of one appeal to this court and then the defendant has reached the end of the road subject to invoking the mechanism provided by the establishment of the Criminal Cases Review Commission.

[14]With a confiscation order, which has been, as the 2007 order was in this case, the subject of an unsuccessful appeal to this court, the defendant has not quite reached the end of the road, because if the provisions of section 23 are satisfied he has the opportunity of applying to the Crown Court for a variation of the order in his favour there. We see no reason why Parliament should not come to the conclusion that the concession to defendants should only extend as far as the opportunity to make an application to the Crown Court (preferably no doubt listed before the judge who made the original order) but should not be the subject, in the event the defendant is dissatisfied with the result, of an appeal to this court. Accordingly, it seems to us that we have no jurisdiction to hear the appeal and the appeal therefore falls to be dismissed on that ground.

[15]Even if that were wrong, however, we think that the appeal falls to be dismissed on another ground also.

Judge Ibbotson, in his ruling, said this:

"This is not an application to vary the order by showing, for example, that a value attributed earlier to a specific asset has turned out to be too high. The obvious example would be if a house had been valued at 2007 prices and was now being sold at 2009 reduced property values. In that case one could see why a Defendant seek a variation of the order which application be based on a change of circumstances since the order was made, that however is not this case. It appears to me that the Defendant's application is, as Mr Stubbs [counsel for the Crown] describes it in his skeleton, an attempt to re-litigate my earlier rulings about the Defendant's assets."

He went on:

"...in seeking to reopen the matter, the Defendant is not seeking to vary the confiscation order which I made but to appeal against it. I cannot see that the intention of Section 23 can be to confer on a Defendant against whom an order has been made the right to re-open the matter in this way... In my view a Defendant should not be allowed to reopen the original decision by dressing up an appeal as a variation, and for these reasons the application is dismissed."

[16]In the case of R v Younis

[2009] 2 Cr App R 34

this court, with my Lord, Thomas LJ, presiding, at a hearing at which it appears neither party drew the court's attention to the jurisdiction point, held that it is indeed an abuse of process to make an application under section 23, where it is in effect an attempt to relitigate an issue determined against the defendant in the original confiscation proceedings.

[17]Mr Krolick has not persuaded us that Judge Ibbotson was wrong in that ruling which he gave. We would therefore dismiss this appeal on this ground also.

[18]MR KROLICK: Your Lordship did say that you granted leave to appeal. Can I ask if that is permission to appeal, I think that is the modern description.

LORD JUSTICE THOMAS: Crime is 'leave', civil is 'permission'. In the civil courts you ask for 'permission', in this court you ask for 'leave'.

[20]MR KROLICK: Not according to the forms that is what is worrying me. Can I ask the first question I have in those circumstances, I would ask your Lordship for a representation order for today?

LORD JUSTICE THOMAS: We see no reason why you should not have one.

[22]MR KROLICK: Thank you my Lord.

[23]My Lord, the other thing I wish, have the temerity to ask your Lordships to certify, pursuant to section 33, that a point of law of--

LORD JUSTICE THOMAS: -- which do you say is the point of law of general importance?

[25]MR KROLICK: Can I read the question?

LORD JUSTICE THOMAS: Which is it?

[27]MR KROLICK: The jurisdiction point.

LORD JUSTICE THOMAS: The problem with this case, Mr Krolick, is that it is hopeless on the second point.

[29]MR KROLICK: Yes it does, you only get there on jurisdiction.

LORD JUSTICE THOMAS: We have dismissed the appeal.

[31]MR KROLICK: May I also have the temerity to ask the court that I have not phrased it to certify the Younis point as well?

LORD JUSTICE THOMAS: The Younis point, we cannot, it is an abuse of process. Surely it cannot be right -- let us hear the Crown on this.

[33]MR WATERMAN: My Lord has all the points I could make about this. They are self-evident. The Younis point we would submit is unarguable.

LORD JUSTICE THOMAS: The problem is the Younis point is that it is just not a point of law of general public importance. It does seem to us in a case where the whole thing is completely academic, even if we had jurisdiction we would have dismissed it, to take it in this case, to say there is a point of general public importance in this case when it can make no earthly difference to the outcome would really not be sensible.

[35]MR KROLICK: The difficulty with the Younis point, of course, theoretically in fact practically, the decision on the Younis point, this case did not involve that decision. That is obiter because of the findings on the first point. Because once you have no jurisdiction what your Lordship has said about Younis is neither here nor there, with the greatest of respect to the court.

LORD JUSTICE THOMAS: It is. We did say that if we had jurisdiction -- if you were to go to their Lordships' House and persuade them that we had jurisdiction, our answer is clear. It cannot be right to take a case to their Lordships' House and say it is a matter of general public importance when actually if you were to win you would lose any way, we decided that the point is hopeless.

[37]MR KROLICK: That, in my respectful submission, would be a matter for them.

LORD JUSTICE THOMAS: No. How can it be a point of general public importance in case where, even if you were to succeed, you would fail? It cannot be. Try on another case.

[39]MR KROLICK: I have made my submission.

LORD JUSTICE THOMAS: If you were able to have -- take the Picasso case. I am not going to invite you to do any more.

[41]MR KROLICK: Please would your Lordship give me 30 seconds if necessary. Your Lordship has made that decision, it is binding on all courts. No matter what the merits of the case, any defendant in that position is going to be prevented from coming here because of your Lordships--

LORD JUSTICE THOMAS: You can always come here and say you wish to argue it is wrong and take it further. But not in this case. We simply cannot allow a case to go forward when it can make no difference to the decision.

[43]MR KROLICK: As soon as your Lordship makes this decision on jurisdiction, no one is going to get before your Lordships to be able to argue it. They will not have permission to appeal because your Lordship has made the decision clear. Any decision which your Lordship makes from then on could only be on an application. Your Lordships would not be entitled, in those circumstances, to depart from this ruling today and therefore the matter could never be heard by the Supreme Court.

LORD JUSTICE THOMAS: That is not right. You would always say about a decision that you wish to argue it is wrong, put an argument to this court say you are bound but I want to go hereafter. But it cannot be right in a case where it makes no difference. There we are. You have made the point. That is our answer. Thank you very much indeed. I hope you did not have too bad a journey down. We are grateful to you, Mr Krolick, for arguments on a short but not uninteresting little point.

[45]MR KROLICK: Can I say I have enjoyed it myself.