Hall, R v [2014] EWCA Crim 2413

Case No 2013/04248/A6[2014] EWCA Crim 2413
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 6 th November 2014
The Strand
London
WC2A 2LL
B e f o r e:
LADY JUSTICE SHARP DBE
MR JUSTICE BLAKE
and
THE RECORDER OF WESTMINSTER
(HIS HONOUR JUDGE McCREATH)
(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrown- v -
Between
MARTIN ROBERT HALL
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No 020 7404 1424(Official Shorthand Writers to the Court)
Mr J Fielding appeared for AppellantMr A Wright appeared for Crown
J U D G M E N TThursday 6 th November 2014
[1]On 17th January 2013, following a trial in the Crown Court at Reading, the appellant was convicted of an offence of dangerous driving. He had changed his plea, after the jury had been sworn, to guilty to an offence of driving whilst disqualified. On 21st January, at the same court, he was sentenced by His Honour Judge Ross as follows: on count 1 (dangerous driving), fifteen months' imprisonment; on count 2 (driving whilst disqualified), six months' imprisonment; for the summary offence of driving with excess alcohol, six months' imprisonment; and for using a vehicle without insurance, no separate penalty was ordered. All the sentences were ordered to run concurrently, making a total of fifteen months' imprisonment in all. He was disqualified from driving for ten years and until he passes an extended driving test, as was obligatory. Further, the judge made a deprivation order under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of the vehicle that the appellant was driving at the time (a Mercedes E320).[2]The appellant appeals against the imposition of the deprivation order by leave of the single judge, who granted an extension of time.[3]In his sentencing remarks

the judge said this:

"I am not in a position to make any order for costs, but I am going to make a deprivation order in respect of the Mercedes motor car ... That can be forfeited and sold by the Chief Constable and that may go in some way to defray the cost to the public purse of this case. I am satisfied the statutory criteria are made out, but I make it clear that that order is not to be put into effect until a period of 56 days has elapsed. If anyone who maintains ownership of this vehicle wishes to make representations to this court, they may."
[4]The underlying driving offences were committed on 26th February 2012. At that time the appellant's father was the registered owner of the Mercedes motor vehicle. Both the appellant and his brother were named as additional drivers on the insurance policy for the vehicle, but, unbeknown to the father, the appellant had been disqualified from driving for a period of four years in June 2008.[5]At some point on 25th February the appellant took possession of his father's car. He drove it in the afternoon. He went to a party in London where he consumed alcohol. He drove the car back to Maidenhead to rejoin a friend, and when that friend was not present he decided to drive it back to his premises in Reading together with a passenger. The vehicle was then observed by the police being driven in an erratic manner and at high speed. The police followed it for a period but abandoned the chase due to the road conditions. They went to the home of the registered owner, where the appellant and his passenger were found, together with the Mercedes car. They were breathalysed. Both were over the limit; the appellant was nearly three times over the limit.[6]The appellant lied in interview and at trial about who had been driving the car. He attempted to blame his passenger.[7]The appellant's father appears not to have been present at the time of the sentencing hearing. Between the time of the offence and the time of the sentencing hearing it is apparent that the father transferred the title of the Mercedes to the appellant's brother, who lived far away from the Reading area. In subsequent information which has been provided to this court, it appears that he did so precisely in order to prevent the appellant from being tempted into taking possession of the vehicle if and when he regains his liberty.[8]It seems that an attempt was made under the slip rule to bring the matter before the judge, but by the time the appellant's father and the now registered owner of the vehicle had been notified of the order, the period of 56 days had expired, and so by the time it came before the judge he took the view that he had no jurisdiction to review the matter. It seems that the decision to make a deprivation order was that of the judge. It was not indicated to the advocates appearing below that such an order would be made, and there does not appear to have been any detailed consideration of either the statute or the authorities touching upon the subject, although it may have been drawn to the judge's attention that it might not be appropriate to make an order if the vehicle did not belong to the appellant, who was the offender in the conduct with which the court was concerned.[9]Section 143 of the Powers of Criminal Courts (Sentencing) Act 2000, so far as relevant, provides as follows:
"(1) Where a person is convicted of an offence and the court by or before which he is convicted is satisfied that any property which has been lawfully seized from him, or which was in his possession or under his control at the time when he was apprehended for the offence or when a summons in respect of it was issued – (a) has been used for the purpose of committing, or facilitating the commission of any offence; or (b) was intended by him to be used for that purpose, the court may (subject to subsection (5) below) make an order under this section in respect of that property. ... (3) An order under this section shall operate to deprive the offender of his rights, if any, in the property to which it relates, and the property shall (if not already in their possession) be taken into the possession of the police."
[10]It transpires that the police did not seize the vehicle on the occasion of the appellant's arrest, so it was not in their possession at the time that the matter came before the court for sentencing; nor, in the light of the information subsequently provided as to the registered ownership of the vehicle, had the police sought to take possession of it. In the course of this appeal this morning, Mr Wright, who appears for the prosecution (but did not appear below) does not contend that this is an order that should have been made, and points out that it was not one that was asked for by the prosecution.[11]The statutory basis for making an order does not, depend upon seizure by the police at the time. The judge might have been entitled to conclude that the vehicle was in the possession of the appellant when he was apprehended for the offence. However, in his sentencing remarks the judge appears to have thought that such an order was similar to the making of a forfeiture order, whereas both the terms of section 143(3) and the learning upon the issue demonstrates that that is not the case. The order is of no effect against the true owner of the property if title is not in dispute.[12]The case law on this topic has been reviewed by the Divisional Court in O'Leary International Limited v Chief Constable of North Wales Police [2012] EWHC 1516 (Admin). That case was concerned with proceedings in the magistrates' court under section 1 of the Police Property Act 1897 following the making of a deprivation order made by the Crown Court under section 143 against the owners of transport vehicles; but the judgment of the Divisional Court nevertheless is a helpful summary of a number of decisions of this court dealing with the purpose of the power and when it could be exercised. The court was referred to R v Troth (1979) 1 Cr App R(S) 131, R v Colville-Smith [1990] 1 WLR 958, R v Brookes [2003] EWCA Crim 307, and R v Kearney [2011] 2 Cr App R(S) 106. Having reviewed those cases, the court said:
"23. It is common ground as we have set out that the Orders operated only to deprive the drivers as the offenders of their rights to ownership of the lorries. There was no issue before the magistrates that the lorries were not owned by the drivers. This court and the Court of Appeal Criminal Division have given strong guidance in Troth and Kearney to the effect that a sentencing court should not make orders under section 143. It is therefore right to observe the Magistrates would probably not have made the orders if that case law which the CPS drew to our attention had been drawn to their attention or to the attention of the Crown Court on appeal. However, we must proceed on the basis that the orders under section 143 are extant and we have no power to set them aside in these proceedings."
The court then reviewed whether the making of an order deprived the owner of the opportunity to say that it should not have been made in the context of section 1 of the Police Property Act proceedings, and examined section 144 of the 2000 Act with which we are not presently concerned.[13]The court nevertheless reached its conclusions in the context with which it was concerned at paragraph 24. It disagreed with the contention of the Chief Constable as to the effect of the making of an order on civil rights and, irrespective of its statutory construction, said:
"27. It would in any event plainly be contrary to fundamental principles for an owner to be deprived of any of his rights in proceedings to which he was not a party; the appellants were not party to the proceedings. The Crown Court judge rightly rejected their right to be heard. As the rights of the appellant were not affected by the orders, it is difficult to see how its right to possession can have been affected, even though the effect of the court Order was to transfer possession to the police."
The court confirmed that position in paragraph 28 of its judgment. In addition, it went on to deal with a matter which is not before this court. It concluded that section 144 should be read down to ensure that it is compatible with the rights to possession of property by reading in a proportionality requirement in any case upon which that power was decisive of the issue.[14]In the earlier part of his sentencing remarks,

the judge said:

"... I anticipate, because I reject your evidence in this regard, that the truth of the matter is your father was unaware of your disqualification at the point of your being placed on the insurance policy as a named driver."
There was, therefore, no suggestion that the father, who was the owner of the car at the time of the offence, had been complicit in any way in allowing the appellant to drive whilst disqualified, or when unfit to do so through drink or drugs.[15]We do not have to decide, and it should not be understood that we have considered, whether there may be any circumstances in which section 143 could be used to deprive an offender of possession of a vehicle, even if the offender does not have title to the vehicle. That may need to be examined on another day in another case.[16]However, on the facts as they were before the judge, or could have been if the matter had been properly investigated, there was simply no basis to make the order that he did make. The order that he made did not have the effect that the judge thought it had in his sentencing remarks. It is not suggested that this is an order that should remain, having been the subject of an appeal to this court.[17]In these circumstances, and for these reasons, we quash the deprivation order. The appeal is accordingly allowed. MR FIELDING: The appellant in this matter is privately funded. Legal aid was granted by this court, but because there was private funding in place the legal aid was withdrawn. Might I make an application for costs out of central funds, subject to taxation, given that the appeal has been allowed? (The court conferred) LADY JUSTICE SHARP: The application is refused. We take the view that the application could have been made under the slip rule at a much earlier stage. That would have avoided the need for this hearing entirely.