This week’s Digest considers two judgments of the Court of Appeal (Criminal Division). In the first, the Court considered whether sentences imposed upon individuals for public nuisance convictions arising out of a protest against fracking were manifestly excessive. In the second, the issue was whether failure to comply with s. 15(2) of the Proceeds of Crime Act 2002, i.e. not imposing financial orders on offenders where confiscation proceedings were suspended, rendered financial orders, if they were made, a nullity.
R v. Roberts and others [2018] EWCA Crim 2739
The judgment, available here, was handed down on 06.12.18 by Lord Burnett of Maldon CJ.
The issue in this appeal was whether the sentences imposed upon three individuals for public nuisance – they caused great disruption on the A583 in protesting against the authorisation to commence fracking – were manifestly excessive; two of the appellants had received custodial sentences of 16 months’ imprisonment and the other 15 months. The Court allowed the appeal; the custody threshold in this case was not crossed. The appropriate sentence would have been a community order with an unpaid working requirement. In this case, as the appellants had already spent 3 weeks in custody, the court imposed two-year conditional discharges on each.
The appellants, Mr Blevins (B), Mr Roberts (R), and Mr Loizou (L), were convicted of public nuisance contrary to common law. Their convictions arose out of their conduct in protesting against the authorisation to Cuadrilla by the Oil and Gas Authority to begin hydraulic fracking to explore for shale gas at a site just off the Preston New Road, the A583, near Blackpool. They sat on top of the cabs of lorries containing drilling equipment for between two and half and three days with the result that the carriageway of the road was blocked. B and R were sentenced to 16 months’ imprisonment and L to 15 months. They appealed against those sentences on the grounds that they were manifestly excessive.
The Court allowed the appeal; the sentence they considered should have been imposed was a community order with a significant requirement for unpaid work. At the time of the hearing, however, the appellants had been in custody for three weeks meaning that they had served a sentence equivalent to six weeks. In light of that, the only appropriate sentence was a conditional discharge for two years. The Court rejected the appellants’ primary submission that an immediate custodial sentence was never appropriate for a non-violent crime committed as part of a peaceful protest by reference to the observations of Lord Hoffmann in Margaret Jones [2006] UKHL 16 (at [89] et seq.). They did, however, conclude that the custody threshold had not been crossed in respect of the appellants’ conduct, having regard to the good character of these appellants and the underlying motivation for their criminal behaviour, even taking into account the widespread disruption caused; the judge’s conclusion that the appellants were likely to offend again was flawed.
R v. Sachan [2018] EWCA Crim 2592
The judgment, available here, was handed down on 09.11.18 by Butcher J.
The issue in this appeal was whether a compensation order, made before confiscation proceedings were commenced and contrary to s. 15(2) of the Proceeds of Crime Act 2002, was rendered a nullity. The Court held that it was not, following the reasoning of a different constitution of the Court in R v. Paivarinta-Taylor [2010] EWCA Crim 28, Parliament could not have intended that either the initial compensation order or the resultant confiscation order were a nullity.
The appellant pleaded guilty to a single count of fraud by abuse of position; he had, while employed as Head of Digital at a company called Alison at Home, diverted company funds to a friend of his and to himself. The appellant benefited in the sum of £51,450. The basis of that plea was that the appellant promised to make payment by way of compensation in the sum of £51,450. The appellant was sentenced to a term of imprisonment and at the same time ordered to pay that sum as compensation. Some 5 months later, there was a final confiscation hearing at which the parties agreed a benefit figure of £77,343 and an available amount of £18,545.65; a confiscation order was made in that amount and, at the request of the Crown, it was to be paid by way of compensation. The substantive issue in this appeal was what the consequences were for failing to comply with s. 15(2) of the Proceeds of Crime Act 2002 (“POCA”), which provides that, if confiscation proceedings are postponed, the court must not in the intervening period make certain sorts of financial orders, including compensation orders.
The appeal was dismissed. Although the Crown conceded that an initial compensation order in sentencing should not have been imposed, in the Court’s view it did not render it a nullity. The Court made reference to R v. Paivarinta-Taylor [2010] EWCA Crim 28, which concerned the provisions of s. 72A(9) of the Criminal Justice Act 1988, a section materially similar to s. 15(2) POCA. At para. [42] of Paivarinta-Taylor, Sweeney J said that in such circumstances “Parliament did not intend that the imposition of a fine before making a confiscation order should not render the fine itself invalid, nor did it intend that the Court could no longer proceed to consider the making of a confiscation order, and nor did it intend that the resultant order should be invalid”. In its judgment, the Court considered those observations equally applicable in the context of POCA. The Court rejected the contention that Paivarinta-Taylor could be distinguished and that there were any other grounds on which the compensation order should be varied. There was no danger of liability in this case as the Crown had made an undertaking it would not seek to enforce the confiscation order in such a way that the appellant could be liable for more than the £51,450 originally promised.
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