This week’s edition considers two judgments from the Court of Appeal (Criminal Division). In Abbott and others the Court of Appeal (Criminal Division) gave guidance as to how to calculate the appropriate sum for a surcharge when sentencing multiple offences, imposing multiple sentences or dealing with an offender for a breach of an existing offence. In Dines, Neave and O’Connor v DPP the Court of Appeal (Criminal Division) considered whether a procedure for admitting criminal liability under Italian law was a conviction for the purpose of enforcing an Italian confiscation order in this jurisdiction.
R v Abbott and others  EWCA Crim 516
The judgment of the court, available here, was handed down on 08/04/20 by Fulford LJ. Victoria Ailes appeared on behalf of the Secretary of State for Justice, intervening.
The Court of Appeal (Criminal Division) gave guidance as to the application of the surcharge when sentencing an offender for multiple offences, and when dealing with an offender for a breach of an existing court order.
The court heard three conjoined appeals which raised issues of principle in relation to surcharge orders. The court sought to answer the following questions:
i) If a sentencing court is dealing with more than one offence and the disposals are the same (i.e. a fine or a period of imprisonment), is the amount of the surcharge calculated by reference to the total sentence imposed (i.e. the aggregate of the individual fines or the total imprisonment) or is the amount of the surcharge calculated by reference to the highest of the individual sentences imposed?
ii) If there is a mixed disposal (i.e. a fine and a period of imprisonment), how is the surcharge calculated?
iii) If the sentencing court is dealing with the activation of a suspended sentence, or breach of a community order, would any further sentence attract another surcharge, and how would the surcharge be calculated in relation to other new offences.
Whether the surcharge should be calculated by reference to the total sentence
Where a court is sentencing an offender for multiple offences, the amount of the surcharge under s.161A of the Criminal Justice Act 2003 and the Criminal Justice Act 2003 (Surcharge) Order 2012 (SI 2012/1696) should be calculated by reference to the total sentence imposed (i.e. the total period of imprisonment ordered, or the total amount of any fine), rather than the greatest individual sentence imposed for an offence (i.e. the longest individual sentence of imprisonment or the longest individual fine imposed for an offence). The Sentencing Council’s guidance to the contrary should not be followed. The statutory language plainly contemplates that a court may deal with an offender for more than one offence by way of a single disposal and this approach will remove the self-evident anomalies that can arise depending on how the overall prison sentence imposed for a number of offences is structured (viz. whether the individual custodial sentences are to be served concurrently or consecutively) ( – ).
Where there is a mixed disposal
In a case involving a fine and a period of imprisonment, the surcharge is the higher of the amount corresponding to the aggregate fine and the amount corresponding to the aggregate period of imprisonment. The same principles apply to any other available combination of orders, and the position is the same whether there is a mixed disposal in relation to a single offence, or different disposals in relation to different offences ( – ).
Where dealing with an existing order
The duty to impose a surcharge under section 161A of the 2003 Act is discharged when the court first sentences the offender. Section 161A contains no duty or power to order an offender to pay a second surcharge and, accordingly, the provision is not engaged for a second time when the court “deals with” an offender on a second or subsequent occasion. It follows that when the court makes an order activating a suspended sentence of imprisonment, or taking action upon breach of a community or other order, and at the same time sentences an offender for new offences, the surcharge should be calculated only by reference to the new offences. However, where applying the transitional provisions in the amending orders, the surcharge will still need to be calculated by reference to the charging regime applicable on the date of the commission of the earliest offence the court is dealing with (not withstanding that the amount of the surcharge will not otherwise be affected by a sentence imposed on breach). If the court is minded to deal with an offender for a breach of an existing order they will therefore need to identify the date that that offence was committed on. If though the court does not deal with an offender for a breach, and simply allows that order to continue, this would not constitute “dealing” with the offence and so the date of that offence will not matter ( – ).
Dines, Neave and O’Connor v DPP  EWCA Crim 552
The judgment of the court, available here, was handed down on 23/04/20 by Davis LJ.
The Court of Appeal (Criminal Division) held that when determining whether a procedure involving admission of an offence constituted a conviction for the purposes of Article 21 (2) of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, this requires first an assessment of whether the procedure was a conviction in the requesting state, and then whether the procedure was a conviction for the purpose of the order. When interpreting the 2005 Order it should be borne in mind that it intends to promote international cooperation in the effective enforcement of confiscation orders.
The appellants had been subject to Italian confiscation orders in relation to which they had entered into a “patteggiamento”. A patteggiamento is a widely used procedure in the Italian criminal courts and involves the entering into of an agreement whereby the defendant in criminal proceedings proposes, in exchange for an agreed penalty, to renounce any defence or challenge to the charges which he faces in those criminal proceedings. The distinction between the procedure and a guilty plea in this jurisdiction is that in Italy if a defendant openly admits his responsibility that will be treated as admissible evidence but the judge of the Italian court still is required to go on to appraise the case on the evidence and the court will give its judicial determination, in the form of a pronouncement of conviction. A request had been made for the confiscation orders to be registered and enforced in this jurisdiction and the Crown Court ordered the registration and enforcement of the orders. The appellants appealed, submitting that they could not be registered as one of the conditions set by Part 2 of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 is that such an order has been made consequent on the conviction of the person named in the order, and that the patteggiamento did not constitute a conviction and was better conceived of as a negotiated settlement.
The Court of Appeal (Criminal Division) dismissed the appeal. The first issue (which is a matter of Italian law) is whether a sentenza di patteggiamento counts as a conviction under Italian law. For if it does not, then at the outset it cannot be conceived that there was here an external order which could properly be the subject of registration under Article 21 of the 2005 Order. If, however, it does, then the second issue (which is a matter of English law) is whether it counts as a conviction for the purposes of Article 21 (2) of the 2005 Order. Even if a patteggiamento does constitute a conviction as a matter of Italian law it does not follow that it necessarily must constitute a conviction for the purposes of Article 21 (2) of the 2005 Order as a matter of English law ().
In relation to the first issue, having considered the expert evidence a sentenza di patteggiamento is a conviction for the purposes of Italian law (). In particular, it was highly relevant that a sentenza di patteggiamento allowed for the imposition of an immediate custodial sentence of up to five years in compliance with Article 5(1) of the ECHR ( – ). It was not relevant that the appellants were advised that a patteggiamento did not convey an admission of guilt; the effect of a patteggiamento does not vary depending on the subjective beliefs and understanding of the individual accused or their lawyers. The matter has to be assessed objectively ().
In relation to the second issue, the features of a patteggiamento show that it is to be regarded as a conviction for the purposes of Article 21(2) of the 2005 Order (). It is to be taken as known to those drafting the 2005 Order that the procedures of requesting states, which do not have the common law, would differ, and perhaps significantly so, from those applicable in England and Wales. One illustration is that such states (which include Italy) simply may not have the notion of pleas of guilt, on which the court will act ordinarily without further enquiry in the way our (common law) jurisdiction does. The use of the word “conviction” in Article 21(2) has to be read with all that in mind (). The interpretative approach to Article 21(2) is to be taken as intending to promote international cooperation in the effective enforcing of confiscation orders (). The implied admission of guilt and the subsequent assessment by the judge in Italy of whether it is appropriate to accept the sentenza di patteggiamento amply suffices to make the patteggiamento a conviction for the purposes of Article 21(2) of the 2005 Order ( – ).
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The request and relevant documents can be read here.
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