This week’s Digest considers a judgment of the Supreme Court in which it examined whether a confiscation order can be made in circumstances where some of the offences committed by the defendant occurred before the Proceeds of Crime Act 2002 was commenced. It also considers three judgments of the Court of Appeal (Criminal Division). The first relates to whether the trial judge failed to take account of the defendants’ ages when sentencing them for manslaughter. In the second the court examined whether the prosecution can appeal against the length of a default order. The third examined the extent to which there can be an appropriation where the defendant causes the victim to transfer funds from their bank account to the defendant’s.
R v McCool [2018] UKSC 23
The judgment was handed down by Lord Kerr on 2.5.18
The Supreme Court considered the interpretation of art. 4(1) of the Proceeds of Crime Act 2002 (Commencement No. 5, Transitional Provisions, Savings and Amendment) Order 2003. The court held that the Crown Court has jurisdiction to make a confiscation order even if some of the offences of which the defendant was convicted pre-dated 24 March 2003. Such offences could not, however, be treated as candidates for confiscation orders under the Proceeds of Crime Act 2002 (‘POCA 2002’), but had to be dealt with under the legislation which applied on the date when the first offence occurred.
The defendants were convicted of various dishonesty offences. One of these offences was committed before the commencement of POCA 2002. The Crown Court made a confiscation order in respect of the offences that were committed after 24 March 2003. The issue for the Supreme Court was the correct interpretation of art. 4(1) of the Proceeds of Crime Act 2002 (Commencement No. 5, Transitional Provisions, Savings and Amendment) Order 2003. This provision provides:
“Section 156 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 156(2) was committed before 24 March 2003”.
It was submitted on behalf of the defendants that the use of the words “any of the offences” in article 4 indicated that, if any of the offences of which the defendant was convicted pre-dated 24 March 2003, none of the offences, even those which were committed after that date, could be treated as candidates for a confiscation order under POCA 2002. They had to be dealt with under legislation which applied on the date when the first offence was committed. Rejecting this submission, Lord Kerr stated that such an interpretation would produce a wholly anomalous result. His Lordship held that it was plainly Parliament’s intention that offences which were committed before 24 March 2003 should not be included in the s. 156 consideration. It was also Parliament’s intention that all offences committed after that date which could generate confiscation orders under POCA 2002 should be dealt with under s. 156. It could not have been Parliament’s intention that a swathe of post-2003 offences should be removed from the Act’s purview simply because the defendant was convicted of an associated offence before the relevant date. Such an outcome would be wholly unintended and plainly at odds with the entire scheme of the legislation. The court concluded that Parliament’s intention in enacting POCA 2002 was that all offences committed after the date of its coming into force should be subject to its regime, irrespective of whether they were associated with offences committed before the commencement date. The court considered, in obiter dicta, the power of the Court of Appeal to correct errors by substituting an order, if satisfied that it was in the correct sum, under the correct statutory regime. Although the court declined to resolve the issue conclusively, it suggested that such a power does in fact exist.
R v Hobbs [2018] EWCA Crim 1003
The judgment was handed down by Lord Burnett CJ on 3.5.18
The defendants appealed against their sentence on the basis that the judge failed to have regard to the appropriate sentencing guidelines for children and young people. The court agreed that the sentences failed to have regard to the fact the defendants were under the age of 18 at the time of the offending.
Tony Badenoch QC represented the first defendant
The defendants pleaded guilty to the manslaughter of the victim after throwing a lit marine distress flare into the car in which he was sleeping. The flare had earlier been stolen from a boat moored nearby. It was submitted on behalf of the defendants that the judge’s sentence was manifestly excessive given their age at the time of the offence. The Court of Appeal observed that there was no definitive guideline for manslaughter and noted that it is a notoriously difficult crime to sentence because it covers a wide range of conduct. The court noted that all sentencing has at its heart assessments of harm and culpability. In cases of manslaughter the harm, namely death, is always very high. But culpability can range from conduct only just shy of that needed for murder down to conduct which in colloquial terms might be described as accidental. Sentences for manslaughter properly range from long indeterminate or determinate sentences to, exceptionally, a non-custodial sentence. The Court of Appeal cited a number of recent cases that have specifically considered manslaughter sentences in respect of young people. Although these cases are all fact-specific, the court stated that they demonstrate that the modern approach of the courts to sentencing those aged under 18 for manslaughter is to look carefully at the age, maturity and progress of the young offender in each case. That is also necessary in cases involving young people who offend before they are are 18, but are sentenced when technically adults, and also young people who offend in early adulthood but are far from the maturity of adults. Turning to the present case, H was 17 at the time of the offending. The Court of Appeal stated that the judge appeared to have had little regard to the fact that she was only 17 at the time of the offending. The court concluded that the sentence imposed did not reflect the age, immaturity and resultant culpability of H at the time of the offending. The court substituted a sentence of 5 years’ detention. In relation to DM, who was only just 15 when the offence was committed, the court substituted a sentence of 3.5 years’ detention.
R v Mills [2018] EWCA Crim 944
The judgment was handed down by Simon LJ on 1.5.18
The prosecution appealed against a default term of imprisonment imposed on the defendant in respect of a confiscation order. The prosecution argued that the judge’s decision to fix a default term of 18 months in default of payment of a confiscation order of £661,027 amounted to an error that the Court of Appeal ought to correct. The court concluded that it had no jurisdiction to hear an appeal in respect of a default order.
The defendant pleaded guilty to conspiracy to defraud and to conspiracies to convert and conceal criminal property. He was sentenced to seven years’ imprisonment. The judge assessed the benefit figure at £9 million. The recoverable amount was assessed at £661,027. A default term of 18 months was imposed. The prosecution appealed on the basis that the default term was too low as the confiscation order fell within the bracket of £500,000 to £1 million with a maximum default term of seven years. It was submitted on behalf of the defendant that the Court of Appeal did not have jurisdiction to determine a prosecution appeal against a default term. In agreeing with this submission, the court observed that s. 31 of POCA provides a general right of the prosecution to appeal against the making of a confiscation order. Section 32(1) provides that on an appeal under s. 31(1) the Court of Appeal may confirm, quash or vary a confiscation order. The Court of Appeal rejected the prosecution’s argument that a default sentence for non-payment of a confiscation order is part of the confiscation order and is therefore amenable to appeal. The court referred to the earlier case of Ellis [1992] 2 Cr App R (S) 403, holding that an essential part of the reasoning in that case was that the confiscation order and the default order are two orders which are distinct from one another. The Court of Appeal concluded that the prosecutor may not appeal against a default order. This was characterised as an unsatisfactory outcome, since something seemed to have gone wrong in the present case. The court stated that it might therefore be thought desirable to enable the prosecution to challenge default terms.
R v Darroux [2018] EWCA Crim 1009
The judgment was handed down by Davis LJ on 4.5.18
The defendant was convicted of the theft of monies belonging to the housing association for whom she worked in respect of false monthly overtime claims. The offence related to the balance in the association’s bank account. She submitted false payment forms, causing funds to be transferred from the association’s account into her own. The court quashed the defendant’s conviction on the basis that her actions did not amount to an appropriation.
The defendant worked for a housing association. By submitting false overtime forms, she obtained £50,000 to which she was not entitled. This was paid into her bank account from the association’s account. The Court of Appeal stated that the issue was whether there had been an appropriation. In this instance, the defendant’s false monthly forms had persuaded the association to direct payment out of its bank accounts. A chose in action is obviously capable of being stolen. The court observed that there is a potential distinction between (a) a defendant’s own direct act in respect of the victim’s property, where the defendant has dishonestly obtained the victim’s consent and (b) a defendant’s act causing the victim himself to transfer his property by reason of his consent having been dishonestly so obtained. The Court of Appeal cited Naviede [1997] Crim LR 662 in which Silber J stated: “In other words, we consider that where a victim causes a payment to be made in reliance on deceptive conduct on the part of the defendant there is no “appropriation” by the defendant”. The Court of Appeal doubted further aspects of the court’s reasoning in that case, especially since the court did not refer to a number of judgments of the House of Lords. The court concluded that there were no facts to establish the actus reus of theft. In submitting the monthly time forms, the court concluded that the defendant was not assuming any rights of an owner. The monthly forms conferred no rights on the defendant with regard to the bank account. Her actions were too far removed to be an act of appropriation. Davis LJ stated that “conduct which ultimately is causally operative in reducing a bank balance does not necessarily become an assumption of rights of the owner with regard to the bank balance simply and solely because it is causally operative”. The judgments in similar cases could be distinguished on the basis that in those cases the defendant was a signatory on, and had direct and authorised control of, the account in question. The court was critical of the decision to charge the defendant with theft rather than fraud by false representation, which would have been more appropriate.
Men wrongfully imprisoned for 24 years seek compensation
The fairness of the criminal courts process is being considered by the Supreme Court this week when two men who spent a total of 24 years wrongfully imprisoned seek compensation for their ordeals.
The full story can be read here.
UK’s longest-serving prisoner released after nearly 43 years
Britain’s longest-serving prisoner has been released after nearly 43 years. He had served a sentence almost two decades longer than other prisoner in the UK convicted of a similar crime when he walked out of HMP Warren Hill in Suffolk on Wednesday morning.
The full story can be read here.
