R v Pope

The House of Lords held that, on a committal for sentence under section 38 of the Magistrates' Courts Act 1980, the Crown Court has power to make a confiscation order under section 71 of the Criminal Justice Act 1988 in respect of offences committed before 30 September 1998. The court concluded that section 42 of the Powers of Criminal Courts Act 1973 expressly gives the Crown Court power to deal with an offender "in any manner in which it could deal with him if he had just been convicted of the offence on indictment", and that the amendments to section 71 (including the definition in section 71(1E)) were not intended to qualify or undermine that ordinary statutory scheme. The decision in R v Whellem, which had held to the contrary, was overruled.

Background and procedural posture:

The defendant pleaded guilty in the Magistrates' Court to multiple indictable offences triable either way and was committed to the Crown Court for sentence under section 38 of the Magistrates' Courts Act 1980. The Crown Court sentenced him and made a confiscation order under section 71 of the Criminal Justice Act 1988. The Court of Appeal quashed the confiscation order, following R v Whellem, and certified a question whether the Crown Court sitting on committal for sentence has power to make confiscation orders under section 71 in respect of offences committed before 30 September 1998. The Crown appealed to the House of Lords.

Nature of the claim and issues:

• Nature of relief sought: The Crown sought restoration of the confiscation order and a declaration that the Crown Court had jurisdiction to make such an order on a s.38 committal for sentence.
• Issues framed by the court: (i) whether s.42 of the Powers of Criminal Courts Act 1973 supplies the Crown Court with the power to make a confiscation order on committal for sentence; (ii) whether the definition in s.71(1E) of the Criminal Justice Act 1988 (as amended) or subsequent amendments produced a lacuna or altered that power; and (iii) whether the Court of Appeal in R v Whellem was correct to hold there was no jurisdiction.

Reasoning and findings:

The House of Lords preferred the Crown's construction. The court emphasised the clear wording and purpose of s.42: to enable the Crown Court, on committal for sentence, to exercise the same powers it would have if the defendant had been convicted on indictment. That construction, together with the statutory scheme, showed no intention that s.71(1E) should qualify s.42 or prevent confiscation orders being made on committal for sentence. The Lords rejected the argument that subsequent amendment (section 83 of the Crime and Disorder Act 1998 inserting s.71(9A)) was necessary to fill a lacuna, and declined to rely on parliamentary materials to alter the clear statutory meaning. As a result, R v Whellem was overruled and the certified question answered in the affirmative. The case was remitted to the Court of Appeal for further consideration of other sentencing and assessment issues.

Appeal allowed. The House of Lords held that the Crown Court has jurisdiction to make confiscation orders under section 71 of the Criminal Justice Act 1988 when hearing a defendant committed for sentence under section 38 of the Magistrates' Courts Act 1980. Section 42 of the Powers of Criminal Courts Act 1973 gives the Crown Court power to deal with such offenders as if convicted on indictment and this was not limited by the amendments to section 71; the Court therefore overruled R v Whellem and remitted the matter to the Court of Appeal.

Defendant pleaded guilty and was convicted in the Magistrates' Court (Huntingdon) on 20 January 2000 and committed for sentence under s.38 Magistrates' Courts Act 1980. The Crown Court (Peterborough) on 26 May 2000 imposed sentence and made a confiscation order. The defendant appealed to the Court of Appeal (Criminal Division), which quashed the confiscation order following R v Whellem [2000] 1 Cr App R (S) 200 and certified a question of law. The Crown appealed to the House of Lords, which allowed the appeal ([2002] UKHL 26) and remitted the case to the Court of Appeal.