Flowers & Ors, R v

A refusal to begin confiscation proceedings because of an erroneous view that the Crown Court lacks jurisdiction amounts to an order making no order. It is therefore part of the offender’s sentence and may be reviewed on an Attorney General’s reference for undue leniency under section 36 of the Criminal Justice Act 1988.

The Court of Appeal may make a confiscation order which the Crown Court had power to make, even though the Crown Court did not first determine the statutory preconditions. The 28-day period runs from the later order refusing confiscation, but cannot be enlarged by reading the statute as referring to a sentence which should have been passed. Procedural postponement requirements are case-management provisions and do not ordinarily remove jurisdiction.

These were Attorney General’s references concerning two unrelated sets of offenders. Smith and Bradley were convicted of conspiracy to defraud. Cunningham, Graver and Flowers were convicted of conspiracy to steal.

In each case, the Crown Court declined to begin confiscation proceedings because it considered that procedural defects deprived it of jurisdiction. The judges correctly followed earlier Court of Appeal authority which was subsequently displaced by later decisions.

The Attorney General contended that the resulting failure to make confiscation orders rendered the sentences unduly lenient under section 36 of the Criminal Justice Act 1988. The central issues were whether a refusal to make an order was itself a sentence capable of reference, whether the references were in time, and whether the Court of Appeal could determine or remit the confiscation issues.

1. The Attorney General was entitled to refer the failures to make confiscation orders. The Court held that the procedural defects did not necessarily deprive the Crown Court of jurisdiction. The contrary approach in Regina v Pisciotto [2002] EWCA 1592 and Regina v Palmer [2002] EWCA Crim 2202 had effectively been overruled by later authority.

2. Section 36 concerns both the sentencing process and the sentence imposed. A confiscation order forms part of a sentence by virtue of section 50(1) of the Criminal Appeal Act 1968. When a judge wrongly declines jurisdiction and makes no confiscation order, that is an order making no order on the Crown’s application. It is therefore a sentence capable of being reviewed as unduly lenient.

3. The words limiting the Court of Appeal to a sentence which the court below had power to pass concern the Crown Court’s available sentencing powers. They do not require the Crown Court first to have made the factual determinations necessary to exercise those powers. The Court of Appeal could therefore deal with the confiscation issue, notwithstanding that factual determinations might be required. It could not enlarge the statutory 28-day period by treating it as running from a sentence which should have been passed.

4. The postponement provisions in section 72A of the Criminal Justice Act 1988 regulate case management. They do not remove jurisdiction. The Crown Court retained a common-law power to adjourn beyond six months, and the circumstances justified an extension in the Cunningham proceedings.

5. Despite the delay, the substantial alleged criminal benefit and the purpose of confiscation justified permitting the references to proceed. The Court directed that the matters proceed to a full hearing, with directions intended to minimise the evidence required.

• Court of Appeal (Criminal Division) Held that the Attorney General could refer the failures to make confiscation orders and that the court had jurisdiction to make appropriate orders.
• Crown Court at Stafford On 19 November 2002, declined jurisdiction to embark on confiscation proceedings against Smith and Bradley because of defective notices.
• Crown Court at Norwich Declined jurisdiction to continue confiscation proceedings against Cunningham, Graver and Flowers because no period had initially been specified for postponement.