May & Ors, R. v

An appeal against a confiscation order does not suspend either the order or the period allowed for payment. In the absence of contrary provision, time runs from the making of the order. An unsuccessful appellant cannot obtain an extension merely because the appeal has consumed much of the original period, since steps to realise funds should be taken while the appeal is pending. The court may, however, fix a further period where a reduced order or an expired period would otherwise produce unjustified immediate default. A pending application for leave to appeal against conviction does not itself justify staying enforcement of a confiscation order.

This supplementary judgment determined the provisional time-to-pay issues left open by the Court of Appeal’s written judgment of 28 January 2005. It concerned confiscation orders made by His Honour Judge Samuels QC on 2 August 2002 against May, Stapleton, Bravard and Fowles.

May’s appeal against his confiscation order had been dismissed. The other three appeals had resulted in reductions of the sums payable. The court considered whether the original payment periods ran during the appeals and, if so, whether they should be varied. It also considered May’s application to certify points of law of general public importance and for leave to appeal to the House of Lords.

1. Time to pay. The court held that the periods allowed by the Crown Court had run from the dates on which the confiscation orders were made. The lodging of an appeal did not suspend an order or sentence. The court applied the general principle illustrated by Greater Manchester Probation Committee v Bent [1996] 160 JP Rep 297: a sentence is immediately in force and enforceable unless specific provision provides otherwise.
2. May. May’s appeal had failed and there was no basis to alter his three-year payment period, which expired on 2 August 2005. He could not assume that his appeal would succeed or treat the appeal as a reason to defer preparations for payment. The court also rejected the principle that an unsuccessful appeal should be likely to lengthen the period allowed for payment.
3. The successful appellants. Applying Criminal Appeal Act 1968, section 11(3), the court left Stapleton’s original three-year period unchanged because shortening it would put him immediately in default. It ordered Bravard to pay £626,383 by 28 May 2005 and Fowles to pay £40,000 by 28 April 2005. The stated default terms remained applicable.
4. Stay and certification. Bravard’s intended application for leave to appeal against conviction did not presently justify a stay of the confiscation order; he could seek a stay if leave were granted. The court refused to certify the public-interest-immunity point. It was minded to certify, if reformulated, the question whether property jointly obtained by principals to an acquisitive offence constitutes the benefit of each under section 71(4) and (5) of the Criminal Justice Act 1988. Leave to appeal on that point was deferred pending the certification decision.

• Court of Appeal (Criminal Division): In this supplementary judgment, [2005] EWCA Crim 367, the court fixed or maintained the periods for payment following its written judgment of 28 January 2005.
• Crown Court: His Honour Judge Samuels QC made confiscation orders on 2 August 2002. The orders were maintained as to May and reduced on appeal for Stapleton, Bravard and Fowles.