Revenue & Customs Prosecution Service v Kearney

The Crown Court has no power, outside the 28-day slip rule, to extend the time for payment of a confiscation order made under the pre-Proceeds of Crime Act 2002 regime. The payment period is an integral part of the order, not a merely administrative direction. There is no inherent jurisdiction to vary it, and no such power can be inferred from the later statutory regime. A case concerning delayed calculation of credit for time spent on remand does not permit substantive alteration of a final confiscation order. The proper route for addressing hardship or possible injustice is enforcement proceedings in the Magistrates' Court, including consideration of whether to activate the default sentence.

The Revenue and Customs Prosecution Service appealed by way of case stated from an order of His Honour Judge Duncan at Liverpool Crown Court. The judge had extended by four months the period for payment of a confiscation order made against the defendant under section 71 of the Criminal Justice Act 1988, after the original 12-month period had expired.

The issue was whether the Crown Court had jurisdiction to vary or extend the time for payment outside the 28-day slip rule period. The defendant relied on inherent jurisdiction, the later provisions of the Proceeds of Crime Act 2002, and Gordon [2007] EWCA Crim 165.

1. Appeal allowed. The order extending time for payment was made without jurisdiction and was quashed.
2. Under the pre-Proceeds of Crime Act 2002 regime, the Crown Court had power to allow time for payment when making the confiscation order, under section 75(1) of the Criminal Justice Act 1988 and section 139(1)(a) of the Powers of Criminal Courts (Sentencing) Act 2000. After the 28-day slip rule period, it had no power to vary or extend that period.
3. The time allowed for payment was an integral part of the confiscation order. The administrative form used in the case did not alter that characterisation. There was no express statutory power, inherent jurisdiction, or power inferable from section 11 of the Proceeds of Crime Act 2002. That Act established a different regime and could not supply a power under the earlier legislation.
4. Gordon [2007] EWCA Crim 165 was materially different. It concerned the final implementation of a sentencing decision where the principle of credit for time on remand had already been decided and only an administrative calculation remained. It did not authorise a substantive extension of a final payment period, and instead underlined the limits on post-28-day variation.
5. The appropriate course for a defendant seeking relief was to apply to the Magistrates' Court, which could exercise its enforcement and dispensing powers under sections 76 and 77 of the Magistrates' Courts Act, including deciding whether to activate the default sentence.

• High Court (Administrative Court): allowed the appeal by case stated, quashed the Liverpool Crown Court order, and made no order as to costs.
• Liverpool Crown Court: His Honour Judge Duncan had extended by four months the time to pay a confiscation order after expiry of the original payment period.