Bukhari, R v

The Crown Court’s power under section 155(1) of the Powers of Criminal Courts (Sentencing) Act 2000 ends when the 28-day period expires. Consent, absence of prejudice and a desire to correct an error cannot extend that jurisdiction.

A post-expiry correction is available only in very limited circumstances, such as completing an inchoate order or correcting a purely clerical calculation. Substitution of the statutory confiscation regime is substantive and cannot be made by the Crown Court after the period has expired. On an appeal against sentence, however, the Court of Appeal may use section 11(3) of the Criminal Appeal Act 1968 to quash an unlawful order and substitute the order which the Crown Court had power to make, provided the appellant is not more severely dealt with.

The applicant pleaded guilty at York Crown Court to offences of obtaining property and money transfers by deception. He received concurrent sentences of three years’ imprisonment.

Confiscation proceedings were mistakenly conducted under the Criminal Justice Act 1988, although all the offences were committed after the commencement of the Proceeds of Crime Act 2002. A confiscation order of £83,600 was made. More than 28 days later, the Recorder purported to vary the order by substituting the correct Act.

The applicant appealed, contending that both the original order and the purported variation were unlawful. The central issue was whether the Crown Court retained jurisdiction to make that variation and, if not, what order the Court of Appeal could make.

1. Appeal allowed to the extent stated. The original confiscation order was unlawful because it was made under the wrong statutory regime. The Recorder’s later variation was also unlawful.

2. Section 155(1) of the Powers of Criminal Courts (Sentencing) Act 2000 gave the Crown Court a power to vary or rescind an order only within 28 days. Following Gordon [2007] 2 Cr.App.R(S) 66, the power expired at the end of that period. The appellant’s hypothetical consent and the absence of prejudice could not create jurisdiction.

3. The limited exception illustrated by Saville 70 Cr.App.R 204 did not assist. That case concerned completion of an inchoate order under the correct legislation. Replacing the statute under which a confiscation order was made was neither a futile formality nor a correction of an inchoate order. Norman [2007] 1 Cr.App.R(S) 82 likewise confirmed that, after the 28-day period, correction is not available merely because an error is agreed.

4. The court could nevertheless act under section 11(3) of the Criminal Appeal Act 1968. Following Lazarus [2005] 1 Cr.App.R(S) 98, it quashed the unlawful order and substituted an order for £83,600 under the Proceeds of Crime Act 2002. The statutory procedure and judicial reasoning would substantially have been the same, so the appellant suffered no prejudice and was not more severely dealt with.

5. The sum was to be paid within two months. The two-year default term remained consecutive to the concurrent three-year sentences.

• Crown Court at York: the applicant pleaded guilty on 24 July 2006 and was sentenced on 25 July 2006.
• Crown Court at York: on 3 August 2007, a confiscation order of £83,600 was made under the wrong statutory regime. On 2 May 2008, the Recorder purported to vary it by substituting the Proceeds of Crime Act 2002.
• Court of Appeal (Criminal Division): allowed the appeal to the extent of quashing the unlawful order and substituting an equivalent order under the correct Act.