Escobar v Director of Public Prosecutions

When a confiscation order is reduced under section 83 of the Criminal Justice Act 1988, the Crown Court may also fix or extend the time for payment. Section 75(1), read with the provisions governing fines, applies to an order made under section 83 as well as to the original confiscation order. The statutory language should be read according to the practical effect of the substituted order. That construction is reinforced where the alternative would require interest to run from an earlier payment date despite assets being acquired or becoming realisable only later. Confiscation legislation may be stringent, but a draconian construction is not required where a less severe construction gives effect to the legislative purpose.

The appellant had originally been made subject to a confiscation order under Part VI of the Criminal Justice Act 1988. After the High Court issued a certificate of inadequacy under section 83, the Crown Court reduced the amount recoverable and allowed further time for payment.

On a subsequent application, the Crown Court held that it lacked jurisdiction to fix a payment date when varying the confiscation order. It therefore removed the new payment date and treated the original date as continuing. The appellant appealed by way of case stated. The central question was whether section 75(1), through the statutory provisions governing fines, conferred power to fix time for payment on an order made under section 83.

1. Appeal allowed. The April 2007 Order was quashed, leaving the March 2007 Order in force.
2. Section 75(1) of the Criminal Justice Act 1988 applies to an order under section 83. The expression requiring the Crown Court to order payment concerns the practical effect of the order. A substituted lesser amount under section 83(4)(a) remains an amount which the defendant is ordered to pay.
3. This construction is supported by reading section 75 as a whole. Sections 75(2) and 75(3) use identical or nearly identical language and would produce an absurd result if orders under section 83 were excluded.
4. The express reference in section 83(4)(b) to substitution of a shorter default term does not exclude a power to fix time for payment. It may require the new term to be shorter than the original, and may also emphasise that the duty to impose a default term remains relevant.
5. The construction is also supported by the potential injustice under the alternative interpretation. Section 83 requires realisable assets to be assessed at the date of variation. Some assets may have been acquired after the original order or could not reasonably have been realised earlier. It would be unjust if interest necessarily ran from the original payment date without judicial discretion.
6. Revenue and Customs Prosecution Office v Kearney [2007] EWHC 640 (Admin) concerned a different issue: an asserted free-standing power to extend time after expiry of the original payment period. It did not prevent a statutory power arising under section 75(1) when an order is made under section 83.
7. The court declined to determine the construction of sections 74B and 74C of the 1988 Act or analogous provisions in the Drug Trafficking Act 1994, leaving them for cases where they arise on the facts.

• High Court (Administrative Court): Appeal by way of case stated allowed. The Crown Court’s April 2007 Order was quashed and the March 2007 Order remained in force.
• Crown Court at Southwark: The court first reduced the confiscation order under section 83, then held that it lacked power to fix a new payment date and restored the original date.