Magro, R v

A five-judge constitution of the Court of Appeal (Criminal Division) cannot disregard a sole earlier decision of that court on a distinct point of law merely because it considers the decision wrong. The limited discretion identified in R v Simpson does not extend to a reserved decision reached after full argument and detailed statutory analysis, particularly where departure would disadvantage a defendant.

The court considered that, on its proper construction, Proceeds of Crime Act 2002 permits a confiscation order alongside an absolute or conditional discharge. That view could not alter the result while R v Clarke remained binding.

Four otherwise unconnected applications for leave to appeal against sentence raised whether the Crown Court could make a confiscation order when imposing an absolute or conditional discharge. The issue arose because R v Clarke [2009] EWCA Crim 1074 had held that it could not.

In Varma’s case, the Crown Court at Isleworth imposed a two-year conditional discharge after convictions for fraudulent evasion of excise duty, then made a confiscation order for the available amount. The Crown argued that Clarke was decided per incuriam and should not be followed. The applicants contended that it was binding.

The central issue was whether this five-judge court could depart from Clarke, and consequently whether Varma’s confiscation order could stand.

1. Varma’s appeal was allowed. Time was extended for him to appeal. The court was bound by R v Clarke [2009] EWCA Crim 1074, which required the conclusion that a confiscation order could not accompany his conditional discharge. The remaining three applications were adjourned.

2. The court nevertheless considered that Clarke was wrong. Under section 6 of the Proceeds of Crime Act 2002, the Crown Court must address confiscation when the statutory conditions are met. Section 13(4) expressly requires the court, save for specified financial orders, to leave confiscation out of account when deciding sentence. An order for discharge is a sentence for that purpose.

3. Accordingly, section 12 of the Powers of Criminal Courts (Sentencing) Act 2000, including section 12(7), did not remove the jurisdiction conferred by the 2002 Act. On that construction, a court may combine a discharge, where punishment is inexpedient, with confiscation to deprive an offender of the recoverable benefit of crime. That conclusion was not operative because of the binding effect of Clarke.

4. R v Simpson [2004] QB 118 permits a five-judge court, in limited circumstances, to decline to treat a previous Criminal Division decision as binding. Those circumstances include conflicting or per incuriam authority and certain procedural or sentencing decisions. They did not include a single, reserved decision on the precise issue after full argument and meticulous analysis. The question whether Clarke was wrong was therefore for the Supreme Court.

5. The court certified a point of law of general public importance and invited the Crown to seek permission to appeal to the Supreme Court. It invited written submissions on the certified question.

• Court of Appeal (Criminal Division): Time was extended and Varma’s appeal against sentence was allowed because the court was bound by R v Clarke [2009] EWCA Crim 1074. The applications of Magro, Brissett and Smith were adjourned pending the prospective Supreme Court proceedings.
• Crown Court at Isleworth: Varma received a two-year conditional discharge and was later made subject to a confiscation order.
• Crown Courts at Bradford, Birmingham and Bristol: Confiscation orders had also been made following orders for discharge in the other three applications.