Paivarinta-Taylor, R v

A breach of the statutory sequence requiring confiscation to precede a fine does not automatically invalidate either the fine or a later confiscation order. The court must construe the procedural provision purposively and decide whether Parliament intended total invalidity. A technical breach which causes no prejudice will ordinarily leave both orders effective.

Section 72A(9) of the Criminal Justice Act 1988 preserves the primacy of confiscation. It does not prevent the court from completing confiscation proceedings after an earlier fine merely because the sequence was wrong.

The appellant was convicted at Canterbury Crown Court of obtaining property by deception arising from a joint fraudulent right-to-buy application. The sentencing judge imposed a fine of £1,000 and, on a later date, made a confiscation order for £35,635.

She appealed against the confiscation order. The original grounds concerning her realisable assets were abandoned. The appeal concerned whether imposing the fine before the confiscation order breached section 72A(9) of the Criminal Justice Act 1988 and, if so, invalidated the fine, rendered the court functus officio, or invalidated the later confiscation order.

1. Appeal dismissed. The judge breached section 72A(9) of the Criminal Justice Act 1988 by imposing a fine during the postponement period before making the confiscation order. That also meant that he could not comply with section 72(5) when fixing the fine.

2. The purpose of the statutory sequence is to make confiscation primary. A confiscation order must ordinarily be made before a fine or other prohibited financial order so that the sentencing court can take the confiscation order into account. The relevant question after breach is, however, whether Parliament intended total invalidity.

3. Applying the binding purposive approach in R v Soneji & Bullen [2006] 1 Cr. App. R. (S) 79, Parliament did not intend that a prematurely imposed fine should be invalid, that the court should be unable to continue with confiscation proceedings, or that the resulting confiscation order should be invalid. The earlier approach treating such procedural errors as automatically fatal was inconsistent with that authority.

4. The appellant suffered no prejudice. Her fine was £1,000, while her realisable assets exceeded £216,000 and remained above £180,000 after the confiscation order. The incorrect sequence therefore did not affect the confiscation order or create injustice in the fixing of the fine.

5. Sekhon & others [2003] Cr. App. R. 34, Ruddick [2003] EWCA Crim 1061, and Simpson [2004] 1 Cr. App. R. (S) 24 should continue to be followed insofar as they supplement the principles in R v Soneji & Bullen. Threapleton, Jones, Ghebremariam, and Khan & others should be disregarded when considering the consequences of comparable procedural breaches.

6. Obiter, had the fine been invalid, the court would have considered exercising its power under section 11(3) of the Criminal Appeal Act 1968 to impose a fine in the proper sequence. Counsel on both sides should draw section 72A(9) to the sentencing court’s attention.

• Court of Appeal (Criminal Division) Dismissed the appeal against the confiscation order: [2010] EWCA Crim 28.
• Crown Court at Canterbury Convicted the appellant of obtaining property by deception, imposed a £1,000 fine, and later made a confiscation order of £35,635.