Kearney, R v

A deprivation order under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 should ordinarily be confined to a simple and uncomplicated case. The sentencing court must consider both the value of the property and the likely financial and other effects on the offender, together with contemplated orders.

Where property is subject to third-party finance, the offender’s interest may be uncertain and impracticable to realise. A deprivation order affects only the offender’s rights and cannot displace the finance company’s rights. Those complications may make the order inappropriate, even where the property was used to commit the offences and deprivation would otherwise be a fitting punishment.

The appellant pleaded guilty to six offences of making off without payment for fuel and two thefts of vehicle registration plates. He used an Audi subject to a hire-purchase agreement to obtain fuel fraudulently and changed its plates to avoid detection.

At Mold Crown Court, the judge imposed a community order, made compensation orders totalling £450, and ordered deprivation of the appellant’s interest in the Audi under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000. The precise finance position and value of the appellant’s interest had not been known to the judge.

On the appeal against the deprivation order, the vehicle had already been sold. The issue was whether the order should stand notwithstanding the finance company’s interest, the uncertainty of the appellant’s equity, and the practical consequences of the statutory scheme.

1. Appeal allowed. The court quashed the deprivation order. It made fresh compensation orders totalling £450 in favour of the complainants, payable within three months.

2. The Audi had been used to commit or facilitate the offences, so the Crown Court had power to make an order under section 143(1) of the Powers of Criminal Courts (Sentencing) Act 2000. The discretion was nevertheless constrained by section 143(5), which required regard to the property’s value and the likely financial and other effects on the appellant.

3. A section 143 order deprives only the offender of his rights in the property. It cannot affect a finance company’s rights. The Audi was legally owned by the hire-purchase company and the appellant was only its bailee. Under section 144, read with the Police (Property) Act 1897, the finance company would have been entitled to recover the vehicle if the police had seized it. The contemplated sale and use of proceeds for compensation would therefore not have occurred.

4. The court applied the guidance in R v Troth (1979) 1 Cr App R(S) 341: deprivation orders should generally be made only in simple, uncomplicated cases. An encumbered interest creates difficulties about value and realisation. Although deprivation would in principle have been a fitting punishment, the finance company’s interest, the uncertain value of the appellant’s interest, and the resulting impracticality meant that the better course was not to make the order.

5. The subsequent sale of the Audi independently frustrated the purpose of the order. It was neither feasible nor lawful for the police to seize and dispose of the vehicle under the statutory scheme.

• Court of Appeal (Criminal Division): Allowed the appeal against the deprivation order, quashed that order, and resentenced by making compensation orders totalling £450.
• Crown Court at Mold: On 2 September 2010, imposed a community order for theft and making off without payment, ordered compensation, and made a deprivation order under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000.