Geraghty v R

A financial reporting order is a sentence for the purposes of the Criminal Appeal Act 1968. Where the sentencing judge expressly, or by necessary implication, treats that order and an earlier term of imprisonment as substantially one sentence, an unsuccessful appeal against the order prevents a later appeal against the imprisonment.

Section 10(4)(b) does not require a judge to repeat its precise statutory language. The question is one of substance. An exceptionally late application for permission to appeal also requires compelling justification. Earlier delay increases, rather than removes, the need for expedition.

The applicant pleaded guilty at Liverpool Crown Court to five drug offences, including conspiracy to import approximately two tonnes of cocaine. In October 2011, HHJ Aubrey QC imposed 20 years’ imprisonment. In February 2013, the judge made a confiscation order and a 15-year financial reporting order.

The applicant unsuccessfully challenged the financial reporting order. The Court of Appeal refused renewed permission in [2013] EWCA Crim 2357. Nearly five years after the prison sentence, he sought permission to appeal that sentence out of time. The central questions were whether the earlier appeal barred this further challenge and, if not, whether time should be extended.

1. The application was dismissed. The court had no jurisdiction to entertain a further challenge to the term of imprisonment after the unsuccessful appeal against the financial reporting order.

2. Under sections 9(1) and 50(1) of the Criminal Appeal Act 1968, a financial reporting order is a sentence. The court applied R v Adams [2009] 1 W.L.R. 301 on that point. The general rule, supported by Hughes [2010] 1 Cr App R(S) 25 and Pinfold [1988] 87 Cr App R 15, is that an appellant is ordinarily confined to one appeal against sentence.

3. The judge who made the financial reporting order expressly linked its 15-year duration to the term of imprisonment. He therefore treated the two orders as substantially one sentence within section 10(4)(b). A formal declaration in the statutory words was unnecessary. Odesanyi [2005] EWCA Crim 2260 did not assist: unlike that case, the available transcript established that link. The court also noted that a later order made only after an earlier appeal has concluded may, in an appropriate case, fall outside the ordinary bar.

4. Even if jurisdiction had existed, the court would have refused an extension of time. The delay was extreme, inadequately explained, and aggravated by the applicant’s knowing withdrawal of his timely proposed appeal. The sentence was in any event appropriate for his leading role, the scale of the importation, and his previous drug conviction. There was no objectionable disparity and no basis for alleging a breach of totality.

• Court of Appeal (Criminal Division): Dismissed the application for permission to appeal the 2011 prison sentence in [2016] EWCA Crim 1523.

• Court of Appeal (Criminal Division): Refused renewed permission to appeal the financial reporting order in [2013] EWCA Crim 2357.

• Liverpool Crown Court: HHJ Aubrey QC imposed 20 years’ imprisonment in October 2011, and later made a confiscation order and a 15-year financial reporting order.