Peter Roger Daniels v R

A deprivation order may be made only where the statutory conditions are satisfied, and the court must consider the property’s value and the likely financial and other effects of the order. Proportionality is relevant to the total penalty. The prosecution must provide a sufficient evidential basis, and the court should investigate any genuinely disputed question about the property. Where the order was made with the defence’s agreement and no issue was raised at sentence, later dissatisfaction with an administrative process for recovering lawful material does not ordinarily justify an appeal. A period for an expert to extract lawful material must be sought when sentence is imposed. The Court of Appeal cannot use an appeal against sentence to resolve a separate dispute about property retained outside the order.

The applicant had been convicted and sentenced at Salisbury Crown Court on 7 February 2019 for serious sexual offences involving children and recorded material. The sentencing judge made an order, drawn up on 8 February 2019 under Powers of Criminal Courts (Sentencing) Act 2000, s 143, depriving him of computers, hard drives and cameras which had been seized by the police.

The substantive sentence had previously been considered and altered by the Court of Appeal. This application, made more than three years out of time, concerned only the deprivation order. The parties agreed that seven items remained disputed, including devices containing unlawful material and CDs, DVDs and recorded media. The central issues were whether the order could be challenged because lawful material had not been recovered, whether an expert extraction period should have been provided, and whether some retained items fell outside the order.

1. Applications refused. The application for an extension of time and the application for leave to appeal against sentence were both refused.
2. Section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 permitted an order where property lawfully seized from an offender had been used, or intended to be used, to commit or facilitate an offence, or where the relevant offence involved unlawful possession of the property. The statutory requirements were clearly met for a large number of the seized items. The order did not require an attached list, and no particular item had been challenged before the sentencing judge.
3. The principles in R v Wright-Hadley (Stephen) were satisfied in substance. The prosecution had an evidential basis for the order, the parties had been heard, and there was no suggestion at sentence that proportionality or a formal finding about the property required further investigation. The sentencing judge was not at fault for failing to resolve issues which neither party raised.
4. The applicant had not asked the sentencing judge for a period in which a defence expert could extract lawful material. R v Tan (Desmond) showed that such a pragmatic and proportionate arrangement could be made where it was sought at the relevant time. It did not create an entitlement to extraction after an opposed deprivation order had taken effect. The order in this case deprived the applicant of the devices as property, not merely of unlawful material on them.
5. The police’s subsequent efforts to identify and return lawful material formed an administrative process which was not required by the order or by s 143. Dissatisfaction with that process was not a ground to quash a properly made order. A dispute about whether the police had retained items outside the terms of the order was a separate matter, potentially for the civil courts, and this court had neither the appropriate jurisdiction nor sufficient evidence to determine it.
6. Although CDs, DVDs and recorded media were outside the words “computers, hard drives and cameras”, the prosecution accepted that the order did not cover them. Any issue about returning those items, particularly given the presence of images of victims, was distinct from the proposed sentence appeal. The delay, especially after the deadlock was apparent by June 2021, was also unexplained and unjustified.

• Court of Appeal (Criminal Division): [2024] EWCA Crim 1395. The substantive sentence had previously been considered and altered by the Court of Appeal. The present applications for an extension of time and for leave to appeal against sentence concerning the deprivation order were refused.
• Salisbury Crown Court: On 7 February 2019, HHJ Parkes QC made the deprivation order under s 143 of the Powers of Criminal Courts (Sentencing) Act 2000. It was drawn up on 8 February 2019.
• Winchester Crown Court: In May 2021, the court declined to vary or overturn the order on the basis that it had no jurisdiction to do so.