May & Ors, R. v

When we handed down judgment in writing in these appeals on 28 January 2005, we indicated that we would be prepared to receive submissions in writing as to the period each of those appealing against a confiscation order should have to pay the amount due before being in default. To that extent the periods of time referred to in paragraphs 109 to 111 of that judgment were to be regarded as provisional.

To summarise the result of the appeals against confiscation orders, the appeal by May was dismissed. The appeal by Stapleton was allowed to the extent that the amount of the confiscation order was reduced to £1,615,789. In Bravard’s case, the amount of the order was reduced to £626,383 and in Fowles’ case the amount was reduced to £40,000.

The confiscation orders made by His Honour Judge Samuels, Q.C., on 2 August 2002 were as follows: May £3,264,277, to be paid within 3 years; Stapleton £2,365,789, to be paid within 3 years; Bravard £1,386,383 to be paid within 2 years; and Fowles £66,000 to be paid within eighteen months. In each case there was of course a default term of imprisonment specified.

The court has received written representations from counsel on behalf of all four appellants and from counsel for the Crown. On behalf of May it is submitted that the period of time allowed for payment of a confiscation order runs from the date of dismissal of any appeal and of the expiry of time allowed to seek leave to appeal further, if appropriate. The additional point is then made, that if the Court of Appeal reduces the period of time allowed to a defendant to pay a confiscation order, such a variation would amount to a more severe penalty than that imposed by the Crown Court. This further point would, on the face of it, seem to have little bearing on May’s own position, since his appeal against his confiscation order was dismissed, but it could be relevant in the case of the other appellants subject to confiscation orders.

No authority has been cited for the proposition that the time to pay a confiscation order runs from the date of the determination of an appeal against it, and in our judgment the proposition is unsound in law. In principle the fact that an appeal is pending does not operate so as to suspend the operation of any sentence or order. That is why a defendant sentenced to imprisonment has to seek bail if he wishes to be released from custody while an appeal is pending and why a disqualified driver has to seek an order suspending the disqualification if he wishes to drive in the period before his appeal is determined. The clearest demonstration of this principle is to be found in the Divisional Court decision of Greater Manchester Probation Committee v. Bent [1996] 160 JP Rep 297. There it was held that, when a community service order was made, it was in force immediately and, despite the lodging of an appeal against it, a failure to attend under the order would amount to a breach unless there was a reasonable excuse. Saville LJ said at page 301 D:

“The general principle is that once a sentence of any kind has been passed, then it is in force and enforceable in the absence of specific provisions to the contrary. Of course, as a matter of practice, in the case of fines, it may well be that the fine is not in fact enforced, but that is for practical reasons and not as a result of any principle of law.”

With that and with section 11(3) of the Criminal Appeal Act 1968 in mind, we turn to the submissions on the merits of the period of time in which payment is to be made. In the case of May it is contended that it would be unnecessarily harsh to allow the three years for payment to stand as originally ordered, because the time which has passed in disposing of the appeal has consumed most of the time originally allowed for the raising of the substantial sum involved. That time will, as things stand, expire on 2 August 2005, approximately six months from the date of the judgment of this court. It is submitted that the order should be varied so as to allow a period of twelve months from the date on which no further appeal is possible.

We do not find this argument persuasive. There is no reason why steps preparatory to the raising of the money specified in the confiscation order should not have been taken while May’s appeal was pending. The appellant was not entitled to assume that his appeal would be successful and, as indicated above, as a matter of law time was running during that period. Moreover, it would be wrong as a matter of principle for appellants to be encouraged to believe that the bringing of an appeal would be likely to lengthen the time given for payment, even if the appeal was unsuccessful. We see no reason to interfere with the terms of the order made below.

The appeal by Stapleton was successful in achieving a reduction in the sum payable under the confiscation order from over £2.3 million to just over £1.6 million. On his behalf it is submitted that there should be no variation in the three years allowed for payment, a period which will expire on 2 August 2005. We were originally minded to reduce that period to two years to reflect the reduction in the amount payable. However, to do so would put this applicant immediately in default, which could not be justified. The prosecution has indicated that it would regard a period of about six months from the date of the appeal judgment on 28 January 2005 as being appropriate to enable the sum due to be paid. In broad terms we agree. This result can most conveniently be achieved by leaving the three year period expiring on 2 August 2005 to remain unchanged, and we shall so order.

Bravard is, we understand, seeking leave to appeal out of time against his conviction. On this basis it is argued on his behalf that there should be an order that the confiscation order in his case should not be enforced until his application and any consequent appeal against conviction has been finally disposed of. This court sees no need for such an order as things stand. If leave to appeal against conviction is granted, an application for a stay of execution of the confiscation order can be made at that stage. As for the appropriate period of time for repayment, the period of two years allowed by the court below has now expired. It seems to this court that some further period of time is still likely to be required from the date of the appeal judgment to arrange for payment of the sum due, even though the figure has been reduced to under half of that originally specified in the order. Taking all the circumstances into account, we order that the sum of £626,383 be paid within four months of 28 January 2005.

Finally, we turn to the case of Fowles, whose liability under the confiscation order has been reduced from £66,000to £40,000. The eighteen months he was allowed to pay by the court below has expired. No new arguments are advanced on his behalf, beyond those already dealt with in this judgment. As with Bravard, it seems to this court that Fowles should be allowed a further period of time to make arrangements for payment, although given the amount involved the period of time should not be lengthy. We order that the £40,000 be paid within three months of 28January 2005.

The terms of imprisonment applicable in default of payment shall be those set out in paragraphs 109 to 111 of the judgment of 28 January 2005. In the case of May, the term of six years imprisonment in default imposed by the court below remains unaffected. For the convenience of all parties we summarise the position resulting from our decision on the confiscation orders:

An application has been made to the court in writing on behalf of the appellant May to certify a point of law of general public importance and to grant leave to appeal to the House of Lords. Two matters are raised in the application dated 31 January 2005, the first concerning material covered by public interest immunity and the second concerning the meaning of “benefit” under the Criminal Justice Act 1988.

In the case of the first matter raised, the court refuses to certify. In the case of the second matter, the court is minded to certify if the terms of the application were to be amended to the following:

“where property is obtained jointly by persons participating as principals in an acquisitive offence, is the benefit of each for the purposes of section 71(4) and 71(5) of the Criminal Justice Act 1988 the value of the property so obtained?”

The application for leave to appeal in respect of the second matter will be dealt with when the court finally decides whether or not to certify such a point of law of general public importance.