LORD LLOYD-JONES:
1.
On 17 October 2014 the respondent, Mr Ian Darroch, was convicted
following a trial in the Court of General Gaol Delivery (HH Deemster Birkett QC
and a jury) of 13 counts of theft, false accounting, forgery and conspiracy to
pervert the course of justice. He was sentenced on 26 November 2014 to a total term
of nine years’ custody. At the sentencing hearing counsel for the prosecution,
Mr Mark Benson, stated that the prosecution did not intend to seek an order for
costs against the respondent. By letter dated 17 December 2014 Mr Benson
informed the court and the respondent that it did intend to make an application
for costs. On 26 June 2015, following a confiscation hearing, a confiscation
order was made. On 14 October 2015 Deemster Birkett ordered the respondent to
pay prosecution costs in the sum of £175,000. On appeal, the High Court of
Justice of the Isle of Man, Staff of Government Division (“Appeal Division”)
(HHJA Tattersall QC, HH Deemster Doyle) quashed the costs order. The Attorney
General for the Isle of Man (“the appellant”) now appeals to the Judicial
Committee of the Privy Council by leave of the Board. The issue is whether, in
the particular circumstances, the prosecution’s statement that it would not
seek an order for costs precluded it from making a subsequent application for
costs.
2.
The transcript of the hearing of 26 November 2014, at which the
respondent was unrepresented, includes the following exchange between Mr Benson
and Deemster Birkett immediately following the sentencing of the respondent and
two co-defendants. At this point the respondent had already been sentenced and
taken down to the cells.
“Deemster Birkett: Are there any
other Orders that the prosecution seek?
Mr Benson: No. Matters like the
disqualification of someone as a director have to be dealt with here by way of
separate proceedings. They can’t be dealt with at this hearing.
Deemster Birkett: That is what I
understood to be the position. In the circumstances there will be no other
Orders in relation to costs or anything of that kind.
Mr Benson: No.
Deemster Birkett: Are there any
other matters that you ask me to deal with?
Mr Benson: No. Your Honour has
already dealt with setting down a timetable as far as the confiscation matters
are concerned.”
3.
At a hearing on 12 October 2015 Deemster Birkett was asked to make an
order for costs pursuant to section 48 of the Criminal Jurisdiction Act 1993.
In his ruling, delivered on 14 October 2015, he referred to the exchange on 26
November 2014. He stated that at the conclusion of the hearing on 26 November
2014 he had asked Mr Benson if he was being asked to consider any other order
“in relation to costs or anything of that kind” and Mr Benson had replied “No”.
The prosecution had subsequently reconsidered that response and by letter of 17
December 2014 had invited the court to act under the slip rule, section 56 of
the Criminal Jurisdiction Act 1993, and to “vary or rescind the sentence or
order”. Deemster Birkett considered that it appeared from the transcript and
the formal court order that no order as to costs had been made. No application
had been made, no determination sought, nor adjudication delivered. In those
circumstances the slip rule under section 56 did not apply. Deemster Birkett
considered that there was no reason in law why the prosecution was precluded
from seeking an order for costs. He awarded costs against the respondent in the
sum of £175,000.
4.
The respondent appealed to the Appeal Division which in its decision of
23 September 2016 allowed the appeal. (The appeal decision is reported as R
v Darroch (No 1) 2016 MLR 439.) The Appeal Division concluded that the
prosecution’s deliberate decision not to apply for costs at the sentencing
hearing on 26 November 2014 prevented it from making a subsequent application for
costs. However, the legal basis of this conclusion is not clear from the
judgment. It referred generally to the importance of finality in criminal and
civil proceedings. It considered that in this case no order for costs had been
made. Furthermore, Mr Benson had stated that there would be no application for
costs. That position could not be rectified under section 56 which was limited
to varying or rescinding sentences or orders and here no order had been made in
respect of costs. The Appeal Division then went on to say that, in any event,
the prosecution should not be permitted to rely on section 56 in the particular
circumstances of this case. The Appeal Division accepted that no application
for prosecution costs could have been determined until after the confiscation
hearing, but in its view that ignored the fact that there was no application.
It then stated that the fact that the court order did not record any
determination that there was to be no order as to costs was not decisive as,
had defence counsel suggested at any time prior to 17 December 2014 that the
order should be amended to include such a provision, the court could only
assume that such an amendment would have been consented to by the prosecution
and made by Deemster Birkett. It added:
“If there is a lesson to be learnt
from the matters set out above it is that when a prosecution (or defence)
advocate informs the court that no application for an adverse costs order is to
be made, such should be recorded in the court’s order.” (para 51)
Statutory framework
5.
Section 48 of the Criminal Jurisdiction Act 1993 (“the 1993 Act”)
provides in relevant part:
“48. Award of costs against
prosecution or defence
(1) The court before which
a person is convicted on information may, if it thinks fit, order the offender
to pay the whole or any part of the costs incurred in or in relation to the
prosecution and conviction, including any inquiry under section 5 of the 1989
Act, as taxed. …”
Section 56 of the 1993 Act provides in relevant part:
“56. Power to re-open case
to rectify mistake
The court or the Appeal Division
may, within 28 days beginning with the day on which a sentence or other order
made by it when dealing with an offender was made, vary or rescind the sentence
or order. …”
6.
Section 1 of the Criminal Justice Act 1990 (“the 1990 Act”) confers the
power to make a confiscation order. Sections 2 and 2A of the 1990 Act provide
in relevant part:
“2. Making of a
confiscation order
(1) A court shall not make
a confiscation order unless the prosecutor has given written notice to the
court to the effect that it appears to him that it would be appropriate for the
court to determine whether it ought to make a confiscation order.
(2) If the prosecutor gives
the court such a notice, the court shall determine whether it ought to make a
confiscation order.
(3) When considering
whether to make a confiscation order the court may take into account any
information that has been placed before it showing that a victim of an offence
to which the proceedings relate has instituted, or intends to institute, civil
proceedings against the defendant in respect of loss, injury or damage
sustained in connection with the offence.
(4) If the court determines
that it ought to make such an order, the court shall, before sentencing or
otherwise dealing with the offender in respect of the offence or, as the case
may be, any of the offences concerned, determine the amount to be recovered in
his case by virtue of this section and make a confiscation order for that
amount specifying the offence or offences.
(5) Where a court makes a
confiscation order against a defendant in any proceedings, it shall be its
duty, in respect of any offence of which he is convicted in those proceedings,
to take account of the order before -
(a) imposing a fine on him;
(b) making any order
involving any payment by him, other than an order under Schedule 6 to the
Criminal Law Act 1981 (compensation orders); or
(c) making any order under
-
(i) section 27 of the
Misuse of Drugs Act 1976 (forfeiture orders); or
(ii) section 16 of the
Criminal Law Act 1981 (deprivation orders);
but subject to that shall leave
the order out of account in determining the appropriate sentence or other
manner of dealing with him.
…
2A. Postponed
determinations
(1) Where a court is acting
under section 1 but considers that it requires further information before -
(a) determining whether the
defendant has benefitted from any offence;
(b) …
(c) determining the amount
to be recovered in his case under section 2,
it may, for the purpose of enabling
that information to be obtained, postpone making that determination for such
period as it may specify.
(2) More than one
postponement may be made under subsection (1) in relation to the same case.
(3) Unless it is satisfied
that there are exceptional circumstances, the court shall not specify a period
under subsection (1) which -
(a) by itself; or
(b) where there have been
one or more previous postponements under subsection (1) or (4), when taken
together with the earlier specified period or periods,
exceeds six months beginning with
the date of conviction.
…
(7) Where the court
exercises its power under subsection (1) or (4), it may nevertheless proceed to
sentence, or otherwise deal with, the defendant in respect of the offence or
any of the offences concerned.
(8) Where the court has so
proceeded, section 2 shall have effect as if -
(a) in subsection (4), the
words from ‘before sentencing’ to ‘offences concerned’ were omitted; and
(b) in subsection (5),
after ‘determining’ there were inserted ‘in relation to any offence in respect
of which he has not been sentenced or otherwise dealt with’.
(9) In sentencing, or
otherwise dealing with, the defendant in respect of the offence, or any of the
offences, concerned at any time during the specified period, the court shall
not -
(a) impose any fine on him;
or
(b) make any such order as
is mentioned in section 2(5)(b) or (c).
(10) Where the court has
sentenced the defendant under subsection (7) during the specified period it
may, after the end of that period, vary the sentence by imposing a fine or
making any such order as is mentioned in section 2(5)(b) or (c) so long as it
does so within a period corresponding to that allowed by section 56 of the
Criminal Jurisdiction Act 1993 (variation of sentence) but beginning with the
end of the specified period. …”
Was there an order?
7.
The first question for consideration is whether an order was made on 26
November 2014 that there should be no order as to the prosecution’s costs. On
that occasion Deemster Birkett had set a timetable for the confiscation
proceedings and adjourned the confiscation hearing pursuant to section 2A of
the 1990 Act before proceeding to sentence. In those circumstances the combined
effect of section 2A(9)(b) and section 2(5)(b) prohibited the making of an
order for costs against the respondent until after the conclusion of the
confiscation hearing. An order for costs would have been an “order involving
any payment by him” within section 2(5)(b). Moreover, at 26 November 2014 the
court would not have had sufficient knowledge of the respondent’s financial
circumstances to enable it to make a costs order.
8.
In R v Constantine [2011] 1 WLR 1086 the Criminal Division of the
Court of Appeal of England and Wales (Aikens LJ, Openshaw J, Judge Jacobs) held
(at paras 19-21, 30) that under the similar but not identical provisions in
sections 13(2) and 13(3)(a) of the Proceeds of Crime Act 2002 and in
corresponding circumstances, there would be no power to make, expressly or
impliedly, an order that there should be no order for costs against a
defendant. It noted that under those provisions the court must take account of
a confiscation order before making an order “involving payment by the
defendant”.
“That wording must embrace both an
order that the defendant pay costs and one that he pay nothing. Either way the
order ‘involves’ payment by the defendant in the sense that it affects or concerns
payment. This means that the court must take account of a confiscation order
before making an order ‘involving payment by the defendant’ of costs relating
to all of the proceedings that have gone on so far.” (para 19)
It should be noted that, just as in section 13(2) and
(3), section 2(5) of the 1990 Act, with which we are concerned, states that it
is the duty of the court, in respect of any offence of which a defendant is
convicted in those proceedings, to take account of the confiscation order before
making “any order involving any payment by him”. The policy underlying these
provisions is that the confiscation order should be given priority in this
regard and then taken into account when other financial orders, the
consideration of which has been postponed, are considered. That policy and the
effective exercise of the court’s powers to award costs could be undermined if
the court were able to decide prior to the conclusion of confiscation
proceedings that there should be no order as to costs. For these reasons, the
Board considers that Deemster Birkett had no power on 26 November 2014 to make
an order that there should be no order as to costs. Therefore, and contrary to
the view expressed by the Appeal Division, it is not the case that the position
of the prosecution might have been reflected in an order had anyone proposed
that prior to 17 December 2014.
9.
Furthermore, the Board has come to the clear view that there was no
purported order to that effect. First, this is not reflected in the formal order
of the court. Secondly, while Mr Benson made clear that the prosecution would
not seek an order as to costs, he said nothing to indicate that that should be
reflected in an order. Thirdly, it is clear from the observations of Deemster
Birkett on 14 October 2015 that he did not consider that he had made such an
order. On the contrary, these observations make clear that the following words
in the transcript “[i]n the circumstances there will be no other Orders in
relation to costs …” were a question and not a pronouncement. The Board
therefore agrees with Deemster Birkett and the Appeal Division that there was
no order that there should be no order as to the prosecution’s costs.
10.
The following consequences follow from this. First, the trial court was
not functus officio so far as the making of a costs order was concerned.
However, it could make such an order, if at all, only after the completion of
the confiscation hearing. Secondly, section 56 of the 1993 Act could have no
application as there was no order to vary or rescind. Thirdly, the prosecution
application made by letter dated 17 December 2014 was made on an unsustainable
basis.
11.
It is not necessary, therefore, to consider three further matters which
might otherwise arise. The first is whether, had there been such an order as to
costs, section 56 could have been prayed in aid in these circumstances where
the purpose would not have been the rectification of a mistake but to permit
the prosecution to resile from a deliberate decision not to seek an order for
costs. In the same way, it is not necessary to consider, secondly, compliance
with the time limit set by section 56 in this context or, thirdly, the effect,
if any, of the irregularity that on 26 November 2014 the matter of costs was
discussed in court in the absence of the respondent.
12.
Accordingly, the Board considers that there was no order of the court
which prevented the prosecution from applying for its costs.
Abuse of process
13.
It seems to the Board that the real force of the respondent’s complaint
is that the prosecution, having taken a deliberate decision not to seek an
order for costs and having announced that decision in court, later sought to go
back on that and to seek an order for costs in a very substantial sum. On
behalf of the respondent it is said that it would be unfair to permit the
appellant to go back on his original stance. It is therefore appropriate to
consider whether this constitutes an abuse of process.
14.
Courts have a duty to secure fair treatment for all those who come
before them and to uphold fundamental notions of justice and propriety in their
proceedings. There was undoubtedly in the present case a clear and unequivocal
statement by Mr Benson on behalf of the prosecution that it would not seek an
order for costs. A difficulty with the respondent’s case in this regard,
however, is that, because he was not present in court when the question of
costs was raised and was not legally represented on that occasion, neither he
nor his legal representative was aware of the statement by the prosecution.
Accordingly, there can be no question of his having relied on it or having
changed his position as a result.
15.
Furthermore, even when the respondent and his legal advisers were
informed, by the letter of 17 December 2014, that the prosecution wished to
obtain an order for its costs, they were not made aware of precisely what had
been said on the subject in court on 26 November 2014. The letter of 17
December 2014 stated:
“At the hearing on 26 November
2014, when asked by the Deemster if there would be any other orders in relation
to costs or anything of that kind, the Prosecution did not invite the court to
make any order as to Costs in respect of any of the defendants.
On reflection, the Prosecution now
indicate that they wish to apply for the offenders to pay the whole or any part
of the costs incurred in or in relation to the prosecution and conviction.”
This account of what occurred at the hearing on 26
November is inaccurate. It is not correct that the prosecution merely did not
invite the court to make an order as to costs; it indicated that it would not
make an application for costs. As a result, on receipt of the letter of 17
December 2014, the respondent and his legal adviser were unaware of the true
nature of the original statement because it had been misrepresented. There can,
in these circumstances, have been no change of position by the respondent in
reliance on the statement made to the court.
16.
It is, no doubt, for this reason that Mr Bennathan QC on behalf of the
respondent seeks to found this part of his case on unfairness resulting from a
failure of the prosecution to act efficiently and timeously. He submits that
there is a public interest that statements made by the prosecution in open
court should be binding. He also submits that the Appeal Division is better
placed than the Board to appreciate the significance of prosecutorial
inefficiency and errors in the Isle of Man legal system and what outcome of the
appeal would be most likely to ensure the smooth running of courts there in future.
17.
The Board accepts that the Appeal Division was well placed to assess the
impact of the prosecution’s conduct on the legal system in the Isle of Man. In
the Board’s view, however, abuse of process is not made out here. It should
first be stated that this unhappy episode does not reveal any lack of
timeousness on the part of the prosecution. As previously stated, the effect of
sections 2A(9)(b) and section 2(5)(b) of the 1990 Act is that costs should have
been addressed after the confiscation hearing. Moreover, secondly, while the
attempt by the prosecution to change its position is unattractive, it has to be
assessed in the particular factual circumstances of this case. It has to be
balanced against the total absence of any detrimental reliance on the part of
the respondent. It is also necessary to take account of what the Appeal
Division described as the respondent’s “deeply unattractive” case. In this
regard the Appeal Division noted (at para 39) that, as it transpired, the
respondent “could well afford to pay some or all of the costs incurred by the
prosecution in securing his conviction”. Moreover, there are alternative and
less drastic methods of dealing with inefficiency on the part of the
prosecution. Having regard to all the circumstances, the Board considers that
this case falls short of the high threshold required to establish an abuse of
process.
Section 2A(10) of the
1990 Act
18.
In their written case on behalf of the respondent, Mr Bennathan and Mr
Paul Rodgers, neither of whom appeared below, took a new point. They submit
that the costs order made on 14 October 2015 was unlawful because it was made
after the expiry of the time limit for making such an order. As this is a
purely legal point and as Mr John McGuinness QC, counsel for the appellant, who
also did not appear below, made no objection, the Board will address the
matter.
19.
Under the 1990 Act, where a court is considering making a confiscation
order but considers that it requires further information it may, for the
purpose of obtaining that information, postpone making a determination of
benefit and the amount to be recovered for such period as it may specify
(section 2A(1)). Where the court exercises this power, it may nevertheless
proceed to sentence (section 2A(7)). Where the court has sentenced the
defendant under section 2A(7) during the specified period it may, after the end
of that period, vary the sentence by imposing, inter alia, an order
involving a payment by him, so long as it does so within a period corresponding
to that allowed by section 56 of the 1993 Act (variation of sentence) but
beginning with the end of the specified period (section 2A(10), section
2(5)(b)). The period allowed by section 56 of the 1993 Act is 28 days.
20.
The respondent was convicted on 17 October 2014. On 26 November 2014 the
confiscation proceedings were adjourned and the respondent was sentenced. On 17
December 2014 the appellant gave notice to the court and the respondent of its
intention to apply for costs. On 19 December 2014 Deemster Birkett ordered that
any application for costs be adjourned for hearing on 6 May 2015, the initial
date set for the confiscation hearing. On 3 March 2015, on the appellant’s
application, the confiscation hearing was adjourned to a date to be fixed. On
20 April 2015 the appellant applied for an extension of the confiscation
enquiry on the ground of exceptional circumstances under section 2A(3). In
correspondence, hearings were arranged for 22 to 26 June 2015. On 26 June 2015
Deemster Birkett made a confiscation order. He certified that the respondent
had benefited from criminal conduct in the sum of £1,003,122.99 and that his
realisable assets were £2,502,715.00. He made a confiscation order in the sum
of £1,003,122.99 to be paid within six months with a term of ten years’
custody, consecutive to the term imposed on 26 November 2014, in default. On 26
June 2015 the prosecution’s application for costs was adjourned to be dealt
with administratively unless any party took the view that a hearing should take
place. Directions were given for particulars of the costs sought to be lodged.
On 13 July 2015 the appellant made his application for costs and it was
adjourned to 12 to 14 October 2015. At a hearing on 12 October 2015,
prosecuting counsel incorrectly informed Deemster Birkett that there were no
statutory time limits in relation to the application for costs. On 14 October
2015, Deemster Birkett made an order that the respondent pay a contribution to
the prosecution’s costs in the sum of £175,000.00.
21.
The respondent now submits that the specified period expired on 26 June
2015, when the confiscation order was made, and that, although the application
for costs was made on 13 July 2015, the costs order of 14 October 2015 was made
more than 28 days after 26 June 2015. Accordingly, he submits, there was no
jurisdiction to make the costs order.
22.
In R v Menocal [1980] AC 598, the House of Lords considered the
effect of section 11(2) of the Courts Act 1971 (“the 1971 Act”) which provided
that a sentence imposed or other order made by the Crown Court might be varied
or rescinded within 28 days. The appellant had pleaded guilty to an offence of
being knowingly concerned in the fraudulent evasion of the prohibition on the
importation of a controlled drug and had been sentenced to a term of imprisonment.
More than three months after sentence the Crown Court made an order forfeiting
the money found in her possession on her arrest. The House of Lords held that,
by virtue of the definition of “sentence” in section 57 of the 1971 Act, the
word “sentence” in section 11(2) included a forfeiture order. Section 11(2)
laid down very clearly that any sentence or other order may be varied or
rescinded within 28 days beginning with the day on which the sentence or other
order was made, but there was no such power in the Crown Court after the expiry
of that period. Lord Salmon considered (at pp 604E-H, 605H) that section 11(2)
was clearly intended to put a judge sitting in the newly created Crown Court in
the same position as a judge of assize. A judge of assize had the power to
alter any sentence passed before the end of the assize but, once he had signed
the criminal calendar setting out all the sentences passed during the assize,
that power ceased.
“There is however no power in the
Crown Court to vary or rescind a sentence or any other order after the expiry
of that period [28 days] … The learned judge had 28 days to vary the sentence
he had passed by adding to it a monetary penalty, namely the forfeiture … of
upwards of £4,000. Had he done so within the statutory time limit, the
forfeiture could not have been questioned. As it is, in my opinion, it cannot
be defended.” (p 607F-H)
He added (at p 607H-608A) that the principle that a
sentence cannot be varied by the judge who imposed it, by adding a forfeiture
order after the statutory time limit of 28 days has lapsed, is of very great
importance, and of far greater importance than any undeserved benefit which
might be left in the hands of the appellant.
23.
Similarly, Lord Edmund-Davies considered (at p 613A-B) that the sole
power of a Crown Court judge to alter his sentence was that conferred by
section 11(2). Once again, the conclusion was expressed in categoric terms:
“[T]he action of the trial judge
in this case would, as I think, have been entirely proper had it been done
timeously. But it was not, and he was therefore without jurisdiction to make
the forfeiture order when he purported to make it.” (p 613A)
As a result, there had been no power in the Crown Court
to make a forfeiture order.
24.
This strict approach should be contrasted with that of the House of
Lords in R v Soneji [2006] 1 AC 340 which concerned the statutory
timetable for confiscation proceedings under section 72A of the Criminal
Justice Act 1988, as amended, subsections 72A(1) to (7) of which were materially
identical to subsections 2A(1) to (7) of the 1990 Act in the Isle of Man. The
defendants, who had pleaded guilty to conspiracy to convert property and to
remove it from the jurisdiction knowing or suspecting that it represented the
proceeds of criminal conduct, appealed against confiscation orders on the
ground that the judge, in extending time beyond six months from the date of
conviction had failed to consider whether exceptional circumstances existed to
justify the further extension. They maintained that, accordingly, he lacked
jurisdiction to make the orders. The House of Lords, upholding the forfeiture
orders, considered that the correct approach was to concentrate on the
consequences of non-compliance and to ask whether Parliament could be taken to
have intended total invalidity (per Lord Steyn at para 23, per Lord Rodger of
Earlsferry at para 40, per Lord Cullen of Whitekirk at para 52, per Lord
Carswell at para 62, per Lord Brown of Eaton-under-Heywood at para 78). The
House considered that section 71 of the 1988 Act as amended imposed a duty on
the court to consider confiscation proceedings and made provision for the
sequence of events in order to make the sentencing process rather than the
confiscation procedure as effective as possible. The judge’s failure to adhere
to the requirements of section 72A(3) had caused no prejudice to the defendants
in respect of their sentences. Any prejudice to the defendants resulting from
delay was not significant and decisively outweighed by the countervailing
public interest in not allowing convicted offenders to escape confiscation for
what were no more than bona fide errors in the judicial process.
25.
In the present case the appellant relies heavily on R v Constantine,
which concerned confiscation proceedings to which sections 13 to 15 of the
Proceeds of Crime Act 2002 (“the 2002 Act”) applied. Section 15(4) provided:
“(4) But the court may proceed
under subsection (3) only within the period of 28 days which starts with the
last day of the postponement period.”
The defendant pleaded guilty before magistrates to
offences of applying a false trade description to goods and was committed to
the Crown Court for sentence. At a hearing in March 2009 the judge sentenced
him to concurrent terms of imprisonment and postponed the confiscation
proceedings. No mention was made of the costs of the prosecution at that
hearing. On 10 December 2009 the judge made a confiscation order and adjourned
the Crown’s application for costs of both the substantive proceedings and the
confiscation proceedings. On 4 February 2010 the judge made an order for costs.
The defendant appealed against the order that he pay the costs of the
substantive proceedings on the ground that the judge had no power to adjourn
that costs issue beyond a period of 28 days beginning on the date of the
confiscation order (the last day of the postponement period), that being the
time limit imposed by section 15(4).
26.
The Court of Appeal dismissed the appeal. It considered that,
notwithstanding section 15(4), the court had the power to adjourn the whole or
part of the sentencing exercise for more than the stipulated 28-day period if
it were necessary to do so and to conclude an adjourned part of the sentencing
process after the expiry of that period. Aikens LJ, delivering the judgment of
the court, noted (at para 26) that the wording of section 15(4) was mandatory
and, referring to the decision of the House of Lords in Menocal,
observed that it could be argued that the same principle should apply, by
analogy, to section 15(4). However, the Court of Appeal came to the opposite
conclusion (at paras 27-30). First, drawing on R v Hayden [1975] 1 WLR
852, Aikens LJ noted that an order that a defendant should pay all or part of
the prosecution costs is itself a part of a sentence, because it is an order
made by the court when dealing with an offender in respect of his sentence.
Secondly, he referred to R v Annesley [1976] 1 WLR 106 and R v Gordon
(Practice Note) [2007] 1 WLR 2117 which establish that the court has a
jurisdiction at common law to adjourn the whole or a part of the exercise of
passing a sentence if it is necessary to do so. Accordingly, thirdly, he
concluded that the judge had the power to adjourn part of the sentencing exercise,
namely the issue of costs of the substantive proceedings, on 10 December 2009
if it was necessary to do so. On a proper analysis of the facts, all the judge
did on 10 December 2009 was to exercise his power to adjourn the final element
in the sentencing exercise that the judge had to carry out, namely whether or
not to make a costs order as to the substantive proceedings. He had the power
to adjourn that issue for more than the 28-day period mentioned in section
15(4) of the 2002 Act. Therefore, the Court of Appeal concluded that the judge
had the power to make the costs order he did on 4 February 2010.
27.
In a case note on Constantine in the Criminal Law Review ([2011] Crim LR 164 at 168), Dr David Thomas questioned whether the approach of the
Court of Appeal in that case can be considered legitimate. He pointed to the
express limitation imposed by section 15(4) of the 2002 Act and observed that
in Annesley the court was not taking steps which contradicted an express
statutory provision. The Board shares Dr Thomas’s concerns in this regard. In
the Board’s view, it is not permissible to employ a common law power to defeat
the policy of section 2A of the 1990 Act which is, amongst other things, to
ensure that costs are dealt with within the further period stipulated in
section 2A(10).
28.
Indeed, the route followed by the Court of Appeal in Constantine
had already been considered and rejected by the House of Lords in Soneji in
the context of postponement of confiscation proceedings. In Soneji an
alternative argument was advanced to the effect that the prosecution could rely
on a common law power to adjourn confiscation proceedings. This submission was
roundly rejected by the House of Lords.
“For the sake of completeness, I
deal briefly with two remaining issues which were debated at the oral hearing.
First, lower courts have accepted that, in parallel to the statutory
confiscation postponement proceedings, there exists a common law jurisdiction
to adjourn confiscation proceedings. In my view section 72A(3) rules out such
co-existing powers. I would rule that there is no such common law
jurisdiction.” (per Lord Steyn at para 27)
“As my noble and learned friend,
Lord Steyn, has explained, in the present case it is said that, in good faith,
the court postponed a relevant determination beyond six months from the date of
Mr Soneji’s and Mr Bullen’s convictions, even though there were no exceptional
circumstances to justify this. I respectfully agree with him that the court had
no common law power to postpone the determination to obtain information.” (per
Lord Rodger of Earlsferry at para 33)
“I do not consider that there is a
common law power to postpone determinations which coexists with the power
provided for in section 72A. There is no need to regard the terms of section
72A as so limited in scope as to indicate that such a common law power must
exist.” (per Lord Cullen of Whitekirk at para 50)
29.
More recently, in Gordon, Sir Igor Judge P referred (at para 41)
to this aspect of Soneji in the following terms:
“For present purposes we must take
note that the consequence of the detailed legislative arrangements governing
possible postponement of confiscation proceedings removed the common law powers
of the court to order the adjournment of confiscation proceedings.”
30.
The rejection of such an approach in Soneji applies with even
greater force to both the circumstances of Constantine, where the
implied power contradicted an express statutory provision, and the present case
where it would contradict an express restriction derived via section 56 of the
1993 Act, the equivalent to section 11(2) of the Courts Act 1971, which, as we
have seen, was upheld in Menocal in the most categorical terms. As a
result, it is not possible to resort to a common law power to adjourn sentence
so as to override a statutory provision limiting the time within which
sentencing must occur. A common law power cannot in these circumstances defeat
the intention of the statutory provision.
31.
Moreover, the appellant is not assisted by Soneji. In Gordon
the Court of Appeal addressed section 155 of the Powers of Criminal Courts
(Sentencing) Act 2000, which repeated the provision originally enacted in
section 11(2) of the Courts Act 1971, and is, therefore, another equivalent
provision to section 56 of the 1993 Act. In delivering the judgment of the
court, Sir Igor Judge P referred (at para 42) to the temptation to seek to
apply Soneji to section 155 and treat it as authority which enables the
court to vary or rescind a sentence beyond the 28-day limit. However, he considered
that that route was not available because of the categorical terms in which the
House of Lords in Menocal had referred to the importance of applying
that provision. He referred (at para 43) to the critical importance of finality
in the sentencing process. Section 155 allowed a small degree of latitude and
the 28-day limit would not prohibit what is in effect a later curing of a mere
procedural irregularity in the way in which the order of the courts was
recorded, or a later procedural step to complete an inchoate order, but without
affecting what had already been announced. However, subject to such
considerations, the limitation point applied. He continued:
“On analysis R v Soneji was
concerned with a different problem, namely, whether the process which would be
expected to culminate in a confiscation order, or a decision that a
confiscation order would be inappropriate, should, after the prescribed time
had elapsed, automatically preclude that question being addressed at all.”
32.
The Board agrees that Soneji is concerned with a wholly different
statutory provision and that the reasoning on which it is based is simply not
applicable to the present case.
33.
It is necessary to consider the submissions of Mr McGuinness for the
appellant against this background. First, he submits that the issue of costs
was alive, having been adjourned from 19 December 2014 until, ultimately, 12 to
14 October 2015. The issue had not been determined but remained for
consideration throughout this period. Therefore, section 2A(10) did not apply
because the court was not varying sentence in any way, but was simply dealing
with a part of the sentence which had been adjourned. He submits that where the
court has adjourned part of the sentence the principle in Annesley
displaces the 28-day time limit. However, this is no more than an attempt to
apply the reasoning in Constantine which, for the reasons stated above,
is in the Board’s view wrongly decided.
34.
Secondly, Mr McGuinness submits that the sentence of nine years’ custody
imposed on 26 November 2014 was not imposed under section 2A(7) of the 1990 Act
as the specified period began only after the end of the hearing on 26 November
2014. The Board is unable to accept this submission. Where the prosecution has
given written notice under section 2(1), section 2(4) requires that, if the
court determines that it ought to make a confiscation order, the court shall
make the required determinations before sentencing or otherwise dealing with
the offender. Section 2A creates an exception which permits the determinations
to be postponed and the court to proceed to sentencing. The Board also notes
that where confiscation proceedings are to be adjourned for the purpose of
obtaining further information, the usual practice is for the confiscation proceedings
to be adjourned before passing sentence. That is what occurred at the hearing
on 26 November 2014. Deemster Birkett decided to postpone the confiscation
proceedings and to proceed to sentence. The transcript confirms that he set the
timetable for the confiscation proceedings before sentencing the respondent.
The only basis on which he could proceed to sentence was section 2A(7). In the
Board’s view, there is no basis for the suggestion that the specified period
begins only after the hearing at which the confiscation proceedings are
postponed. In this case, Deemster Birkett, having decided to postpone
confiscation proceedings, was clearly acting under section 2A(7).
Conclusion
35.
For these reasons, the Board considers that Deemster Birkett did not
have jurisdiction to make a costs order on 14 October 2015. The Board will,
accordingly, humbly advise Her Majesty that the appeal should be dismissed.
