In the circumstances of each case, when jurisdiction to make confiscation orders was declined by the Crown Courts, there was an order that, having regard to s.50(1) Criminal Appeal Act 1968, was itself a sentence and thus amenable to reference under s.36 Criminal Justice Act 1988 as unduly lenient.Applications by the Attorney-General under s.36 Criminal Justice Act 1988 for leave to refer to the Court of Appeal sentences that appeared unduly lenient given decisions not to embark on confiscation proceedings for want of jurisdiction. In two unrelated cases ('Case A' and 'Case B') Crown Court judges declined to hear confiscation proceedings, in reliance on decisions of the Court of Appeal that had since effectively been overruled. In Case A, two offenders were convicted of conspiracy to defraud and sentenced to five years' imprisonment each. The recorder ruled that the Crown Court had no jurisdiction to embark on confiscation proceedings because the notices served by the Crown were defective and she was bound to follow R v Palmer (2002) EWCA Crim 2202. In Case B, three offenders were convicted of conspiracy to steal and were sentenced to two years', three years' and 18 months' imprisonment respectively. The judge ruled that he was bound by R v Pisciotto (2002) EWCA Crim 1592 to hold that a procedural irregularity in the course of the confiscation proceedings had left him without jurisdiction. Palmer (supra) and Pisciotto (supra) were subsequently overruled. In respect of both cases the Attorney-General submitted that: (i) a refusal to make a confiscation order could be referred under s.36; (ii) no confiscation orders were made when an investigation might otherwise have led to substantial orders; and (iii) the sentencing of the offenders was therefore unduly lenient. The offenders argued that: (a) the only sentences passed were those of imprisonment and it was too late to seek to refer those sentences; and (b) as the Crown Courts concerned had no power to impose confiscation orders, the Court of Appeal also lacked the power to impose such orders on a reference from the Attorney-General.HELD: (1) By ruling in favour of the offenders in each case, the recorder and the judge were making no order on the application of the Crown for a confiscation order. Making no order was an order in itself. In the circumstances of each case, when jurisdiction was declined there was an order that, having regard to s.50(1) Criminal Appeal Act 1968, was itself a sentence and thus amenable to reference under s.36 of the 1988 Act as unduly lenient. (2) Section 36(2) of the 1988 Act should not be read as requiring notice of an application to refer "within 28 days from the day on which the sentence, or the last of the sentences, was passed" as including the words "or should have been passed". (3) The Court of Appeal had the jurisdiction to make such orders, if any, as were appropriate in all the circumstances. The court below had power to impose a confiscation order and the Court of Appeal thus had similar power.Applications granted.

[2003] EWCA Crim 3374

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