Although the making of a costs order prior to the completion of confiscation proceedings was to take events out of their proper sequence, the costs order was not rendered unlawful or a nullity.Appeal against conviction and sentence following the appellant's ('D') conviction in June 2002 before HH Judge Cartlidge of one count of conspiracy to handle stolen vehicle parts. The conviction came at D's second trial on this count, the first trial having been stopped after all the evidence had been given because D had attempted to nobble the first jury. In April 2002 D was sentenced to three years' imprisonment for attempting to pervert the course of justice, a fine of ?25,000 and was ordered to pay £14,000 towards prosecution costs. The trial judge (Potts J) indicated that if D were to be convicted of the conspiracy offence at the second trial, a consecutive sentence would be appropriate. Consequently, HH Judge Cartlidge sentenced D to a consecutive sentence of three and a half years' imprisonment. D was also ordered to pay £104,000 towards the prosecution costs with two years' imprisonment in default. At a later hearing a confiscation order was made which required D to pay £100,000 within six months, failing which a consecutive period of two years' imprisonment was to be served. In addition to the count of conspiracy, D pleaded guilty to one count of benefit fraud arising out of his involvement in a spare car parts business whilst claiming income support. He was sentenced to a period of 12 months imprisonment concurrent with the periods of imprisonment already imposed. D appealed on the grounds that: (i) the judge had failed to direct the jury adequately about the admissibility of the evidence; (ii) the confiscation order was unlawful because there had been no postponement of the confiscation proceedings as required by s.72A Criminal Justice Act 1988; (iii) the imposition of a costs order before the completion of the confiscation proceedings was wrong; and (iv) having regard to all the circumstances a period of seven and a half years' imprisonment was excessive.HELD: (1) The jury was well entitled to convict D. There was strong evidence against him and none of the members of the court had any doubt about the safety of the conviction. (2) There was nothing in D's ground of appeal regarding the alleged failure to postpone the confiscation proceedings. (R v Sekhon & 6 Ors (2002) EWCA 2954 considered). (3) Although the judge had not followed the correct sequence of events when he imposed the costs order before the completion of the confiscation proceedings, that did not make the costs order unlawful or a nullity. D was entitled to suggest, however, that if the correct sequence had been followed, knowledge of the amount of the confiscation order might have served to reduce the amount that D was ordered to pay by way of costs. (4) Having considered the amount of the costs order, this court was not persuaded that it was excessive. If it had been so persuaded, it would have exercised its powers under s.11(3) Criminal Appeal Act 1968 to make a new and lesser order. (R v Threapleton (2002) 2 Cr App R (S) 46 doubted). (5) There was no ground for criticising the totality of the period of imprisonment imposed on D. However, and solely on the basis of new material put before this court, the total sentence should be reduced to five and a half years' imprisonment.Appeal against conviction dismissed. Appeal against sentence allowed to the extent indicated.

[2003] EWCA (Crim) 1061

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