Practice and Procedure


PUBLISHED May 23, 2003

A compensation order was unlawful when it was made at an adjourned hearing 106 days after the sentence hearing where the judge did not give reasons for the postponement.Appeal against compensation orders with leave of the single judge. On 1 July 2001 at Preston Crown Court the defendant ('J') pleaded guilty to two counts of conspiracy to defraud. On 30 August 2001 J was sentenced by HH Judge Smith to 200 hours community service. J had sold advertising space by means of false representations to prospective advertisers. Many businesses, some of them small, were taken in and sustained loss. At the hearing on 30 August there was a discussion about fixing a hearing of a confiscation application to be made by the Crown and the 14 November 2001 was decided on. On 14 November 2001 a compensation order was made against J to pay a total of ?8,757.10 to 23 named payees. J appealed the confiscation order on the grounds that the judge did not have power to make a compensation order 106 days after making a community service order in respect of the same two offences. The compensation order was therefore unlawful because it was a variation of the original sentence of community service outside the time limit of 28 days specified in s.155 Powers of Criminal Courts (Sentencing) Act 2000. The Crown contended that s.72A(7) and (9) Criminal Justice Act 1988 could be interpreted to mean that the sentence was not complete until the compensation order had been made and, therefore, time did not begin to run under s.155 of the 2000 Act until 14 November 2001.HELD: (1) Section 72A could not be read in the way the Crown contended. The section was clear and specific in its meaning and was fully explained in R v Darrien (2001) 1 Cr App R (S) 477. (2) The solution to the problem in the present case could be found in the case of R v Darrien (supra). That case demonstrated that the courts had a common law power to postpone all, or any part of, a sentence and that power was not subject to any specific common law time limit. The power was separate from the statutory power to vary a sentence after it had been passed. (3) There was one important limitation to that power namely, the judge must spell out clearly and precisely the purpose or purposes of the postponement of the sentence or part of it at the time of postponement. It was not sufficient for the judge to adjourn for a specified purpose and then at the adjournment hearing to impose a sentence that was not expressed to be in contemplation at the time when the hearing was adjourned. (4) The judge had failed to make clear at the 30 August hearing that he would consider making a confiscation order. As a result the compensation order made at the adjourned hearing was unlawful. (5) The decision was made with regret. In future, to avoid such pitfalls, judges and the Bar should make sure that s.130(3) of the 2000 Act was considered at the time of sentencing. The essential rule was for the judge to state fully his reasons for postponing his decision as to all or part of a sentence to make it clear what sentence or sentences he would consider at the adjourned hearing.Appeal allowed.