CASE UPDATESRESTRAINT ORDERSR v M (Restraint Order: Jurisidiction)Court of Appeal, published 24^th October 2008A trial judge did have jurisdiction to try an application by the prosecution for a defendant to be committed for contempt for allegedly breaching a restraint order. The Court of Appeal (Criminal Division) dismissed the interlocutory appeal of M, who was awaiting trial before Judge Goymer in Southwark Crown Court who held that he had jurisdiction to determine an application by the prosecution seeking committal of M for contempt of court, founded on an alleged breach of a restraint order, imposed under section 41 of the Proceeds of Crime Act 2002, prohibiting him from dealing with certain realisable property.

 SENTENCING UPDATESOFFENCES TAKEN INTO CONSIDERATIONR v LaveryCourt of Appeal, published 20^th October 2008There was no reason in principle why an offence taken into consideration, which was more serious than the offence charged, should not result in a higher sentence than would otherwise have been the case. When assessing whether there was a significant risk to members of the public arising from the commission by a defendant of further offences, the court was entitled to take account of offences which a defendant had asked to be taken into consideration. The Court of Appeal (Criminal Division) refused an application by Lavery for leave to appeal against a sentence of detention for public protection with a minimum specified period of 30 months imposed by Judge Everett at Bolton Crown Court on 11^th June 2008 on his plea of guilty to robbery. Four other offences of robbery were taken into consideration. The Court of Appeal stated that the application gave rise to two issues as to the proper approach to be taken to offences that a defendant invited the court to take into consideration: 1 How should the court approach offences to be taken into consideration that revealed offending of a substantially more serious nature than the offence or offences for which the defendant stood to be sentenced? 2 Was the court entitled to take account of offences to be taken into consideration when assessing whether there was a significant risk to members of the public occasioned by the commission by the defendant of further specified offences under sections 225 and 226 of the Criminal Justice Act 2003. On the first issue, the sentence was intended to reflect a defendant’s overall criminality. There was no reason in principle why an offence to be taken into consideration, which was of a more serious nature than the index offence or offences, should not result in a higher sentence than would otherwise have been the case, as the sentence would then reflect the defendant’s overall criminality. However, their Lordships shared the judge’s concern as to the manner in which this case had been handled and presented. There were dangers in an approach which suggested that if a crime could somehow be cleared off the books then all was well. It was not. Inappropriate non-charging and undercharging were inimical to the administration of justice. On the second issue, it was clear from section 229 of the 2003 Act that the court was entitled to take account of offences to be taken into consideration when assessing whether there was a significant risk under sections 225 to 228. Under both section 229(2) and (3) the court might take account of “any information which is before it about any pattern of behaviour of which the offence forms part” and “any information about the offender which is before it”.

 FRAUDR v Mehta, Sharman, Reardon, Ratcliff [2008] EWCA Crim 1491Court of AppealThe appellant (M) appealed against a concurrent sentence of 10 years' imprisonment for carousel fraud and conspiracy to launder the proceeds, and the three remaining appellants (X) appealed against sentences of eight years' imprisonment for conspiracy to launder those proceeds. The indictments against the appellants had contained substantive counts of money laundering to cater for the possibility that the jury might be satisfied in the case of one or more of the appellants that he was party to laundering specific sums of money that passed through his hands, but not to the wider conspiracy. The jury's verdicts of guilty of conspiracy to launder the proceeds of the fraud made it unnecessary to take verdicts on those substantive counts. The trial judge therefore concluded that X had been party to the laundering of all the proceeds, with the exception of £1 million, which might have been handled outside the loop of which they were part. He apportioned the sums involved in the fraud as being approximately £7.1 million for M and £6 million for X, and drew a distinction between M and X to reflect both the difference in amounts for which they bore responsibility and the difference between fraudster and money launderer. The appellants submitted that the sentences were manifestly excessive.

The Court of Appeal held that M was the organiser of the fraud, which involved a loss of just over £7 million, and on the evidence, the judge was entitled to conclude that he had played a central role. Bearing in mind his role in the fraud and the amounts involved, and applying the principles in the relevant authorities, it was clear that a 10-year sentence was too long. The proper sentence after trial for a person in M's position was eight to nine years. Furthermore, in M's case the personal material, not all of which was available to the trial judge, merited a modest adjustment in that sentence. A sentence of seven-and-a-half years would therefore be substituted for the 10-year sentence. (2) In the case of X, and respecting the distinction that the trial judge made between their case and that of M, the proper sentence for conspiracy to launder about £6 million ought to have been six-and-a-half years instead of eight years.