THE LORD CHIEF JUSTICE: On 26th April 1973 three indictments had been preferred against the appellant, Peter Davies Saville. They were in respect of acts of dishonesty done when he was in a position of trust. But he pleaded guilty to the charges which arose so far as our case today is concerned, and he was sentenced to prison for a substantial period and a criminal bankruptcy order was made in respect of him in the earn of £35, 000. Thanks to counsel's economy of language, we are not bound to look into those background matters today, because the sole argument is concerned with the £35, 000.
Before I deal with the facts of the matter, it will be convenient to look briefly at the statutory provisions under which that power to Bake criminal bankruptcy orders was conferred. The particular authority is in sections 39 and 40 of the Powers of Criminal Courts Act 1973. Section 39(1) reads:
"Where a person is convicted of an offence before the Crown Court and it appears to the court that — (a) as a result of the offence, or of that offence taken together with any other relevant offence or offences, loss or damage (not attributable to personal injury) has been suffered by one or more persons whose identity is known to the court; and (b) the amount or aggregate amount, of the loss or damage exceeds £15, 000; the court may, in addition to dealing with the offender in any other way (but not if it makes a compensation order against him), make a criminal bankruptcy order against his in respect of the offence or, as the case may be, that offence and the other relevant offence or offences. "
Subsection (3) imposes certain obligations upon a court when making a criminal bankruptcy order. By section 39(3)(a) "A criminal bankruptcy order shall specify (a) the amount of the loss or damage appearing to the court to have resulted from the offence or, if more than one, each of the offences". Other similar provisions are made in regard to specifying persons. Those are not of materiality in this case.
The whole argument on behalf of the appellant is derived from the fact that under section 39(3)(a) there was an obligation to specify the amount of loss or damage, and if it was more than one offence, each of the offences.
If one goes to the Second Schedule of the same Act, it is possible to see the general pattern in which criminal bankruptcy orders fit into the general law of bankruptcy. The importance of specifying the amount in regard to each offence is due to the fact that the figure specified under section 39 becomes for most practical purposes throughout the bankruptcy a statement of petitioning creditors' debts, there being not the usual machinery available for the petitioning creditor to call his debt as he would in an ordinary bankruptcy. So it is obviously quite important the provisions of section 39(3) should be meticulously obeyed. But at the same time the consequence in this instance is, in practice, very little indeed.
I make that statement good by going to the circumstances and seeing what happened. The case was before the learned trial Judge, Mr. Justice Ackner (as he then was) on 26th April 1978. It is evident that he was told that the amount for which the criminal bankruptcy order was appropriate was £35, 000. In the criminal bankruptcy order which was in due course mad© on that day the figure of £35, 000 was specified as a lump sum in respect of all the offences. In point of fact, since there were more than one offence, the figure of £35, 000 should have been allocated in accordance with the statute.
The point is totally unimportant in the present instance, because there was only one creditor concerned, that is to say the appellant's employers, who were the only persons who remained as creditors in the order. Therefore that division amongst them is a matter of no consequence. But at the ease time it ought to have been done, and when the matter was brought to the Judge's attention, as it was on 19th July, he readily agreed that the amount should be divided into the various damage in the offences, and this was in due course done.
Now the matter comes before us on appeal by counsel that the order was defective when first made, and that it was not possible for the Judge to do, as he attempted to do on 19th July, to sake good this defective order.
The main reason why it is contended that the first order should not be made good by the Judge is because reference is made to section 11 of the Courts Act 1971, and it is contended that within the terms of section 11 is to be found the only situation in which the kind of alteration which appears to be contemplated can be made.
This is what section 11(2) says: "Subject to the following provisions of this section, a sentence imposed, or other order made, by the Crown Court when dealing with an offender may be varied or rescinded by the Crown Court within the period of 28 days beginning with the day on which the sentence or other order was imposed or made, or where subsection (3) below applies, within the time allowed by that subsection. " There is undoubtedly within that paragraph a general and important power whereby the Crown Court can make orders varying or rescinding certain decisions within the period of 28 days. But the period of 28 days had elapsed in the instant case, and therefore it was not possible for the prosecution to rely on that.
We were referred to one authority in the House of Lords dealing with these criminal bankruptcy orders and indeed dealing with the very section with which we are concerned. The case we were referred to, to which considerable importance is attached, is Customs and Excise Commissioners v. Menocal (1979) 2 W. L. R. 876. The headnote reads:
"The appellant, who had money in her possession, was arrested on a charge of contravening section 304 of the Customs and Excise Act 1952 by being knowingly concerned in the fraudulent evasion of the prohibition in section 3(1) of the Misuse of Drugs Act 1971 against the importation of a controlled drug. She pleaded guilty to the charge and was sentenced to a term of imprisonment. More than three months after the imposition of the sentence of imprisonment, on an application for an order forfeiting the money found in her possession on arrest, the court inferred that the whole of the money had been provided to her to assist in the importation, and a forfeiture order was made, expressed to be under section 27 of the Act of 1971 or, alternatively, under section 43 of the Powers of Criminal Courts Act 1973. She appealed against the order of forfeiture on the grounds that it was made without jurisdiction since, inter alia, the time within which the sentence might be varied under section 11(2) of the Courts Act 1971 had expired. The Court of Appeal dismissed the appeal. "
On her appeal to the House of Lords it was held "that by virtue of the definition of 'sentence' in section 57 of the Courts Act 1971 the word 'sentence' in section 11(2) of that Act included a forfeiture order made against the offender; that section 11(2) laid down very clearly that any sentence or other order might be varied or rescinded by the Crown Court within 28 days, but that there was no power in the Crown Court to vary or rescind a sentence or any other order after the expiry of that period, and that accordingly, in the circumstances, the appeal must be allowed. "
When one looks at section 57 of the Courts Act 1971 and the definition of "sentence", one sees why the House of Lords came to that view: " 'sentence' in relation to an offence, includes any order made by a court when dealing with an offender..... ", including a recommendation for deportation. So it has a wide meaning. It includes any order made by the court when dealing with an offender, and the question is whether, in the circumstances of the instant case, it can be said, as it was said in Menocal, that there was a variation or attempted variation.
The learned trial Judge, Mr. Justice Ackner, took the view that he was not varying his sentence when he made the fresh disposition on 19th July. He regarded the order as being inchoate at that time and considered that if he made the appropriate alterations and gave them the authority of the Court, they would then be valid for all purposes.
However the House of Lords unquestionably, on the facts which I have read from the headnote, took the view that the word "sentence" had a wide meaning and held in that case that there had been an attempt to vary the sentence out of time.
We do not think that the case of Menocal is really a case which should sway us today, because the factual differences are so numerous.
In Menocal the Court did attempt to vary what was undoubtedly a sentence on a matter which had not passed through the minds of the parties or their advisers during the trial. Some substantial time after the trial someone had the idea of making a forfeiture order and that was done. It was a case in which the penalty against the accused had been increased after the date of the hearing in respect of a matter upon which no one had exercised their minds at the time.
Comparing the situation in the instant case, here, as I have pointed out more than once, there was only one creditor. It was purely an exercise of futility that the amount should be split up as the Act provides. Never mind. These things do happen. May be it is necessary sometimes for acts of futility to be acted out. But in this instance we cannot believe, considering all the circumstances, and comparing them with Menocal, that we should regard ourselves to be bound by Menocal because of the extreme difference between the two cases.
We are reinforced in that view by the assistance given to us by the respondent, who cited the ruling of Judge Rubin in R. v. Michael (1976) Q. B. 4l4. There the defendant had been tried and acquitted on an indictment containing a large number of counts. Application was made at the end of the proceedings for the defence costs to be paid out of central funds. Although no specific reference was made to the costs of the committal proceedings, it was the court's intention to include those costs in the order. The record showed that the order was for the defence costs to be paid out of central funds under section 3. The taxing officer excluded the costs of the committal proceedings on the ground that they had not been included in the order.
The matter was brought back to the Judge and it was held "that 'may' in section 3(9) of the Costs in Criminal Cases Act 1973 made it clear that the court had a discretion whether to include the costs of the committal proceedings in an order for the defence costs to be paid out of central funds; that it followed that an order for costs under section 3(1)(b) of the Act, without specific reference to committal proceedings, referred only to the costs of the trial on indictment and, accordingly, the order was defective in that it did not reflect the intention of the court to include the costs of the committal proceedings. "
At page 419E there is a passage in the judgment of Judge Rubin, in which he says "In my judgment these cases" -- he is referring to the authorities already cited —"establish that this court, as a court of record, has an inherent jurisdiction to remedy mistakes in its record. There are two other cases to which I must refer which show, in my judgment, that an omission from an order should be rectified if it is of such a character that if it had been mentioned before the order had been entered the omission would have been supplied as a matter of course without further argument. " We cannot have a better illustration of that principle being applied than the principle which is sought to be adopted today.
Having regard to the existence of the power, having regard to the total unimportance of the alteration performed, we think that distinguishes this case from the earlier authorities to the contrary to which I have referred. We consider the learned Judge properly made the adjustment which he made and it can properly be regarded as an adjustment of an inchoate order which at that moment existed.
In those circumstances the appeal is dismissed.
The Court certified the following point of law of general public importance:
"If, in purported performance of its duty under section 39(3)(a) Of the Powers of Criminal Courts Act 1973, and there being two or more relevant offences, the Crown Court computes the loss or damage as a single sum, can the Court subsequently apportion that sum between the relevant offences otherwise that under section 11 of the Courts Act 1971".
Leave to appeal to the House of Lords was refused, but legal aid to make application to the House of Lords was granted, with liberty to apply for further legal aid if leave to appeal is obtained.
