Regina v Emmett and Another

The House of Lords allowed the Crown's appeal and restored the confiscation orders made against the two respondents. The court held that section 3(1) of the Drug Trafficking Offences Act 1986 — which permits the Crown Court to treat a defendant's acceptance of allegations in a prosecution statement as "conclusive" for the purposes of determining benefit from drug trafficking — does not by necessary implication oust the statutory right of appeal under the Criminal Appeal Act 1968. An appellant who asserts that such acceptance was induced by a mistake of law or fact bears the burden of proof. On the facts the House concluded there was no established mistake by counsel or the respondents and that the agreement to the confiscation orders, together with the available circumstantial evidence, provided a lawful basis for the orders; alternatively the assumption in section 2(3)(b) could be applied on the state of the evidence.

Background and facts:

On 7 November 1993 a major importation of cannabis resin was intercepted at Bideford Quay. The respondents, Brian Emmett and Michael Emmett, were two of four principal organisers. They pleaded guilty on 25 October 1994 at the Crown Court, where agreed confiscation orders were made under the Drug Trafficking Offences Act 1986 and substantial prison sentences were imposed. The Crown Court accepted agreed figures for benefit and made confiscation orders accordingly.

Procedural history:

• The respondents, with two others, appealed their sentences and confiscation orders to the Court of Appeal (Criminal Division). On 5 February 1996 the Court of Appeal reduced the custodial sentences. On 16 February 1996 the Court of Appeal quashed the confiscation orders as regards the two Emmetts but upheld them for the other organisers; the Crown was refused leave to appeal but the court certified points of law of general importance.
• Leave to appeal on the certified questions was granted to the House of Lords.

Nature of the issues before the House:

• (i) Whether section 3(1) of the 1986 Act, by declaring a defendant's acceptance of a prosecution statement may be treated as "conclusive" by the Crown Court, ousted the defendant's right to appeal against a section 4 confiscation determination.
• (ii) If appeals are available, whether a defendant bears any legal or evidential burden to prove that his acceptance was caused by a mistake of law or fact and whether the Court of Appeal may quash or vary a section 4 determination before receiving evidence from the defendant.

Court’s reasoning and decision:

• The House rejected the Crown's submission that section 3(1) operated to oust the statutory right of appeal. The word "conclusive" in the statutory context was directed to the Crown Court's approach to proof, not to the jurisdiction of the Court of Appeal. General principles disfavoring implied ouster of appeal rights supported this conclusion.
• The court held that an appellant who alleges that acceptance of a section 3 statement resulted from a mistake of law or fact bears the burden of proving that assertion; the Court of Appeal must assess causative relevance and may require appropriate evidence or procedure.
• On the facts the House found no satisfactory evidence that the defendants or their counsel acted under a material mistake of law or fact that induced acceptance. The agreement to the confiscation orders was a lawful basis for the judge's orders and, alternatively, the circumstances justified applying the assumption in section 2(3)(b) of the 1986 Act.

Relief sought:

The Crown sought restoration of the confiscation orders quashed by the Court of Appeal. The respondents sought to uphold the quashing on grounds that their acceptance had been induced by mistake. The House allowed the Crown's appeal and restored the confiscation orders.

Appeal allowed. The House held that section 3(1) of the Drug Trafficking Offences Act 1986 does not by necessary implication oust the right of appeal under the Criminal Appeal Act 1968; an appellant asserting that acceptance of a section 3 statement was induced by a mistake of law or fact bears the burden of proof; on the facts no such mistake was established and the confiscation orders were properly made (also justifiable on the state of the evidence and by application of section 2(3)(b)).

Crown Court at Exeter: pleas of guilty and agreed confiscation orders made on 25 October 1994. Court of Appeal (Criminal Division): on 5 February 1996 reduced custodial sentences; on 16 February 1996 quashed the confiscation orders as regards Brian Emmett and Michael Emmett while upholding those for co-defendants; Crown refused leave to appeal but the Court of Appeal certified points of law of general importance, leading to leave to appeal to the House of Lords.