R v Emmett

An accused’s acceptance of an allegation in a prosecution statement under section 3(1) of the Drug Trafficking Offences Act 1986 does not exclude the statutory right to appeal against the resulting confiscation order. An appeal based on mistake requires the accused to establish a material mistake of law or fact which personally induced the acceptance. Even then, the appeal may fail if the order would inevitably have been made and no injustice occurred.

A freely made agreement, given on instructions and unaffected by mistake, provides a sufficient basis for a confiscation order. In an appropriate case, participation as a principal organiser may also justify an inference of expenditure connected with drug trafficking, engaging the statutory assumption that the expenditure came from trafficking receipts.

The respondents were two principal organisers of an operation to import four tonnes of cannabis. They pleaded guilty to fraudulent evasion of the prohibition on importing a controlled drug and, through counsel acting on instructions, agreed confiscation orders under the Drug Trafficking Offences Act 1986.

The Court of Appeal reduced their prison sentences and later quashed their confiscation orders. It considered that the evidence did not justify an inference that the respondents had contributed purchase money and that the seized cannabis could not itself constitute proceeds of drug trafficking. The Crown appealed on certified questions concerning whether an acceptance treated as conclusive under section 3(1) excluded an appeal based on mistake and, if not, what burden and procedure applied.

1. Appeals allowed unanimously. Lord Steyn delivered the leading speech. Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Nicholls of Birkenhead and Lord Clyde agreed that both appeals should be allowed. The confiscation orders against both respondents were restored.

2. Per Lord Steyn, section 3(1) of the Drug Trafficking Offences Act 1986 did not oust the right of appeal conferred by sections 11 and 50(1) of the Criminal Appeal Act 1968. A statutory right of appeal remains unless excluded expressly or by necessary implication. Section 3(1) was a procedural provision directed to proof in the Crown Court. Its reference to an acceptance being “conclusive” enabled that court to treat the acceptance as proof; it was not language apt to restrict the Court of Appeal’s jurisdiction. Tredwen [1994] 99 Cr.App.R. 154 was overruled on this point.

3. Per Lord Steyn, an appellant asserting that an acceptance resulted from a mistake of law or fact bears the burden of persuading the Court of Appeal of that assertion. The relevant mistake is the accused’s own mistake, rather than counsel’s mistake. It must be material and must actually have induced the acceptance. The appropriate means of receiving information or evidence was left for the Court of Appeal to determine.

4. Per Lord Steyn, proof of such a mistake does not necessarily require the order to be quashed. The court may consider whether the same confiscation order would inevitably have followed without the mistake. An appeal may be dismissed if, on a global view, no injustice is shown.

5. The alleged mistake was not established. Counsel for one respondent had recognised that the cannabis could not itself be treated as proceeds, while the basis of the other respondent’s advice was unknown. There was no evidence explaining why either respondent personally agreed to the orders. Their freely made agreements, given on instructions and unaffected by mistake, were acceptances within section 3(1) and were sufficient foundations for the orders.

6. Lord Steyn added that, had examination of the evidence been necessary, the respondents’ roles as principal organisers and their failure to explain the funding permitted a common-sense inference that they jointly incurred substantial expenditure. That inference engaged section 2(3)(b), under which the expenditure was assumed to have been met from drug-trafficking payments.

1. House of Lords: Allowed the Crown’s appeals unanimously and restored the confiscation orders against both respondents.

2. Court of Appeal (Criminal Division): Reduced each respondent’s sentence from 12½ years to nine years and subsequently quashed their confiscation orders. It refused the Crown leave to appeal but certified points of law of general public importance.

3. Crown Court at Exeter: Following guilty pleas and agreements made through counsel, imposed sentences of 12½ years’ imprisonment and confiscation orders of £1,000 against Brian Emmett and £20,705.21 against Michael Emmett.