Lunnon v R.

When applying the statutory assumptions in confiscation proceedings, the court must stand back and make an independent assessment of whether their application creates, or may create, a serious or real risk of injustice. If it does, a confiscation order must not be made.

An unqualified Crown concession that an offender had no previous involvement in drug trafficking cannot be ignored at the confiscation stage. Unless the Crown withdraws the concession after notifying the defendant, the court must address it and give a reasoned explanation before applying assumptions inconsistent with it.

The appellant pleaded guilty at Sheffield Crown Court to conspiracy to supply cannabis. His agreed basis of plea recorded that he had received no financial benefit and had no previous involvement in drug trafficking. The Crown accepted that basis.

Following sentence, the judge made a confiscation order under Drug Trafficking Offences Act 1986, using the statutory assumptions contained in the consolidated Drug Trafficking Act 1994. The judge relied on the appellant’s lack of credibility and business documentation, but did not explain why the Crown’s concession did not displace the assumptions. The appellant appealed against the confiscation order.

1. Appeal allowed. The confiscation order was quashed.

2. Under section 4(4) of the Drug Trafficking Act 1994, the court must not mechanically apply the statutory assumptions in section 4(3). It must stand back and assess independently whether their use would, or might, create a serious or real risk of injustice. That safeguard is fundamental to the compatibility of the reverse burden with Article 6 of the European Convention on Human Rights and Fundamental Freedoms.

3. The sentencing judge correctly identified the civil standard and the relevant assumptions. However, he put aside the agreed basis of plea and the Crown’s express concession that the appellant had no previous involvement in drug trafficking. The judge had said he would return to that concession, but did not do so. The court could therefore identify no reasoning that justified relying on assumptions inconsistent with it.

4. The Crown’s submission that a defendant might be sentenced as a first-time dealer yet face confiscation for earlier trafficking did not answer the point. Confiscation forms part of the sentencing process. Where the Crown has made an unqualified concession, it must withdraw it if later information shows it to be wrong and notify the defendant. The defendant may then seek to show that the assumptions are incorrect or that their application would create a serious risk of injustice.

5. Ignoring an unwithdrawn concession without a fully reasoned explanation created an apparent injustice. The order could not stand.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the confiscation order.
• Sheffield Crown Court: Following the appellant’s guilty plea to conspiracy to supply cannabis, imposed 13 months’ imprisonment and later made a confiscation order of £12,371.29 with a consecutive default sentence.