Priestley v R

In confiscation proceedings under the Criminal Justice Act 1988, statutory assumptions may be made where their conditions are met. A defendant who seeks to displace an assumption, including on the ground of serious risk of injustice, bears the burden of establishing a proper evidential basis.

An unsupported assertion that income, banked money, cash and expenditure may represent the same funds does not establish impermissible double counting. The court may draw appropriate inferences from a failure to provide ordered financial information or evidence. A proposed basis of plea is not evidence for confiscation purposes unless supported by evidence.

Priestley v R concerned a large-scale counterfeiting operation involving perfumes, champagne and clothing. The appellant pleaded guilty at Bradford Crown Court to three conspiracies to sell or distribute goods bearing signs likely to be mistaken for registered trade marks.

The Crown Court made a confiscation order of £2,290,907.52, ordered £30,000 prosecution costs, and fixed a ten-year term of imprisonment in default. The appellant challenged the valuation of perfume sales, alleged double accounting under the statutory assumptions, contended that his realisable assets were lower, and challenged the default term and costs order.

1. The appeal was allowed only in relation to the period of imprisonment in default. The judge had wrongly proceeded on the basis that a ten-year default term was mandatory. The court would substitute a lesser term after receiving further submissions. The appeal against the confiscation order and costs order was dismissed.

2. The conditions for applying section 72AA of the Criminal Justice Act 1988 were satisfied. The prosecution could rely on the statutory assumptions in assessing benefit. The fact that income from perfume sales might also have been treated as direct benefit under section 71 did not prevent assumptions being made as to other property or expenditure.

3. Double accounting could in principle create a serious risk of injustice. If the evidence showed that cash, bank lodgements or expenditure represented the same money as the sale proceeds, the court could decline to make the relevant assumption. But the burden lay on the appellant. His assertion was speculative because he gave no evidence, called no witnesses and did not establish that the calculated perfume income represented all or most of his criminal benefit.

4. The court was entitled to draw inferences from the appellant’s repeated failure to comply with orders for financial information. His proposed basis of plea was not evidence for confiscation purposes. There was no evidential basis on which the judge could find that the appellant’s realisable assets were below his determined benefit, or that aggregation of the assumed items was unjust.

5. The judge was entitled on the evidence to value the counterfeit perfume at £5 per bottle and to include the challenged expenditure items. The appellant had not adduced evidence capable of displacing the prosecution case. For the same reason, there was no basis for setting aside the costs order.

• Court of Appeal (Criminal Division): Allowed the appeal only as to the ten-year term of imprisonment in default, which had been imposed on an erroneous mandatory basis. It otherwise dismissed the appeal.
• Bradford Crown Court: His Honour Judge Hull made a confiscation order of £2,290,907.52, fixed ten years’ imprisonment in default, and ordered £30,000 prosecution costs.