Bailey, R. v

A confiscation order made under Criminal Justice Act 1988 is an order to pay money, measured under the statutory scheme, and is not an order confiscating a particular asset. A defendant who agreed the realisable-assets figure bears the burden of showing that the order is unlawful, wrong in principle, manifestly excessive, or otherwise falls within a recognised ground of appeal against sentence.

Possible erroneous legal advice when the figure was agreed does not, without more, make the resulting order excessive or wrong in principle. This is particularly so where the sentencing judge knew that the defendant held only a part interest in the asset referred to when fixing the agreed monetary figure.

The appellant pleaded guilty at Preston Crown Court to offences involving false insurance documents and fraudulent fuel-duty-rebate claims. Her benefit was assessed at £626,511.45. The Crown and defence agreed a realisable-assets figure of £195,315, based on the value of a house jointly owned with Mr Bailey and a small parcel of land.

After the confiscation order was made, the appellant contended that her counsel had wrongly agreed that figure because Mr Bailey had an equitable interest in the house. She appealed against the confiscation element of her sentence, contending that the order was manifestly excessive or wrong in principle.

1. Appeal dismissed. The confiscation order was to remain. The judge made no error of law and the order was neither manifestly excessive nor wrong in principle.

2. Under section 71 of the Criminal Justice Act 1988, the order was properly made for the lower of the benefit and realisable-assets figures. The agreed realisable amount was lower. Although the figure reflected the value of the house and land, the order was for payment of money; it did not confiscate the house.

3. The appellant had agreed the realisable-assets figure and bore the burden of establishing that her realisable assets were below the benefit figure. The sentencing judge knew that she held only a part interest in the equity of the house. He therefore did not proceed on a mistaken factual basis.

4. The court accepted that counsel’s advice about the route for raising Mr Bailey’s interest might have been incorrect. That did not provide a basis for intervention on an appeal against sentence. The principles governing an attempt to vacate a guilty plea given on defective advice were materially different.

5. The court treated the appeal as one under section 50(1)(e) of the Criminal Appeal Act 1968. It could intervene where a sentence was unlawful, wrong in principle, manifestly excessive, based on a wrong factual basis, or affected by improper or fresh matters. None applied. If the order were quashed, the court could neither remit the matter to the Crown Court nor substitute another confiscation order, which would create an evident injustice to the prosecution.

• Court of Appeal (Criminal Division): By [2007] EWCA Crim 2873, dismissed the appeal against the confiscation order.
• Crown Court at Preston: Following guilty pleas, made a confiscation order of £195,315 under section 71 of the Criminal Justice Act 1988 and imposed concurrent custodial sentences.