Stapleton, R v

A transitional provision does not prevent confiscation under the later statutory regime where the prosecution confines its application to offences committed after commencement. Earlier offences in the same proceedings do not bar that course. Applying the later regime to post-commencement offences is not retrospective merely because related offending predates commencement. Where statutory confiscation assumptions apply, a defendant who produces no evidence capable of displacing them fails to discharge the civil burden and the court must give effect to the assumptions.

The appellant pleaded guilty in Redditch Magistrates’ Court to six offences of furnishing false information. She was committed to the Crown Court for sentence and confiscation proceedings under Proceeds of Crime Act 2002. The Crown Court later made a confiscation order of £24,975.85.

Some of the charged offending predated 24 March 2003, when the relevant confiscation provisions came into force. The appeal challenged the Crown Court’s power to use the 2002 Act, alleged an impermissible retrospective effect, and disputed the conclusion that the appellant had not rebutted the statutory assumptions concerning money in her bank account.

1. Appeal dismissed. The court held that paragraph 3 of the transitional order did not prevent a confiscation order under the Proceeds of Crime Act 2002 where the prosecution sought the order only in respect of offences committed after 24 March 2003.

2. The court followed the reasoning in R v Aslam [2004] EWCA Crim 2801. Its materially similar transitional provision allowed the prosecution to choose the offences on which to seek confiscation. Unless Aslam was plainly wrong or the statutory regimes materially differed, this court was bound to follow it. Neither condition was met.

3. The use of the 2002 Act was not retrospective. The order rested on post-commencement offences. The criminal lifestyle consequences of that regime would have been available had the prosecution relied on those offences alone, so the earlier offences did not give the legislation retrospective operation.

4. The judge was entitled, and on the evidence bound, to apply the relevant confiscation assumption to the increase in the appellant’s bank balance. The appellant produced no evidence of legitimate income or other material capable of displacing the assumption. Her difficulty in giving a coherent account of her circumstances did not alter the civil burden resting on her.

• Court of Appeal (Criminal Division) — by leave of the Single Judge, dismissed the appeal against the confiscation order: [2008] EWCA Crim 1308.
• Crown Court — on 27 September 2007 made a confiscation order of £24,975.85, with nine months’ imprisonment in default. An earlier suspended sentence order was imposed on 29 March 2007.
• Redditch Magistrates’ Court — on 7 February 2007 the appellant pleaded guilty to six offences and was committed for sentence under section 70 of the Proceeds of Crime Act 2002.