Hirani, R. v

A consent-based confiscation order is not ordinarily set aside because a defendant allegedly received erroneous advice when agreeing a compromise. A certificate of inadequacy under Criminal Justice Act 1988 cannot be used to reopen the agreed or determined basis of realisable assets on the assertion that the defendant never possessed them.

The guilty-plea jurisprudence on erroneous advice does not generally transfer to confiscation proceedings, which are appealed as part of sentence. Relief from a consent order is conceivable only in the most exceptional circumstances, where there is a well-founded basis for finding that the whole process was unfair.

The appellant pleaded guilty at Bolton Crown Court to false accounting and conspiracy to cheat the public revenue. Following confiscation proceedings, he agreed a benefit figure of £161,023.57 and realisable assets of £110,000. The Crown Court made a confiscation order on those terms, with two years to pay and three years’ imprisonment in default.

When enforcement began, the appellant contended that he had agreed the realisable-assets figure on erroneous advice that he could later obtain a certificate of inadequacy if unable to pay. He appealed against the confiscation order, seeking its quashing or replacement by no order. The central issue was whether that alleged advice rendered the consent-based order unsafe or manifestly excessive.

1. Appeal dismissed. The confiscation order was a compromise by which the appellant accepted a lower realisable-assets figure and a longer period to pay, while the prosecution gave up the opportunity to seek a higher order. The sentencing judge made the order on the basis jointly invited by the parties. The judge did not sentence on an erroneous factual basis.

2. Section 83 of the Criminal Justice Act 1988 could not be used to secure a certificate of inadequacy by asserting that the appellant had never possessed the assets which he had agreed, for compromise purposes, to treat as realisable. Such a use would be an abuse of process. The court applied the principle stated in Re McKinsley [2006] 1 WLR 3420, referring also to Gokal v Serious Fraud Office [2001] EWCA Civ 368.

3. The court followed R v Bailey [2007] EWCA Crim 2873. The approach governing an appeal against conviction following a guilty plea entered on erroneous advice does not generally apply to confiscation proceedings. A confiscation order is challenged as part of sentence. Permitting a defendant to escape a consent order on that basis would deprive the prosecution of the opportunity to contend for the higher figure which the compromise had avoided.

4. A consent-based confiscation order might conceivably be set aside in the most exceptional case where the entire process was unfair. Incorrect advice given while negotiating the best available compromise will not ordinarily suffice. On the facts, the advice was directed to avoiding a contested hearing in which the appellant’s credibility was weak and the risk of a higher order was substantial. There was no basis for finding that his will had been overborne or that the process was unfair.

5. The court added that, had intervention been justified, it had power on an appeal against sentence concerning a confiscation order to substitute a new order, as illustrated by R v Edwards [2006] EWCA Crim 2596. The appellant’s further application to challenge the agreed default term was raised too late. The bail issue was left for the judicial review proceedings.

• Court of Appeal (Criminal Division): Dismissed the appeal against the consent-based confiscation order: [2008] EWCA Crim 1463.
• Bolton Crown Court: Following guilty pleas, made a confiscation order on 13 September 2005 for £110,000 by agreement, with two years to pay and three years’ imprisonment in default.