McCarry, R v

A sentencing basis of plea does not preclude a confiscation inquiry into earlier property unless the Crown has expressly accepted facts which are inconsistent with applying the statutory assumptions. Acceptance of a defendant’s account because it cannot be disputed for sentencing is not an acknowledgment that the defendant had no earlier relevant criminal conduct.

A relevant conviction permits inquiry into property passing through the defendant’s hands during the preceding six years. The inquiry is not confined to the proceeds of the offence charged. Applying those assumptions will not create a serious risk of injustice merely because the basis of plea concerns a later and limited period.

The applicant pleaded guilty at Maidstone Crown Court to possessing cocaine with intent to supply. He was sentenced on a basis of plea that he supplied drugs only within his social circle.

The sentencing judge left the issue of cash found following the arrest for later determination. At the subsequent confiscation hearing, the applicant argued that the accepted basis of plea prevented any confiscation order. The Crown had not expressly accepted that the offence was his first involvement in drug trafficking.

Judge MacDonald QC rejected that submission, applied the statutory assumptions to the preceding six years, and made a confiscation order of about £33,500. The applicant challenged that ruling.

1. The application was refused. Judge MacDonald QC had correctly held that the basis of plea did not prevent a confiscation inquiry or the application of the statutory assumptions.

2. The Crown’s acceptance of the basis of plea was confined to sentencing. It reflected that the primary facts capable of proof were consistent both with commercial dealing and with the applicant’s account. It was not an express concession that his account was true or that he had no earlier involvement in relevant crime.

3. The court distinguished Lunnon [2004] EWCA Crim 1125. In that case the Crown had expressly accepted that the defendant had no previous involvement in drug trafficking. Such an acknowledgment could carry into confiscation proceedings, because contrary assumptions could cause serious injustice. No comparable acknowledgment was made here.

4. The court followed Lazarus [2004] EWCA Crim 2297. A relevant conviction opens an inquiry into property passing through the defendant’s hands during the previous six years; it is not limited to the proceeds of the charged offence. The basis of plea was silent about that earlier period.

5. Mark Green [2007] EWCA Crim 1248 confirmed the same approach. Applying the assumptions to property before the period addressed in the basis of plea was neither inconsistent with that basis nor productive of serious injustice. The confiscation order therefore stood.

• Court of Appeal (Criminal Division): The application was refused in [2008] EWCA Crim 1587.

• Crown Court at Maidstone: The applicant pleaded guilty and received a community order on 10 October 2006. On 20 June 2007, Judge MacDonald QC rejected the submission that the basis of plea barred confiscation and made the confiscation order.