Price, R. v

A term of imprisonment in default of a confiscation order has a purpose distinct from the punitive sentence. It is intended to secure payment where the offender has realisable assets and can be avoided by payment. The totality principle does not require either term to be reduced because the combined contingent and punitive periods are lengthy.

A sentencing court may nevertheless reduce a custodial sentence where age and serious ill health make its effect substantially more severe. Questions of prison treatment and life expectancy remain primarily administrative, but they do not prevent the court from assessing the sentence’s impact.

The appellant was convicted at Snaresbrook Crown Court of attempting to import 693.9 kilograms of cocaine. He received 28 years’ imprisonment on the principal count.

In later confiscation proceedings, the judge found benefit of £2.34 million under the Drug Trafficking Act 1994. He ordered payment within 15 months and imposed 10 years’ imprisonment in default, consecutive to the substantive sentence.

The appellant challenged the interaction between the two terms, the length of the substantive sentence in light of his multiple sclerosis, the finding as to realisable assets, and the alleged appearance of bias arising from a post-trial dinner attended by the judge and counsel.

1. Appeal allowed in part. The court quashed the 28-year sentence on the first count and substituted 25 years’ imprisonment. It dismissed the challenge to the confiscation order and the application founded on apparent bias.
2. A default term following a confiscation order is not further punishment for the underlying offence. Its purpose is to secure compliance and to ensure that an offender with sufficient realisable assets gains no advantage by refusing to pay. Once the court has found that assets are available, service of the default term depends on the offender’s own choice. The totality principle therefore does not require the substantive and default terms to be aggregated or either reduced. R v Cukovic [1996] 1 Cr App R(S) 131 was wrong on that point; the approach in R v Smith [2009] EWCA Crim 344 was correct. The 10-year default term remained appropriate.
3. Although prison authorities principally address treatment, deterioration and life-expectancy issues, the sentencing court must assess how serious ill health affects the severity of custody. The appellant’s multiple sclerosis, reduced mobility and reduced life expectancy made the 28-year term more severe than it would be for a prisoner in good health. The offence and criminal history otherwise justified the original term, but a three-year reduction was warranted.
4. The confiscation challenge failed. The judge was entitled to conclude that the appellant had not discharged the statutory burden of showing that his realisable assets were below the benefit figure. His use of false identities, evidence of concealed or beneficially owned assets, and lack of reliable disclosure justified that conclusion. It was also open to attribute the expenditure on the drugs wholly to him despite the involvement of others, consistently with R v May [2008] UKHL 28.
5. The post-trial dinner did not give rise to a real possibility of bias. A fair-minded and informed observer would know that both defence counsel attended and would protect their client’s interests. The practice did not undermine the fairness of the later confiscation proceedings.

• Court of Appeal (Criminal Division): Allowed the sentence appeal to a limited extent, substituting 25 years for 28 years on the principal count: [2009] EWCA Crim 2918. It dismissed the confiscation challenge and the application alleging apparent bias.
• Snaresbrook Crown Court: Following conviction on 13 July 2005, imposed 28 years’ imprisonment on the principal count on 15 July 2005. On 20 March 2007, made a confiscation order for £2.34 million under the Drug Trafficking Act 1994, with 10 years’ imprisonment in default.