Perkes & Anor v R

An agreed confiscation order said to have resulted from incorrect legal advice will be set aside only in most exceptional circumstances. The applicant must make a well-founded case that the process as a whole was unfair.

Where criminal-lifestyle assumptions apply, an applicant must rebut them with sufficiently specific and reliable evidence. General assertions, uncorroborated schedules and evidence inconsistent with earlier accounts will not ordinarily suffice. A possible inconsistency between the prosecution case and a basis of plea does not itself establish procedural unfairness in confiscation proceedings.

The applicants, fish merchants, pleaded guilty at Newcastle Crown Court to five offences of failing to submit fish sales notes and landing declarations. They received fines and agreed confiscation orders after the judge encouraged a negotiated figure substantially below the prosecution’s original claim.

They sought leave to appeal the confiscation orders. They contended that inadequate legal advice had left them unable to meet the evidential burden arising from the criminal-lifestyle assumptions. They also relied on an alleged inconsistency between the prosecution’s confiscation case and their bases of plea. The central issue was whether those matters made the agreed orders and the process leading to them unfair.

1. The court refused leave to appeal against the agreed confiscation orders. Applying the guidance in Hirani [2008] EWCA 1463, an order made by consent on allegedly incorrect legal advice should be reopened only in the most exceptional circumstances. The applicant must show, on a well-founded basis, that the whole process was unfair.

2. Even assuming that the applicants had an arguable complaint about the advice received, the proposed additional evidence could not show unfairness. The applicants accepted that the criminal-lifestyle assumptions applied. They therefore bore the evidential burden of showing that the purchases were legitimate, including by identifying sellers and producing evidence that the fish fell within an exemption or was not quota fish.

3. The affidavit and schedule did not discharge that burden. They gave no supporting evidence from the alleged sellers, often failed to identify them, and in places conflicted with the applicants’ earlier evidence or interviews. The applicants also knew before the confiscation hearing that the identity of sellers and the status of the fish were central issues. Vague generalisations could not displace the statutory assumptions.

4. The negotiated outcome did not make the process unfair. It followed the judge’s concern that the prosecution’s full claim might destroy the business, and produced an agreed total of little more than one third of that claim.

5. The court was not satisfied that the prosecution had become bound in confiscation proceedings by failing to contradict the bases of plea. In any event, even if it had been so bound, that would not have made the proceedings unfair.

• Court of Appeal (Criminal Division): Leave to appeal against the agreed confiscation orders was refused.
• Crown Court at Newcastle: The applicants pleaded guilty to five offences concerning fish sales notes and landing declarations. Judge Wood imposed fines of £400 on each count and made confiscation orders of £188,195 and £150,000.