Kirman, R. v

A consent confiscation order will not ordinarily be set aside merely because a party received erroneous legal advice when agreeing it. Intervention is confined to exceptional circumstances in which the whole process was unfair.

In confiscation proceedings under the Proceeds of Crime Act 2002, the acceptance of a basis of plea for sentencing does not necessarily prevent the Crown or court from addressing the defendant’s true benefit. The differing standard of proof and statutory assumptions matter. However, an unqualified acceptance of the basis of plea may create a serious risk of injustice if the Crown later seeks to depart from it. A mere custodian of drugs, rewarded by a fee and without a proprietary interest, will generally not have obtained their full value.

The appellant pleaded guilty to possessing cannabis resin on a basis that he had been minding it for another person. At Liverpool Crown Court, a confiscation order of £84,901.50 was made by consent. It included the full value of the cannabis resin and £10,500 of other assets.

He appealed against the order. He contended that the agreement rested on a legal error concerning the benefit of a minder. Further enquiries subsequently established that the drugs had been supplied to him by another dealer, against whom their full value was included in a later confiscation order. That information had not been disclosed to the defence or the sentencing court because of an ongoing investigation.

The central issue was whether those circumstances justified setting aside or varying a consent confiscation order.

1. Appeal allowed. The court varied the confiscation order from £84,901.50 to £10,500, removing the value attributed to the cannabis resin. It imposed 12 months’ imprisonment in default, with payment due within 28 days.

2. The acceptance of a basis of plea for sentencing does not itself preclude its reconsideration in confiscation proceedings. The Crown need prove relevant matters only to the civil standard, and in a criminal-lifestyle case the statutory assumptions place an evidential burden on the defendant. The Crown should nevertheless make clear whether it accepts the asserted involvement for all purposes. An unqualified acceptance may make a later attempt to depart from it unjust.

3. The court approved the approach in R v Hirani [2008] EWCA 1463. A consent confiscation order will not normally be reopened because advice given in negotiating it was wrong. The court may intervene only in the most exceptional circumstances, where there is a well-founded case that the whole process was unfair. A defendant may have valid reasons to agree a confiscation amount that differs from the sentencing basis of plea.

4. The court accepted that counsel’s view of the law was wrong. A person who merely stores drugs for reward, without a proprietary interest or relevant control, will generally not obtain their full value for confiscation purposes. The statutory assumption that the person incurred expenditure in acquiring the drugs may be rebutted where the evidence shows that he was a minder for reward.

5. Here, the decisive exceptional circumstance was not simply erroneous advice. Material facts identifying the dealer and confirming the appellant’s role were unavailable to the defence and the court. Those facts might have led to a different agreement or order. The court made no finding that the police had acted improperly, but held that the consequences of the non-disclosure made the process sufficiently unfair to justify intervention.

• Court of Appeal (Criminal Division): Allowed the appeal and varied the consent confiscation order to £10,500.
• Liverpool Crown Court: HH Judge Roddy made a consent confiscation order of £84,901.50 on 17 October 2005.