Ayankoya, R v

An agreed confiscation order is binding on a defendant unless exceptional circumstances justify intervention. An allegation of erroneous advice will not ordinarily suffice. The decisive question is whether there is a well-founded basis for concluding that the whole process was unfair.

A defendant may meet that high threshold where, before consenting, he was materially misled that an available adjournment to obtain relevant evidence had already been refused. The appellate court may then quash the consent order and substitute a properly agreed figure.

The appellant and two co-defendants pleaded guilty to conspiracy to defraud after making fraudulent Working Family Tax Credit claims using stolen identities. The Southwark Crown Court made an agreed confiscation order against the appellant for £88,000 under the Criminal Justice Act 1988.

More than two years out of time, the appellant contended that he had been prevented from obtaining bank statements and from having a full confiscation hearing. The Court of Appeal granted an extension of time and leave after concerns arose about the advice and representation at the confiscation hearing.

Fresh material established an agreed inference that the appellant had been wrongly told that the judge had already refused an adjournment, leaving him to choose between giving unsupported evidence that day and consenting to the order. The central issue was whether this amounted to exceptional circumstances permitting departure from an agreed confiscation order.

1. Appeal allowed in part. The court quashed the agreed confiscation order of £88,000 and substituted an order for £82,297.53, the revised figure agreed by the parties.

2. The court applied Hirani [2008] EWCA Crim 1463. A defendant who agrees the amount of a confiscation order is normally bound by that agreement. Relief is available only in exceptional circumstances, requiring a well-founded submission that the whole process was unfair. The court also noted that this approach had been specifically approved in Kirman [2010] EWCA 614.

3. The exceptional threshold was met. Before the appellant agreed to the order, he was informed in error that the trial judge had already ruled out any further adjournment to obtain bank statements. In fact, the judge had made no such ruling. That misinformation was potentially fundamental because it falsely removed an available procedural option and presented the appellant with a materially different choice.

4. The subsequently available bank material also showed substance in part of the appellant’s earlier position, including that the mortgage was £20,000 rather than the £24,000 then advanced by the prosecution. The revised figure appropriately allowed for the demonstrated mortgage and Council Tax matters, but not for unsubstantiated claims concerning the Lexus car and other issues.

• Court of Appeal (Criminal Division)—allowed the appeal in part and replaced the £88,000 confiscation order with an order for £82,297.53 in [2011] EWCA Crim 1488.

• Court of Appeal (Criminal Division)—on 1 September 2010, a differently constituted Full Court extended time and granted leave to appeal against the confiscation order.

• Southwark Crown Court—on 26 January 2007, made the agreed confiscation order for £88,000 under the Criminal Justice Act 1988.