Di Stephano, R. v

The jurisdiction of the criminal courts derives from Acts of the United Kingdom Parliament. The Extradition Act 2003 does not make the inclusion of prospective confiscation proceedings in a European arrest warrant a condition of jurisdiction. An omission concerning other consequences of the offence under article 8(1)(g) of the Framework Decision would not invalidate that jurisdiction.

A confiscation finding may properly stand where the offender had the opportunity to explain the destination of criminal proceeds but did not do so. A default term must remain proportionate in light of the available amount, the substantive sentence and all the circumstances.

The applicant had been extradited from Spain, convicted at the Crown Court at Southwark of dishonesty offences, and sentenced to 14 years’ imprisonment. In confiscation proceedings, the parties agreed that his benefit was £38.417 million. The Crown Court found an available amount of £1.429 million and €754,469, and imposed an eight-and-a-half-year default term.

He sought leave to appeal on three grounds: that the European arrest warrant did not give the Crown Court jurisdiction to make a confiscation order; that the available-amount finding conflicted with the sentencing remarks and evidence; and that the default term was excessive. The central issue was whether the first two grounds disclosed any error and whether the default term was proportionate.

1. The application succeeded only on the default sentence. Leave to appeal was refused on the jurisdiction and available-amount grounds. Leave was granted, and the appeal allowed, only to reduce the default term from eight and a half years to six years’ imprisonment.

2. The applicant’s extradition created no specialty issue. Each offence for which he was tried had either appeared in the original warrant or been covered by Spain’s consent. The court’s jurisdiction was derived from the Extradition Act 2003, not from an asserted requirement in the European arrest warrant to state a possible confiscation consequence. Section 142 contained no such requirement.

3. In any event, article 8(1)(g) of the Framework Decision (2002/584/JHA) of 13 June 2002 referred only, if possible, to other consequences of the offence. Even if directly applicable, an omission of this kind could not invalidate the jurisdiction of the English criminal courts. Any material defect in a warrant should have been raised at the surrender stage. The jurisdiction ground was wholly without merit.

4. The available-amount challenge also failed. The sentencing judge’s earlier observation that the money had been spent reflected the evidence then available. At confiscation, the applicant had detailed financial information and the opportunity to explain the destination of the funds, but did not do so. The Crown Court was entitled to find retained and hidden assets on its careful assessment of the evidence.

5. The default term was too high. Although substantial, the available amount was lower than in some cases. Taking the amount, the 14-year substantive sentence and all the circumstances together, six years was the appropriate period of imprisonment in default.

• Court of Appeal (Criminal Division) — in [2016] EWCA Crim 1032, refused leave on the jurisdiction and available-amount grounds, but granted leave and allowed the appeal against the default term.
• Crown Court at Southwark — convicted the applicant on 27 March 2013, imposed a total sentence of 14 years’ imprisonment on 28 March 2013, and later made a confiscation order with an eight-and-a-half-year default term.