Morfitt, R v

A represented defendant who unequivocally agrees the factual basis and figures for a confiscation order will ordinarily be bound by that agreement. An appellate court will set aside such an order only in exceptional circumstances, requiring a well-founded case that the whole process was unfair.

Consent cannot confer jurisdiction. However, an unequivocal and legally sustainable acceptance of facts capable of establishing benefit may itself provide evidence on which the court can act without further investigation. This differs from consent founded on a fundamental mistake of law. Under Proceeds of Crime Act 2002 section 10, the prosecution must first establish the property or expenditure to which the statutory assumptions are to apply.

The appellant was convicted at Peterborough Crown Court of possessing cocaine with intent to supply and of three simple drug-possession offences. The Crown Court later made a confiscation order for £49,663.19, based on an agreed benefit figure of £250,000 and an agreed available amount, subject to a deduction for legal-aid contribution.

On appeal, the appellant contended that the prosecution had unlawfully constructed a historic drug-dealing benefit figure by using the assumptions in section 10 of the Proceeds of Crime Act 2002 without first proving relevant property or expenditure. He further submitted that his consent did not preclude an appeal because it had been given on an incorrect legal basis.

The central issue was whether an agreed confiscation order should be quashed where the underlying prosecution case might have been open to legal and evidential challenge.

1. Appeal dismissed. The court held that the appellant’s challenge to the prosecution’s proposed calculation was academic. The confiscation proceedings had not been contested. No evidence was called or tested because, with legal advice, the appellant agreed that his benefit should be recorded as £250,000. He could have required the prosecution to prove the property or expenditure on which it relied, but chose not to do so.

2. Where criminal lifestyle is established, the assumptions in section 10 of the Proceeds of Crime Act 2002 are mandatory. The prosecution must nevertheless first establish the existence of the relevant property or expenditure. The court accepted that the section 16(3) statement might not, if tested, have justified either the asserted figure of £442,800 or the agreed figure of £250,000. It did not decide that issue because the appellant had consented to the order.

3. Applying R. v Hirani [2008] EWCA Crim 1463 and subsequent authorities, the court held that an agreed confiscation order should be reopened only in the most exceptional circumstances. There must be a well-founded submission that the whole process was unfair. No such unfairness existed here. The appellant had been able to contest the Crown’s case and give evidence, but had instead negotiated and accepted the agreement.

4. The court distinguished R. v Mackle (Nos. 1, 2 and 3) and R. v McLaughlin [2014] UKSC 5. Consent cannot give a court jurisdiction to make a confiscation order. But an unequivocal acceptance of facts capable in law of establishing benefit is evidence on which a judge may rely. Unlike that case, there was no fundamental mistake of law and the Crown Court had jurisdiction to make an order.

5. Had the order been quashed, the court would have directed the Crown Court to proceed afresh under section 11(3A) of the Criminal Appeal Act 1968, with directions preventing a more severe confiscation order.

• Court of Appeal (Criminal Division): dismissed the appeal against the confiscation order: [2017] EWCA Crim 669.

• Peterborough Crown Court: following convictions for drug offences, made a confiscation order of £49,663.19 on 27 October 2014, based on agreed benefit and available-amount figures.