Melius, R v

A consensual confiscation order will not ordinarily be reopened on appeal merely because the defendant later alleges defective legal representation. Relief may arise where there was a mistake of law going to the court’s jurisdiction, or where a misapprehension arguably rendered the whole proceedings unfair. On the facts, neither condition was met. The Court of Appeal also confirmed that a loss-of-time order may be made for a further hopeless application, while giving effect to the principle of totality when fixing its length.

The applicant had been convicted of serious drug-importation offences and sentenced to 24 years’ imprisonment. In confiscation proceedings under the Proceeds of Crime Act 2002, the Crown Court made a consent order for £95,467, payable within three months, with two years’ imprisonment in default.

Out of time, the applicant sought leave to appeal against that order. He alleged procedural defects and contended that counsel had allowed him to consent despite knowing that the proceedings were out of time. His wife, an interested party claiming an interest in the matrimonial home, separately sought more time to appeal. The central issue was whether the consent order should be reopened despite the delay and alleged defects in representation.

1. The court refused both applications for extensions of time. It held that the proposed challenge was totally without merit and would also have failed on its merits if permission had been given to advance it despite the delay.
2. The applicant and his wife had consented to the confiscation order. The law on the significance of consent in an appeal against such an order was firmly established by R v Hirani [2008] EWCA Crim 1463, with the authorities recently analysed in R v Morfitt [2017] EWCA Crim 669. There was no mistake of law going to the Crown Court’s jurisdiction. Nor was there an arguable basis for saying that a misapprehension by the applicant had rendered the proceedings as a whole unfair.
3. The written consent confirmed that the applicant had been advised of the risk of a hidden-assets finding if the proceedings were contested. The agreed order, limited to a 50 per cent share in the matrimonial home, also protected him from the risk of a substantially larger order and a substantial default term.
4. The applicant’s reliance on the sentencing judge’s reluctance to make the agreed order was misconceived. The judge’s concern was that the agreement was too generous to the applicant and might undermine the basis of sentence, not that no confiscation order could lawfully be made.
5. A further loss-of-time order was appropriate because this was the applicant’s second wholly hopeless application arising from the case. Applying totality, the court ordered that 30 days should not count towards sentence, consecutive to the earlier 60-day order, making 90 days in all.

• Court of Appeal (Criminal Division): refused the applicant’s and interested party’s applications for extensions of time to seek leave to appeal against the consent confiscation order.
• Crown Court: made the consent confiscation order of £95,467 in proceedings under the Proceeds of Crime Act 2002. No citation for that order was stated.