Yaxley-Lennon, R v

An appellate court will be slow to permit a very late challenge to an agreed confiscation benefit figure. An agreement made by properly instructed and experienced counsel is not invariably conclusive, but it is an important consideration. A lengthy extension of time ordinarily requires a good reason, especially where the applicant seeks to advance a wholly new ground inconsistent with the agreed position below.

Whether refusal causes substantial injustice depends on all the circumstances. It is not determined solely by the monetary difference between the agreed figure and a later proposed calculation.

The applicant pleaded guilty at the Crown Court at St Albans to two conspiracies to commit fraud by misrepresentation involving fraudulent mortgages over one property. In confiscation proceedings, counsel agreed benefit of £125,000 and realisable assets of £116,985. The Crown Court made a confiscation order for the agreed available amount, which was paid.

A single judge refused leave to appeal. More than two years later, the applicant, represented by fresh counsel, sought an extension of time to renew the application and to challenge the agreed benefit figure. The proposed calculation, based on the net proceeds after repayment of the secured lenders, would have reduced the benefit substantially. The central issue was whether the late challenge should be permitted.

1. The court refused the extension of time and the renewed application. Although it was prepared to assume for present purposes that the revised method of calculating benefit was legally correct, that did not justify reopening the confiscation order.

2. The delay was very substantial and unexplained. There had been no intervening change in law or facts. The benefit and realisable-assets figures had been expressly agreed by experienced and properly instructed counsel after detailed submissions. Such an agreement was not necessarily conclusive, but the court would not readily depart from it.

3. The earlier argument had already addressed, in substance, the fact that both mortgage lenders had been repaid. It had relied on proportionality considerations arising from R v Waya [2013] 1 AC 294. The revised argument was therefore not a newly emerging injustice, but a different legal formulation of an issue that had been considered below.

4. Substantial injustice had to be assessed in the round. A possible reduction of about £30,000 was significant, but the applicant was in any event liable to a substantial confiscation sum. There was also a potential further benefit from rental income from the fraudulently acquired property. These circumstances reinforced the conclusion that refusal to reopen the order caused no substantial injustice.

5. The court granted permission for the decision to be cited as an illustration of the reluctance to disturb express agreements on confiscation benefit or realisable assets, particularly where the challenge is brought out of time.

• Court of Appeal (Criminal Division): Refused the applicant's extension of time and renewed application in [2018] EWCA Crim 244.
• Court of Appeal (single judge): Cooke J refused leave to appeal on the papers on 21 April 2015.
• Crown Court at St Albans: Made a confiscation order of £116,985 after counsel agreed benefit of £125,000 and available assets of £116,985.