Mills, R v

A term of imprisonment imposed for default in payment is a distinct penal enforcement order, rather than part of the confiscation order requiring payment. The prosecution’s right to appeal a confiscation order under the Proceeds of Crime Act 2002 does not therefore confer jurisdiction to challenge the separate default order.

The court also stated that a default term must not reflect the totality of the substantive sentence and the default term. The sentencing court must have regard to the statutory maxima for the applicable band and to proportionality.

The respondent had pleaded guilty to offences arising from sophisticated boiler-room frauds. In confiscation proceedings, the Crown Court found that he had a criminal lifestyle, assessed his benefit at £8,922,378, and made a confiscation order. The recoverable amount was later amended to £661,027.

The judge fixed an 18-month term of imprisonment in default of payment. The prosecution sought to appeal, contending that the statutory band required a substantially longer term. The central issue was whether the Court of Appeal had jurisdiction under the Proceeds of Crime Act 2002 to entertain a prosecution challenge to the default term.

1. Appeal dismissed. The court granted leave to apply, but held that it lacked jurisdiction to determine the prosecution’s challenge to the 18-month default term.
2. A confiscation order is an order requiring the defendant to pay the recoverable amount. The default regime is introduced through section 35 of the Proceeds of Crime Act 2002, which applies the fine-enforcement provisions in the Powers of Criminal Courts (Sentencing) Act 2000. It requires the court to fix a term of imprisonment for default.
3. The court followed the analysis in R v Gary Ellis [1992] 2 Cr App R (S) 403. A confiscation order and the order imposing imprisonment in default are two distinct orders. The latter is an enforcement order which is penal in character. Since the default order is distinct from the confiscation order, the prosecution appeal right in section 31(1) does not extend to it. Section 32(1) did not provide an alternative basis for varying it.
4. Although unnecessary to the jurisdictional disposition, the court held that the judge had erred in assessing the default term. Applying R v German Castillo [2012] 2 Cr App R (S) 36, the judge had wrongly taken account of the substantive sentence when fixing the default term. He had also wrongly treated the order as being at the bottom of the relevant scale, without proper regard to the statutory maxima for the applicable and neighbouring bands, and to proportionality.

• Court of Appeal (Criminal Division): The prosecution was granted leave to apply, but its appeal against the default term was dismissed for want of jurisdiction: [2018] EWCA Crim 944.
• Crown Court at Nottingham: A confiscation order was made on 23 May 2017, with an 18-month term in default. On 6 July 2017, the recoverable amount was amended to £661,027, but the judge declined to reconsider the default term.
• Crown Court at Nottingham: On 26 September 2013, the respondent pleaded guilty to conspiracy to defraud, conspiracy to convert criminal property, and concealing criminal property, and received concurrent seven-year sentences.