Dines & Ors v Director of Public Prosecutions

For article 21(2) of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, whether a foreign procedure produces a conviction is determined by its substance, not its label. The inquiry is first whether the procedure is a conviction in the requesting state and then whether its nature and characteristics amount to a conviction under English law.

A conviction may rest on an implied and unequivocal admission of guilt where the accused does not contest the prosecution case, accepts punishment, and the foreign judge makes a substantive judicial appraisal of the facts and proposed penalty. The term must be construed in the international setting of mutual enforcement, which accommodates materially different criminal procedures.

The appellants had entered into patteggiamento procedures in Italian criminal proceedings concerning an alleged large-scale tax fraud. The Criminal Court in Rome imposed agreed custodial sentences and fines, and made contested confiscation orders. The Italian Cassation Court dismissed the appellants’ challenges to the confiscation orders.

The Director of Public Prosecutions sought registration and enforcement of those orders in England. The Southwark Crown Court registered them and refused the appellants’ applications to cancel registration. The appellants appealed, contending that a sentenza di patteggiamento was not a conviction for article 21(2) of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005.

The central issue was whether the Italian procedure amounted to a conviction under Italian law and, if so, for the distinct purpose of article 21(2) under English law.

1. The appeals were dismissed. The registrations of the three Italian confiscation orders stood. The appellants’ patteggiamento judgments were convictions under Italian law and for article 21(2) of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005.

2. The court identified two distinct inquiries. First, the procedure had to be a conviction in Italian law; otherwise it could not support registration. Secondly, the English court had to determine whether its nature and substance amounted to a conviction for article 21(2). The foreign state’s label was informative but not determinative.

3. Under the Italian Code of Criminal Procedure, a patteggiamento judgment was equivalent to a judgment of conviction unless otherwise provided. It involved an accused’s acceptance of punishment and an implicit, unequivocal admission of the facts supporting criminal responsibility. The Italian judge was not a rubber stamp: the judge had to exclude grounds for acquittal and appraise the legal characterisation, circumstances and adequacy of the requested penalty. Those features, reinforced by the judgment’s treatment as a conviction in Italian law, established a conviction in this case.

4. Article 21(2) had to operate internationally. It could not be confined to an express English-style guilty plea when foreign criminal systems might have no equivalent procedure. The combination of the appellants’ unchallenged acceptance of the prosecution case, their agreement to substantial custodial penalties, and the judge’s substantive appraisal was sufficient. Their subsequent assertion of innocence, or advice said to have been received about the procedure, could not alter that objective conclusion.

5. McGregor (1992) 95 Cr. App. R 240 was distinguishable. The Florida procedure there involved neither a guilty plea nor verdict, and expressly withheld adjudication of guilt. Deferred prosecution agreements were likewise not analogous. They involve no conviction, no custodial sentence and may lead to a later prosecution.

• Court of Appeal (Criminal Division) — dismissed the appellants’ appeals and confirmed that the confiscation-order registrations would stand: [2020] EWCA Crim 552.
• Southwark Crown Court — by a reserved ruling dated 24 July 2019, held that the conditions for registration were met; by orders dated 14 November 2019, registered the confiscation orders and dismissed the applications to cancel registration.