R v Miroslav Pesko

Fresh evidence on a criminal appeal is admitted only where it is necessary or expedient in the interests of justice, having regard to the statutory factors, including any reasonable explanation for its earlier omission.

Imprisonment in default of a confiscation order secures payment rather than imposing additional punishment. The offender’s personal circumstances therefore have limited relevance. A genuine post-order difficulty in realising assets should be addressed by an application for a certificate of inadequacy, not by reopening the confiscation decision on appeal.

The applicant sought renewed leave to appeal against a confiscation order of £211,259.50 made by the Crown Court at Norwich on 28 April 2022. He had been convicted of conspiracy to steal vehicles and sentenced to five years and four months’ imprisonment; a renewed sentence appeal was refused on 7 May 2021, [2021] EWCA Crim 747.

The proposed appeal alleged inadequate legal representation concerning invoices and hidden assets, an excessive two-year imprisonment term in default, and inability to access funds in Russia because of sanctions. The central issues were whether fresh evidence should be admitted, whether the default term was disproportionate, and whether the alleged difficulty in realising assets could reduce the order.

The court refused the renewed application for leave to appeal.

1. Fresh evidence. Material not before the confiscation judge was fresh evidence. Under section 23 of the Criminal Appeal Act 1968, the court would receive it only if necessary or expedient in the interests of justice, having regard to the statutory factors, including whether there was a reasonable explanation for the failure to adduce it earlier. The additional invoices existed before the confiscation hearing and were known to the applicant, who had ample opportunity to provide and explain them. The material therefore did not satisfy the statutory requirement. The haphazard and late presentation of documents was largely the applicant’s responsibility, and any minor errors would not have materially affected the result. The hearing was neither unfair nor unsafe.
2. Imprisonment in default. The purpose of imprisonment in default was to secure payment of the confiscation order, not to impose additional punishment. The court was therefore not required to consider the offender’s personal circumstances as it would when passing sentence for the criminal offences. A pre-sentence report was neither required nor appropriate. For an order between £10,000 and £500,000, the statutory maximum was five years. A two-year term for an order of £211,259.50 was just and proportionate.
3. Assets in Russia. If a genuine change of circumstances after the order caused difficulty in realising assets, the appropriate remedy was an application to the Crown Court under section 23 of the Proceeds of Crime Act 2002 for a certificate of inadequacy. The Court of Appeal had no jurisdiction to grant that remedy, and such an application could not be used to challenge the confiscation judge’s finding that the applicant had hidden assets. In any event, the sanctions argument was further fresh evidence which had not been before the judge and was known to the applicant at the time.

• Court of Appeal (Criminal Division) — renewed application for leave to appeal against the confiscation order refused, [2023] EWCA Crim 1568.
• Court of Appeal (Criminal Division) — renewed application for leave to appeal against sentence refused on 7 May 2021, [2021] EWCA Crim 747.
• Crown Court at Norwich — confiscation order of £211,259.50 made on 28 April 2022.