Jason Butler v R

An appeal against a confiscation order made by consent will succeed only in a wholly exceptional case. The expression “most exceptional circumstances” is not a statutory test. The central question is whether it is unfair or unjust to hold the appellant to the consent, having regard to the whole process.

Where the complaint is erroneous or incompetent advice, the appellant must show that competent representation and proper scrutiny could have produced a better outcome. No injustice arises where the appellant knowingly advanced unsustainable asset values to secure a negotiated order and a contested hearing would probably have resulted in a substantially higher confiscation order.

Jason Butler v R concerned an appeal against a consent confiscation order made in the Crown Court at Leeds under the Proceeds of Crime Act 2002. The order required payment of £1,112,670.24 and was based on a negotiated benefit figure and available amount.

The appellant later established that the value attributed to a property portfolio was overstated and that a company connected with a debt included in the calculation had been struck off before the order. He contended that he had consented while imprisoned, with restricted access to documents and on incorrect advice that the order could later be varied. A separate judicial-review challenge to enforcement of the default term had been dismissed: [2023] EWHC 3420 (Admin).

The issue was whether the admitted errors made it unfair or unjust to hold the appellant to the consent order.

1. Appeal dismissed. The court held that an appeal against a confiscation order made by consent remains wholly exceptional, but the governing inquiry is fairness and justice rather than a rigid statutory threshold. Regina v Hirani [2008] EWCA Crim 1463 was binding. The subsequent authorities showed that an appellant relying on deficient advice must demonstrate that competent representation would have produced a better result.

2. The court accepted that the property figure was overstated and that Nudge Limited had ceased to exist before the order. It also proceeded, without deciding the point, on the agreed basis that the appellant could not use section 23 of the Proceeds of Crime Act 2002 to vary the order on those facts.

3. Those errors did not make the consent unfair. The appellant had discussed the schedule of assets with his lawyers before it was sent to the prosecution. His earlier disclosure showed that he knew the property portfolio had substantially reduced and that its value was doubtful. The court rejected his evidence that the figure advanced for the portfolio bore no relation to information available to him.

4. The appellant also failed to give an acceptable explanation for the supposedly recoverable debt and the disappearance of the company through which it had been held. He had a substantial litigation risk that he would fail to prove an available amount below the benefit figure because of the unexplained movement of fraud proceeds through offshore companies and accounts.

5. He had therefore obtained a material advantage by consenting to a lower negotiated order based on values which would not have survived proper scrutiny. A contested hearing would probably have produced an order for the full benefit figure, with a higher default term. It was neither unfair nor unjust to hold him to the order.

• Court of Appeal (Criminal Division): Dismissed the appeal against the consent confiscation order.
• High Court (Administrative Court): Dismissed a separate judicial-review challenge to the magistrates’ decision activating the default term: [2023] EWHC 3420 (Admin).
• Leeds District Magistrates’ Court: On 22 November 2022, activated the default prison term following non-payment of the confiscation order.
• Crown Court at Leeds: On 26 April 2021, made by consent a confiscation order under the Proceeds of Crime Act 2002 requiring payment of £1,112,670.24.