R v David Charles Stevens

In confiscation proceedings, an agreed available amount is not immune from appellate correction where a material error, honestly shared by the parties and caused by reliable but misleading third-party information, makes it conspicuously unfair to hold the defendant to the agreement. Pension rights may be free property under the Proceeds of Crime Act 2002, but their value is the market value of the defendant’s interest when the confiscation order is made. A right with no capital, surrender, transfer or sale value must be valued at nil, even if it provides future income. The confiscation and any corresponding compensation order must be reduced accordingly. Interest attaching under the Act falls away for the eliminated amount. A default term must be reconsidered under the statutory scale and other relevant sentencing considerations.

The appellant pleaded guilty to fraud-related offences arising from an 11-year Ponzi fraud and was sentenced to five years and nine months’ imprisonment. On 24 February 2022, the Crown Court at Southwark made an agreed confiscation order, assessing the available amount at £183,673.22, including £98,246.98 attributed to a Commonwealth Bank of Australia defined-benefit pension.

The pension trustees later confirmed that the pension was already in payment, had no capital or transfer value, and could only be applied through monthly payments. The Crown notified the appellant and supported a late appeal. The central issues were whether time should be extended, whether the appellant could resile from the agreed valuation, how the pension should be valued, and what consequential changes were required to the compensation order and default sentence.

The court admitted the financial investigator’s witness statement and exhibits under sections 23 and 23(2) of the Criminal Appeal Act 1968. Despite the 1,084-day delay, the Crown had prompted the application, the delay caused no material prejudice, and the evidence satisfied the statutory criteria.

1. An agreed confiscation order is not immune from appeal. There is a strong public interest in holding defendants to agreements made with legal advice, and an appeal will ordinarily succeed only in exceptional circumstances. Here, however, the parties and the Crown Court had proceeded on an honest but materially false representation based on misleading information from the pension administrator. The error disadvantaged the appellant, and it would be conspicuously unfair to hold him to the agreement.
2. Under the Proceeds of Crime Act 2002, pension rights may constitute free property where the defendant has an interest in them. The inclusion of the CBA pension in the schedule was therefore correct in principle.
3. The value of property is its market value at the relevant time. The pension had no capital, surrender, transfer or sale value and could not be converted into an immediate benefit. Its market value at the date of the order was therefore nil, notwithstanding its future income stream.
4. The confiscation order was quashed and replaced with a recoverable amount of £85,426.24. The compensation order was reduced correspondingly. Since the corrected order eliminated the obligation to pay the amount attributed to the pension, any interest liability relating to that amount was extinguished.
5. The default sentence had to be reconsidered under the statutory regime. Having regard to the statutory scale and the other relevant sentencing considerations, the 21-month term was quashed and replaced by 12 months’ imprisonment.

1. Court of Appeal (Criminal Division): in [2025] EWCA Crim 1123, time was extended, leave to appeal was granted, and the appeal was allowed to the extent indicated.
2. Crown Court at Southwark: made the agreed confiscation and compensation orders on 24 February 2022.