Confiscation and Bases of Plea

May 13, 2020

By Chloe Fordham

Where the Crown has made a concession that a defendant had no previous involvement in drug trafficking there would be an apparent injustice if it were ignored when it came to confiscation. A fully reasoned explanation was required if the court concluded that the statutory assumptions should still apply. 

Frustratingly, the Crown will often proceed with confiscation proceedings regardless of the basis of plea upon which a defendant has been sentenced. Difficult though it may be to express to the average lay-client, there is a logic to this approach. When it comes to confiscation, the statutory assumptions which apply to lifestyle offences and the reverse burden of proof mean that there is not the incentive for the Crown to make concessions that there is in the core criminal proceedings.

There can be only sympathy for the baffled lay client in such cases who, despite admitting to playing only a bit-part, is then painted in the confiscation proceedings as a major villain with a career stretching back for years who has benefited to the tune of many thousands of pounds.

However, as I recently discovered, some help is on hand to those seeking to persuade the Crown to take a reasonable approach to confiscation proceedings where the extent of a defendant’s involvement, insofar as sentence is concerned, has been limited. My client had pleaded to supplying class A drugs on the basis that she had performed the role of simply receiving from her co-defendant a parcel containing drugs on a single occasion for no financial gain and then returning that parcel to the same co-defendant. Those drugs were then seized by the police. The Crown initiated confiscation proceedings and sought, in their section 16 statement, to apply the lifestyle assumptions. Ultimately, following reference to some helpful case law, the Crown were persuaded to discontinue the confiscation proceedings (although it is right to say that they did not concede that they would not have been entitled to proceed to confiscation despite her limited basis of plea).

R v Lunnon

The principle authority of use in this scenario is R v Lunnon [2005] 1 Cr App R (S) 24. In that case the defendant had pleaded guilty on a basis and the Crown, in accepting that basis had conceded that that he had had no previous involvement in drug dealing prior to the instant offence. Nevertheless, the Crown proceeded with confiscation proceedings and asked the judge to apply the assumptions under section 10 of the Act, which are to be applied where a defendant has been convicted of a ‘lifestyle’ offence (unless the court decides that the assumptions have been shown to be incorrect or that it would be unjust to apply them) . The judge did so and made a confiscation order on that basis, giving no reasons why he decided to apply the assumptions despite the concession made by the Crown in accepting the basis of plea.

The Crown contended at the appeal in Lunnon that, whatever the Crown’s concessions prior to sentence, it would always be open to a defendant to prove on the balance of probabilities that he had no previous involvement in drug trafficking. The Court of Appeal’s frank answer to this was, “Why should he, where the Crown has explicitly conceded this to be the position?”.

The Court of Appeal held in Lunnon that whilst the basis of plea and concession made by the Crown was not in principle a complete bar to the Crown proceeding on the basis that the defendant had a criminal lifestyle, nor to the Judge applying the assumptions, it would have been necessary for the Crown and the judge to justify the decision to apply the assumptions and to state why it was not unjust to do so. In the circumstances, the confiscation order was quashed.

Section 10 (7) of the Act requires a judge to give reasons only where it is decided not to apply the lifestyle assumptions because they have been shown to be incorrect or where there is a risk of injustice. There is no requirement in the Act for reasons to be given for a decision to apply the assumptions.

Thus in Lennon, the Court of Appeal in effect added a requirement that the Crown and the Court must justify a decision to apply the assumptions where, prima facie, those assumptions would appear contrary to a positive assertion or agreement made by the Crown at an earlier stage of the proceedings.

After all, the Crown and the Court must remain mindful of the well-established principles of confiscation law – that the reverse burden is consistent with a defendant’s Article 8 rights only because of the safeguards which are in place. In POCA, those safeguards are derived from section 10(6)(b) which requires the Court not to apply the assumptions if there would be a risk of injustice. Indeed, the Court must not make any order at all if there is or might be a serious or real risk of injustice (R v Benjafield [2002] UKHL 2).

However, be warned, this is not a get out of jail free card for those who have pleaded on a basis and who then seek to rely upon it for the purposes of confiscation.

R v Lazarus

In the case of Lazarus [2004] EWCA Crim 2297 the Court of Appeal reminded us (if we needed reminding) that the confiscation regime is subject to different rules from those which govern the generality of criminal proceedings. There is of course no requirement for the Crown to be able to prove to the criminal standard that which it alleges in a section 16 statement and it would frequently be the case that offending which fell a long way short of being proved to the criminal standard fell to be considered when it came to confiscation.

The Defendant’s basis of plea in Lazarus limited his participation in the conspiracy on the indictment to a period of six months prior to his arrest. At appeal he sought to argue that, as a result of that basis of plea, it was unjust for the assumptions to be applied which assumed him to have benefited from a criminal lifestyle for the past six years.

The Court held that (unlike the position in Lennon) the Crown in Lazarus had not made a positive concession that the appellant had not been involved in the supply of drugs prior to the six months referred to in the basis of plea. The basis of plea was entirely silent on the period prior to those six months and all the Crown had done by accepting that basis was to concede that they could not prove to the requisite standard that the appellant had been involved in the conspiracy prior to that date.

Lessons to be Learned

From a prosecution point of view, this should sound a warning bell to those advising the CPS on the acceptability of a basis of plea. The impact of any such basis should be considered in the round and not just in the context of bearing upon sentence.

For defence solicitors and counsel, it seems that careful drafting of a basis of plea may make all the difference when it comes to confiscation. Positive agreements as to the absence of criminality in the period preceding an offence or as to the absence of any financial gain may allow a defendant to persuade the Crown that it would be unjust to proceed with confiscation proceedings which are based on the lifestyle assumptions. Where the Crown are not dissuaded from that approach then the judge should be reminded that, if a confiscation order is made on the basis of the assumptions being applied, full reasons will be required justifying why it was not considered unjust to apply those assumptions in the face of a basis of plea to the contrary. Judges (most of whom are no fans of confiscation proceedings) are used to a situation where applying the assumptions is the easier option – the legislation requires no justification of such a decision. However, drawing to a judge’s attention that full reasons will be required where applying the assumptions flies in the face of an agreed basis of plea might just achieve the desired outcome!