R v Morfitt

Court of Appeal (Criminal Division), [2017] EWCA Crim 669, Lindblom LJ, Carr J and HHJ Kinch QC, 7 April; 25 May 2017

Confiscation - Criminal procedure - Benefit figure - Consent - Legal advice

Following conviction for possession of drugs with intent to supply, the offender faced confiscation proceedings. The prosecution asserted that the offender had a criminal lifestyle and calculated a benefit figure using the assumptions created by section 10 of the Proceeds of Crime Act 2002. The sum alleged to be the benefit by the prosecution and pleaded in the prosecution statement served pursuant to section 16(3) was £442,800. This was based on a calculation of money that could have been earned from dealing in drugs over the six years prior to conviction, lowered to allow for the business to grow from nothing. The offender challenged both the benefit figure and the realisable amount. However, upon advice from counsel, the offender agreed a sum of £250,000. The judge was presented with a consent order for the confiscation order, subject only to an argument on one aspect of the realisable amount. On appeal the offender alleged that he had been given the wrong advice to agree to the benefit figure. It was argued that the order could not have been made because the benefit figure was based on a legal error. The Court of Appeal were therefore asked to determine: (1) whether the prosecutionÂ’s approach to making the section 10 assumptions had been wrong in law; (2) if so, whether the fact that the offender had consented to the confiscation order should prevent the order being set aside; and if it did not; and (3) whether the Court of Appeal should substitute a new order or remit the case for re-hearing.