R v Emmett
| Jurisdiction | UK Non-devolved |
| Judge | LORD GOFF OF CHIEVELEY,LORD SLYNN OF HADLEY,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD CLYDE |
| Judgment Date | 13 November 1997 |
| Judgment citation (vLex) | [1997] UKHL J1113-4 |
| Date | 13 November 1997 |
| Court | House of Lords |
and Another
(On Appeal from the Court of Appeal (Criminal Division))
[1997] UKHL J1113-4
Lord Goff of Chieveley
Lord Slynn of Hadley
Lord Nicholls of Birkenhead
Lord Steyn
Lord Clyde
HOUSE OF LORDS
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Steyn. For the reasons he gives I would allow this appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. For the reasons he gives, with which I agree, I would allow this appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. For the reasons he gives, with which I agree, I would allow this appeal.
My Lords,
The drugs enterprise
On 7 November 1993, after months of preparations in England and Spain, a group of men started to unload a cargo of 4 metric tonnes of cannabis resin at Bideford Quay. Customs and Excise officers arrested the men as well as others engaged in the enterprise. The respondents in the present appeals, Brian Emmett and Michael Emmett, were two of the four principal organisers of the enterprise. The other two, who are not before the House, were Bracken and Lemonnier. The street value of the cannabis was some £13 million. The outlay for the whole operation was probably of the order of £3 million.
The proceedings in the Crown Court
On 25 October 1994 in the Crown Court at Exeter a number of accused including Brian Emmett and Michael Emmett pleaded guilty to the offence of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug contrary to section 170(2) of the Customs and Excise Management Act 1979. The Drug Trafficking Offences Act 1986 was applicable. (Subsequently the 1986 Act was substantially repealed and replaced by the Drug Trafficking Act 1994.) The trial judge had first to consider whether the accused had benefited from drug trafficking and, if so, to make appropriate confiscation orders under the 1986 Act. In the result counsel for the four principal organisers, acting on instructions, invited the trial judge to make agreed confiscation orders. At the start of his sentencing observations the judge stated:
"… it was agreed between counsel, so I was not invited to carry out a trial on this, but the benefits accruing to Bracken, Lemonnier and both Emmetts amounted to £100,000. It was agreed that a confiscation order in the sum of £1,000 should be made against Peter Bracken, in the sum of £37,484.32p. in the case of Lemonnier, £1,000 in the case of Brian Emmett, and £20,705.21p. in relation to Michael Emmett.
The judge made the agreed confiscation orders and imposed sentences of imprisonment in default. The judge then sentenced all the accused to lengthy terms of imprisonment. In the cases of Bracken, Lemonnier, Brian Emmett and Michael Emmett he imposed terms of 12½ years imprisonment.
The proceedings in the Court of Appeal
With the leave of the single judge these four defendants appealed to the Court of Appeal against their sentences and the confiscation orders. On 5 February 1996 the Court of Appeal allowed the appeals of the four men against sentence to the extent that the court quashed the custodial terms and substituted in each case a term of 9 years imprisonment. On the same day the Court of Appeal also heard argument on the appeals against the confiscation orders. The court reserved judgment on that aspect. On 16 February in a clear and careful judgment on behalf of the court Mr. Justice Collins upheld the confiscation orders made in respect of Bracken and Lemonnier but quashed the confiscation orders of Brian Emmett and Michael Emmett. The Court of Appeal refused an application by the Crown for leave to appeal against the orders quashing the confiscation orders made against the Emmetts but certified that points of law of general importance were involved in the relevant decisions. Those certified questions were the basis on which the Appeal Committee granted leave to appeal.
The 1986 Act and the certified questions
In order to render the certified questions intelligible I must briefly refer to the relevant provisions of the 1986 Act. Section 1(1) provides that the sentencing judge shall first determine whether the drug trafficker has benefited from drug trafficking. A person who has received any payment or other reward in connection with drug trafficking carried on by him has benefited from drug trafficking: section 1(2). If he has benefited, the court must determine the amount to be recovered: section 1(4) and section 4. Under the 1986 Act the burden was on the Crown to prove according to the criminal standard that the defendant had benefited from drug trafficking and what the value of his proceeds of drug trafficking was: see Dickens (1990) 12 Cr. App. R. (S.) 191. But the Crown's burden was eased by assumptions which the court was entitled to make unless it was inappropriate to do so: section 2(2). The assumption on which the Crown relied was that contained in section 2(3)(b), namely that any expenditure of his in the statutory period was met out of payments received by him in connection with drug trafficking carried on by him. Section 3 deals with the service of statements relating to drug trafficking. For present purposes subsection (1) is the critical provision. It reads as follows:
"Where –
(a)there is tendered to the Crown Court by the prosecutor a statement as to any matters relevant to the determination whether the defendant has benefited from drug trafficking or to the assessment of the value of his proceeds of drug trafficking, and
(b)the defendant accepts to any extent any allegation in the statement, the court may, for the purposes of that determination and assessment, treat his acceptance as conclusive of the matters to which it relates."
Section 4(1) then provides that the amount to be recovered in the defendant's case under the confiscation order shall be the amount the Crown Court assesses to be the value of the defendant's proceeds of the drug trafficking.
Against this statutory background I now set out the certified questions:
"(1) Where:– (i) a defendant has accepted an allegation made in a statement tendered to the court by the prosecution under section 3(1)(a) of the Drug Trafficking Offences Act 1986;
(ii) the Crown Court has treated his acceptance of the allegation as conclusive of the matters to which it relates; and
(iii) the Crown Court has made a determination in accordance with sec.4 of the DTOA of the amount to be recovered from the defendant by virtue of section 1 of the DTOA ('the section 4 determination'),
whether it is open to the defendant to appeal to the Court of Appeal (Criminal Division) against the section 4 determination on the grounds either:
(a) that his acceptance of the allegation was based upon a mistake of law; or
(b) that his acceptance of the allegation was based upon a mistake of fact."
"(2) If it is open to the defendant to appeal as aforesaid:
(i) Is there any legal or evidential burden upon the defendant to prove that the mistake of law or mistake of fact was the reason which caused him to accept the allegation?
(ii) Is the Court of Appeal (Criminal Division) entitled to vary or quash the section 4 determination made by the Crown Court before receiving and considering evidence from the defendant as to the reasons why he accepted the allegation?"
It will be observed that the certified questions assume that Brian Emmett and Michael acted under a mistake of law or a mistake of fact. They further implicitly assume that the mistakes in question were causally relevant. My Lords, for reasons that I will explain I am satisfied that these assumptions were not justified on the materials before the Court of Appeal. Strictly therefore the certified questions do not arise on the present appeals. Nevertheless, it is necessary to remove, as far as it is possible to do so, uncertainty about the narrow points of law which have been raised in the certified questions.
Certified Question No. 1: Ouster of right of appeal
The Crown rightly accepts that with leave an appeal does lie against a confiscation order as part of a sentence: see section 11 and section 50(1) of the Criminal Appeal Act 1968 and Reg. v. Johnson [1990] 91 Cr. App. R. 332. But the Crown submitted that the general right to appeal against a confiscation order has been excluded by section 3(1) in respect of a defendant's acceptance of any allegation in a statement tendered by the prosecutor which has been acted on by the court. The foundation of this submission is that section 3(1) provides that the court may treat the defendant's acceptance as "conclusive of the matters to which it relates." The submission is that "conclusive" means conclusive for all purposes including an appeal to the Court of Appeal. Counsel for the Crown pointed out that this is precisely what Lord Justice Glidewell, giving the judgment of the Court of Appeal in Tredwen [1994] 99 Cr. App. R. 154 held that section 3(1) of the 1986 Act means. Moreover, in Crutchley and Tonks [1994] 15 Cr. App. R. (S.) 627 Lord Justice Glidewell reiterated this view. Counsel also pointed out that after the decision in Tredwen Parliament re-enacted the provision in section 3(1) in substantially similar terms: see section 11(7) of the 1994 Act. Counsel suggested that Parliament endorsed the principle enunciated in Tredwen. Finally, counsel said that if the law were otherwise the position would be wide open to defendants to manipulate the system by accepting section 3 statements tendered by the...
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