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21/02/17

Basis of Plea & Confiscation Orders

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Kangs Solicitors are regularly instructed by both individuals and corporate clients subjected to Restraint & Confiscation Orders.

Amandeep Murria discusses the implications on a Confiscation Order when a basis of plea (‘a basis’) is advanced on behalf of a client compared with the situation when a basis has not been put forward.

What is a Basis?

A defendant may wish to:

  • plead guilty to some, but not all, of the charges faced
  • plead guilty to an offence, but only on a certain set of facts

The Prosecution can either accept the basis offered, which would avoid a trial before a jury, or decline, with the result that a trial will follow carrying the risk to the Prosecution that a jury may acquit the defendant of the offence(s) charged.

If the basis is accepted, the defendant will usually only be sentenced having regard to the admissions made in it.

Effects of an Accepted Basis

In the case of Regina v – Fowles [2005] EWCA Crim 97 the Court of Appeal confirmed that a Court is bound in Confiscation Proceedings by facts contained in a basis (agreed in the earlier criminal proceedings), as it forms part of the punishment process, stating:

‘We are satisfied that the making of a confiscation order is part of the sentencing procedure. Consequently a judge is bound at that stage by facts agreed between the parties in the same way as when he is passing a punitive sentence. It is upon that basis that the prosecution advance their case and the defendant submits to conviction and sentence. It is to be remarked that prosecutors will from time to time agree a factual basis for plea with the defence in the knowledge of facts which have not been made available to the sentencing judge’.

Where there is no Basis

In this situation the position can be more uncertain and complicated.

In the case of Regina v – Fowles [2005] EWCA Crim 97 referred to above, the Court of Appeal also stated:

‘The position is different where there is no agreed factual basis of plea.

Then a judge will be required to hear the evidence placed before him and reach his own conclusion as to the part played by the defendant’.

In the case of Knaggs [2010 ] 1 W.L.R 435. the defendant, Russell John Knaggs, pleaded guilty to a Conspiracy to supply class  A drugs.

No basis was proffered and the defendant declined to challenge the Prosecution case by way of a ‘Newton Hearing’, which is a procedural process which formed part of the substantive proceedings, and during which, he had an opportunity to state his position to the court.

At the Confiscation Hearing, the Court ruled that, because of the previous inactivity on the part of  the defendant, he  could not challenge the Prosecution case, in whole or in part, at that late stage.

However, this decision was subsequently reversed by the Court of Appeal, who decided the defendant still had the opportunity to challenge the Prosecution case against him during the Confiscation Proceedings.

How can we help you? | Kangs Financial Crime Team

At Kangs, we have a dedicated team specialising in Confiscation, POCA, Restraint, Asset Forfeiture and all associated financial situations and we are happy to provide clients and fellow professionals with an initial no obligation consultation.

Should you require assistance and guidance in respect of any such Orders, please contact us immediately for the purposes of discussing matters in confidence, knowing you will be effectively advised every step of the way.

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