The fact that a defendant's acceptance of an allegation made in a statement tendered by the prosecution under section 3(1)(a) of the Drug Trafficking Offences Act 1986 had been accepted by the Crown Court as conclusive did not preclude the defendant from appealing against the confiscation order on the ground that he had accepted the allegation through a mistake of law or fact.

Regina v Emmett and anor; House of Lords (Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Nicholls of Birkenhead, Lord Steyn and Lord Clyde) 13 November 1997

The House of Lords allowed the Crown's appeal against the decision of the Court of Appeal quashing confiscation orders made against Brian Emmett and Michael Emmett pursuant to the Drug Trafficking Offences Act 1986, and restored the confiscation orders.

The respondents had pleaded guilty to 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. Confiscation orders were made against them by agreement, of pounds 1,000 and pounds 20,705.21 respectively.

Paul Garlick QC and Nigel Lickley (Solicitor, HM Customs & Excise) for the Crown; Sir Ivan Lawrence QC and Anthony Wilcken (Ralph Haeems & Co) for the respondents.

Lord Steyn said that section 3(1) of the Drug Trafficking Offences Act 1986 provided that:

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 had 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 the allegation in the

statement, the court may, for the pur-

poses of that determination and assessment, treat his acceptance as conclusive of the matters to which it related.

The questions before their Lordships were (1) whether, where a defendant had accepted an allegation made by the Crown in a section 3(1) statement and the Crown Court had treated his acceptance of the allegation as conclusive, he could appeal against the confiscation order on the ground that his acceptance of the allegation was based on a mistake of law or fact, and (2) whether the burden was on the appellant to prove that the mistake had caused him to accept the allegation.

The Crown submitted that the general right to appeal against a confiscation order had been excluded by section 3(1) in respect of a defendant's acceptance of any allegation in a statement tendered by the prosecutor which had been acted on by the court, relying on the judgment in R v Tredwen (1994) 99 Cr App R 154.

There was, however, a strong presumption that except by specific provision the legislature would not exclude a right of appeal where such a right was ordinarily available. The focus of section 3 was the Crown Court, and its language was not apt to deal with the jurisdiction of the Court of Appeal to hear an appeal against confiscation orders even if uncontested and arising from a decison under section 3(1). The observations in Tredwen about the meaning and effect of section 3(1) were, therefore, incorrect.

The answer to the second certified question was self- evident: the burden rested on an appellant to persuade the Court of Appeal that his assertion that his acceptance of any allegation in a section 3 statement was the result of a mistake of law or fact was correct.

Lest it be thought that those observations were an open sesame to such appeals, the following matters must be mentioned. The question in such cases would not be what mistake counsel had made, but what mistake the defendant had made, and the burden of proving it might not easily be discharged. The focus in such cases would be on a material and causatively relevant mistake. Even if the defendant could persuade the Court of Appeal on those points, the court would still have to consider whether, absent a material mistake, the particular confiscation order would nevertheless have been inevitable.

In the present case, where the agreement had been freely made on instructions and had been unaffected by any mistake, the Court of Appeal had erred, and the appeal would be allowed.