ISSUE 5 2008 - Sweet & Maxwell

400 Case & Comment [2008]
restricted in any way in respect of the length of the sentence imposed. The result
seems to be that if the offence itself is one which would not in any event attract a
sentence of more than 12 months (the maximum term which may be suspended) a
suspended sentence order with the appropriate community requirements may convey
to the offender the consequences of a possible breach; but if the appropriate custodial
sentence for the offence would be greater than 12 months, it is better for the court to
impose a simple community order, leaving the question of the length of any custodial
sentence to be imposed on the breach of the order to be decided, in the event that a
breach does occur, by the court which deals with the breach.
[D.A.T.]
Confiscation order—amount that may be realised—agreement between prosecution and
defence as to amount to be paid—whether agreement consistent with statute
Agreements; Certificates of inadequacy; Confiscation orders; Drug trafficking;
Proceeds of crime; Realisable property
Telli v Revenue and Customs Prosecution Office
Court of Appeal (Civil Division): Ward, Moore-Bick and Moses L.JJ.: December
21, 2007; [2007] EWCA Civ 1385.
In 1996 a confiscation order was made against the appellant under the Drug
Trafficking Act 1994 in the amount of £3,458,806, with a term of 10 years’
imprisonment in default, subsequently reduced on appeal to eight, and further
reduced to 5.6 years following the payment of a portion of the sum ordered.
The appellant applied for a certificate of inadequacy in accordance with the
Drug Trafficking Act 1994 s.17, on the basis that a statue which formed part
of the property found to be available to meet any confiscation order had been
repatriated by the Turkish Government as a stolen antiquity. In the absence of
any possibility of realising the value of the statue, the appellant contended that
his realisable property was inadequate for the payment of the amount outstanding.
The outstanding balance at the time of the application was approximately £1.9
million. The application was refused by a judge of the High Court. The appellant
appealed against the refusal of a certificate of inadequacy.
Held, (Moses L.J.) the confiscation order was made in 1996 as a result of an
agreement between the Crown and the appellant. It was contended for the Crown
that the appellant had agreed to pay the sum of £3,458,806 without any agreement
as to the assets which he held. On the basis of the agreement, the application for
a certificate of inadequacy was refused on the ground that the original order was
based on a compromise made on the understanding that the appellant accepted
that he would find £3,458,806. The language of the judge refusing the certificate of
inadequacy used the language of compromise, as if the agreement could be regarded
as analogous to the compromise of a civil action. The appeal raised the question
whether that analogy could be drawn in the context of the statutory scheme under
which the confiscation order was made. The 1994 Act had now been repealed and
replaced by the Proceeds of Crime Act 2002. The 1994 Act required the Crown
Court to determine, first, whether the defendant had benefited from drug trafficking.
If the court was satisfied that the defendant had benefited, the court was required
to quantify the amount of the benefit in accordance with s.4. Certain assumptions
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