Regina v Hirani

Factual and Procedural Background

The appellant pleaded guilty on 29th June 2004 at a Crown Court to multiple counts of false accounting and conspiracy to cheat the public revenue, resulting in a three-year imprisonment sentence on 10th September 2004. Confiscation proceedings commenced thereafter, culminating in a confiscation order on 13th September 2005 for £110,000, payable within two years, with a default custodial sentence of three years if unpaid.

The appellant had fraudulently claimed various benefits over nearly 20 years while working as a self-employed photographer and failing to report income to tax authorities. The total defrauded sums exceeded £185,000, including unpaid tax and interest. The confiscation regime required determining the benefit derived from criminal conduct and the value of realisable assets, with the order reflecting the lesser amount.

The prosecution's investigation, led by an officer, identified numerous financial assets and transactions suggesting hidden assets by the appellant. However, the appellant disputed these findings, claiming most assets were controlled by his ex-wife following divorce proceedings, though he provided no documentary evidence. The appellant agreed to a compromise figure for realisable assets of £110,000 to avoid a contested hearing, which was accepted by the prosecution and the court.

No payments were made within the stipulated two-year period, leading to enforcement proceedings and the appellant's return to custody. The appellant appealed, contending that he had been misadvised legally regarding his ability to seek relief from the confiscation order if unable to pay, specifically referencing the procedure for a certificate of inadequacy under the Criminal Justice Act 1988.

Legal Issues Presented

1. Whether an individual subject to a confiscation order made essentially by consent can subsequently set aside that order on the basis of erroneous legal advice received before agreeing the order.
2. Whether erroneous legal advice regarding the availability and effect of a certificate of inadequacy application justifies setting aside a confiscation order agreed upon by the appellant.
3. The extent to which principles applicable to appeals against conviction based on erroneous legal advice apply to appeals against confiscation orders.
4. Whether the confiscation order was manifestly excessive or made on a wrong factual basis due to the appellant's acceptance of an inaccurate figure for realisable assets.

Arguments of the Parties

Appellant's Arguments

• The appellant contended that he agreed to the confiscation order figure based on erroneous legal advice that if he failed to pay, he could return to court to seek relief on the basis of inadequate funds, thereby avoiding imprisonment.
• He argued that this advice was incorrect and that had he been properly advised, he would have contested the order or negotiated a lower figure.
• The appellant's counsel analogized the situation to appeals against conviction based on erroneous legal advice, suggesting the confiscation process was rendered unsafe and that the order should be quashed.
• The appellant sought the court’s discretion to impose no confiscation order or a different order on appeal.

Respondent's Arguments

• The prosecution maintained that the confiscation order was properly made on the basis of the appellant's agreement and the evidence of hidden assets.
• It was argued that the appellant bore the burden of proving realisable assets were less than the benefit figure, which he failed to do.
• The prosecution relied on precedent holding that erroneous legal advice applicable to guilty pleas and convictions does not translate to appeals against confiscation orders.
• They emphasized the consent nature of the order and that the appellant’s credibility was poor due to a history of dishonesty and failure to disclose assets.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the appellant's contention that erroneous legal advice induced him to agree to a confiscation order figure that did not reflect his true realisable assets. It emphasized the fundamental distinction between appeals against conviction and appeals against sentence, including confiscation orders. The court noted that the burden lay on the appellant to prove that realisable assets were less than the benefit figure, which he failed to do.

The court found that the confiscation order was made on a factual basis agreed by the appellant as a compromise to mitigate risk, not on a mistaken factual premise. The advice received was not incorrect in substance; rather, it was a realistic assessment of the appellant's poor credibility and the risks of contesting the order. The court rejected the analogy to appeals against conviction based on erroneous advice, highlighting that the procedural protections and consequences differ significantly.

The court acknowledged the possibility of setting aside consent orders in exceptional circumstances but concluded that erroneous advice alone, absent unfairness or procedural impropriety, did not justify setting aside the confiscation order. The appellant's credibility was undermined by a history of dishonesty, failure to disclose assets, and inconsistencies in his claims. The advice to accept the compromise was assessed as sound and in the appellant's best interest.

Consequently, the court dismissed the appeal, affirming the validity of the confiscation order and the burden placed on the appellant to demonstrate a lower realisable asset figure. The court also confirmed its power to substitute a different confiscation order on appeal, although this was not exercised in the present case.

Holding and Implications

DISMISSED

The court dismissed the appellant's appeal against the confiscation order. The decision confirms that consent orders in confiscation proceedings will not be set aside merely because of erroneous legal advice unless exceptional circumstances demonstrating unfairness or procedural impropriety are shown. The ruling underscores the distinct legal framework governing appeals against confiscation orders compared to appeals against conviction.

The direct effect is that the confiscation order for £110,000 remains enforceable, and the appellant is liable to the default custodial sentence if unpaid. The court noted that the prosecution may pursue enforcement measures, including appointing a receiver to realize assets. No new legal precedent altering the approach to consent orders or appeals in confiscation proceedings was established.