Butler v The King

Factual and Procedural Background

This appeal concerns a confiscation order made by consent in the Crown Court. The appellant was convicted of cheating the public revenue and sentenced to nine years' imprisonment in 2018. Subsequently, he admitted breaching a restraint order and received an additional six months' imprisonment. Following conviction, confiscation proceedings were initiated under the Proceeds of Crime Act 2002 (POCA), requiring the appellant to disclose his assets. A portfolio of UK properties and various bank accounts were identified, with the prosecution alleging that proceeds had been laundered offshore.

The appellant, imprisoned during the proceedings, consented to a confiscation order in April 2021 for £1,112,670.24, significantly lower than the prosecution’s benefit figure of £5,915,191.77. The order was negotiated by his legal representatives without his physical presence, due to COVID-19 restrictions. Later, the appellant challenged the order on the basis that two key assets included in the available amount — a UK property portfolio and a debt owed via an offshore company — were not in fact available to him at the time of the order.

The appellant was subsequently committed to prison for non-payment of the order. Judicial review of the committal decision was refused. He now appeals, contending that the confiscation order was made on incorrect factual assumptions and that he lacked adequate access to legal advice and documentation during the consent process.

Legal Issues Presented

1. Whether the appellant can successfully appeal a confiscation order made by consent on the basis that key assets included in the order were not in fact available to satisfy it.
2. Whether the appellant’s limited access to legal advice and documentation, due to imprisonment and COVID-19 restrictions, affected the validity of his consent to the confiscation order.
3. Whether the court has jurisdiction under section 23 of the Proceeds of Crime Act 2002 to vary the confiscation order post-consent.
4. Whether the appellant’s case meets the threshold of “most exceptional circumstances” required to set aside a consent confiscation order, as established in precedent.

Arguments of the Parties

Appellant's Arguments

• The confiscation order was made on a mistaken basis, including two assets—a UK property portfolio and a debt owed through an offshore company—that were not available to satisfy the order.
• The appellant was not present at the confiscation hearing and had limited access to documents and legal advice due to imprisonment and COVID-19 restrictions.
• He believed that if the figures were incorrect, the court could vary the order, but was misadvised that this was possible under section 23 of POCA.
• The appellant contends that the order is unjust as he is serving a default prison sentence for non-payment of an order he cannot pay due to lack of assets.
• He seeks to quash the confiscation order and substitute a lesser amount excluding the unavailable assets.

Respondent's Arguments

• The respondent accepts that the two assets were overstated or unavailable at the time of the order.
• Despite this, the respondent submits that the appeal should be dismissed based on the facts of the case and settled legal authority.
• The prosecution contends that the appellant failed to prove that the available amount was less than the benefit figure, raising the possibility of hidden assets.
• Reliance is placed on the authority in Regina v Hirani and subsequent cases, which establish a high threshold for setting aside consent confiscation orders.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Regina v Hirani [2008] EWCA Crim 1463	Consent confiscation orders can only be set aside in the most exceptional circumstances, focusing on fairness and justice.	The court applied Hirani as binding authority, emphasizing the high threshold for overturning consent orders and rejecting the appellant’s claim that erroneous advice justified setting aside the order.
Ayankoya [2011] EWCA Crim 1488	Exceptional circumstances may allow an appellant to resile from a consent confiscation order.	Referenced as a comparison; the court noted that although Ayankoya involved exceptional circumstances, the present case did not meet that standard.
Ghulam [2018] EWCA Crim 1691	An appellant alleging bad legal advice must show they would have achieved a better outcome with competent representation.	The court considered this principle in assessing the appellant’s claim of erroneous advice and found no sufficient basis to overturn the order.
R v. Miller [2022] EWCA Civ 1589	Emphasizes that appeals against consent confiscation orders are wholly exceptional and the court’s focus is on fairness and justice.	The court relied on Miller to reinforce the exceptional nature of setting aside consent orders and the focus on justice in this context.

Court's Reasoning and Analysis

The court carefully examined the complex financial circumstances and the procedural history, including the appellant’s imprisonment and limited access to legal advice due to COVID-19. It found that the appellant consented to the confiscation order through his legal representatives, who negotiated a significantly reduced available amount compared to the prosecution’s benefit figure.

Despite the appellant’s contention that two key assets were not available—namely, a UK property portfolio that had largely been sold and a debt owed by a company struck off the register—the court found that the appellant was aware, or ought to have been aware, of the true status and value of these assets. The appellant’s evidence regarding the value of the property portfolio and the debt was inconsistent or unconvincing, and he failed to provide a coherent explanation for the disappearance of assets.

The court noted that the appellant’s strategy appeared to be pragmatic: consenting to a lower order to avoid a higher confiscation order potentially based on the full benefit figure, which would have resulted in a longer default prison term. The court rejected the appellant’s argument that it was unjust to hold him to the order, emphasizing that the appellant had knowingly accepted the terms despite the risks.

Regarding legal advice, the court acknowledged that the appellant was misadvised about the availability of a mechanism under section 23 of POCA to vary the order, but declined to decide on the jurisdictional question, leaving that to the Crown Court if raised. The court confirmed that the threshold for setting aside a consent confiscation order is very high, requiring “the most exceptional circumstances,” which were not met here.

The court also addressed the possibility of hidden assets, noting that the appellant denied their existence but that the prosecution’s position and evidence suggested otherwise. The court concluded that the appellant’s failure to produce assets or evidence to the contrary undermined his appeal.

Holding and Implications

The appeal is dismissed.

The court held that it was not unfair or unjust to enforce the confiscation order to which the appellant had consented through his legal representatives. The appellant’s claim that the order was based on incorrect asset valuations and inadequate advice did not meet the high threshold required to set aside a consent order. The decision confirms the binding nature of consent orders in confiscation proceedings and reinforces the principle that appeals against such orders succeed only in the most exceptional circumstances.

The direct consequence is that the appellant remains liable under the original confiscation order, and the default prison sentence imposed for non-payment stands. The court’s ruling does not establish new precedent beyond reaffirming existing principles on consent orders and the standard for setting them aside.