No: 200705756/C1 

Neutral Citation Number: [2008] EWCA Crim 1600

IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Thursday, 3rd July 2008

B e f o r e:

LORD JUSTICE MAURICE KAY 

MR JUSTICE SILBER 

THE RECORDER OF NOTTINGHAM
(Sitting as a Judge of the Court of Appeal Criminal Division) 
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R E G I N A 

v 

MICHAEL EDWARD CORCORAN
 
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Miss K Bex appeared on behalf of the Appellant
Mr L Cox appeared on behalf of the Crown
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J U D G M E N T
1.	MR JUSTICE SILBER:  Michael Corcoran, who is now aged 42 years of age, appeals with leave of the single judge against a confiscation order that was imposed on him at the Crown Court at Ipswich on 11th May 2007, when he was ordered to pay £79,057.11 within six months under a confiscation order imposed under section 2 of the Drug Trafficking Act 1994.  The appellant had earlier changed his plea to guilty to a count of conspiracy to produce a controlled drug of class A and he was sentenced to four years' imprisonment.
2.	This appeal does not relate to that sentence, but only to two aspects of the confiscation order.
3.	The facts which gave rise to this offence are that after the police had executed a warrant at an industrial estate at Bury St Edmunds on 21st September 2005 they discovered that it had been used for the production of cannabis.  The case for the prosecution was that this was a business venture and they attributed roles to many people involved, but that role attributed to the appellant was that he was that of regional director.  The appellant pleaded guilty on a specific basis, which was accepted by the prosecution and to which we will shortly refer.
4.	When the application was made for the confiscation order the appellant's realisable assets were said to be just over £232,000.  It included a property at 10 High Beeches, Sidcup, which was registered in the name of his wife, Kerry Corcoran.  It was asserted that the appellant had an interest in the property because, first, he was married to Kerry, secondly, he resided at the property, thirdly, he contributed to the household expenses and, fourth, he deposited monies into his wife's account which were used to pay the mortgage.
5.	The value of the property in September 2006 was £280,120, but there was an outstanding mortgage of about £87,000 at this time.  This produced an equity of somewhere in the region of £192,000.
6.	The case for the appellant is, first, that the judge should have deducted the costs of sale, but he failed to do so.  The judge accepted that he was obliged to deduct the costs of sale, but failed to do so.  In the case of Hedges [2004] EWCA Crim 2133 it was held by this court that the costs of sale have to be deducted.  Mr Cox for the prosecution accepts that these costs should have been deducted but were not deducted.
7.	The next issue is what is the appropriate rate for the deduction.  The case for the appellant is that it should be 5 per cent.  The prosecution say this is too high.  Doing the best we can with the material in front of us, we have come to the conclusion that the appropriate deduction should be 3 per cent.
8.	The second aspect of the appeal relates to the value of the appellant's benefit from drug production.  DC Binns estimated the benefit as between £624,000 and £6.8 million.  The prosecution's calculation of the appellant's share was set out in the prosecution statement, but the issue on this appeal is whether the figure should not have been £722,000, but £624,000.  
9.	The case for the appellant is that it should have been the lower figure because of the basis of plea.  The relevant parts of it say that: 
"I, Michael Corcoran, wish to plead guilty to count 1 on this indictment, I do so on the following basis:
... 
 (iv) I understand that the prosecution will ask the court to sentence on the basis of three crops per year and the lowest figures stated by DC Binns in his statement: my income over the period of my involvement was significantly less than the lowest of his estimates." 
As we have indicated, the lowest of the estimates was £624,000.  
10.	The case for the prosecution is that the basis of plea is not of relevance to the confiscation proceedings.  Our attention has been drawn to the authority that deals with the relationship between the significance of what is said in a basis of plea in confiscation proceedings.  In the case of R v Green [2007] EWCA Crim 1248 David Clarke J, giving the judgment of this court, said:
"... we accept the principle that a court conducting a confiscation hearing is bound to respect the defendant's basis of plea and must not make findings of fact or assumptions that would contradict it."
11.	This, of course, is not a case where there is an assumption, but it is noteworthy that David Clarke J reminded us that in the case of Lunnon [2005] 1 Cr App R(S) 111 the Crown had expressly accepted that the appellant had not been involved in drug trafficking before he joined a conspiracy with which he was charged.  When the matter came in front of this court, it held that there would be a serious risk of injustice if the court were to make a statutory assumption in relation to property passing through his hands prior to the admitted period of the conspiracy in the light of the precise terms of the basis of plea.
12.	More recently in the case of Lazarus [2005] 1 Cr App R 98 the appellant had pleaded guilty to being concerned in the reply of cocaine between December 2002 and May 2003.  At the confiscation hearing an issue arose as to whether sums of money, totalling £51,000 which passed through his bank account during the six months prior to the proceedings, were the proceeds of drug trafficking.  Of that sum of £51,000, it was agreed that only £11,000 had passed through the account during the six month period to which the charge related.  The judge in that case was entitled to use the statutory assumptions and he found that the defendant had failed to establish the whole of the money was not the proceeds of crime and its made an order accordingly.
13.	When the matter came before this court, the appellant submitted that for the court to make the statutory assumptions in that case it gave rise to a serious risk of injustice because the assumptions were inconsistent with the basis of plea.  That argument was rejected.  Hughes J, as he then was, giving the judgment of this court pointed out first that in that case, unlike the case of Lunnon, the appellant's basis of plea was silent about his activities prior to the date of the matters charged and second that in accepting the basis of plea the crown had not agreed that he had not been involved in drug trafficking at an earlier date.  Thus this court rejected the submission that to make the assumption would be inconsistent with the basis of plea.
14.	It is noteworthy that in giving his judgment Hughes J said at paragraph 20:
"We have no doubt that the Crown ought, as a matter of good practice, when responding to a basis of plea which is advanced in a case where confiscation proceedings might follow, to bear in mind the question of whether it will be asking for a confiscation enquiry to be made and, if so, what if any admission is now being made which will apply to that enquiry."
15.	The thrust of the submission made by Miss Bex on behalf of the appellant is that that is precisely what has happened in this case, because the document which is entitled the basis of plea, and to which we have referred, also included in it the following provision:
"For the purposes of agreeing an acceptable basis of plea paragraph 7 of the above is agreed but is not agreed for the purposes of any confiscation proceedings that will follow."
We add that paragraph 7 is irrelevant to this application.
16.	Thus it becomes necessary to consider the basis of plea in the light of that guidance.  In our view, three points emerge.  First, the prosecution had borne in mind the question of which aspects of the plea could be used in the confiscation proceedings by inserting the comment, which we have indicated, at the bottom, stating which matters could not be agreed for the purpose of the confiscation proceedings.
17.	Secondly, the presence of that comment shows that it was intended by the prosecution and the defence that all other matters in the basis of plea formed the agreed basis for considering the confiscation application.  Indeed, otherwise there would be no point in that note at the bottom referring to paragraph 7.
18.	Third, the assertion made about the value of the appellant's share was by implication one of those matters which the parties agreed should be not only the basis for sentencing the appellant, but also the basis for considering a confiscation application.  It was said by Mr Cox on behalf of the prosecution that that was not what the parties intended.  Our task is to construe the document.  As we have indicated, this indeed shows that the agreed basis of plea, so far as the confiscation proceedings, was that the extent of the benefit of the appellant would be regarded as being £624,000.  
19.	Thus the appeal succeeds on both those points.