McCarry, R v [2008] EWCA Crim 1587

Case No 200703746/B3[2008] EWCA Crim 1587
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 2nd July 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MAURICE KAY
MRS JUSTICE COX DBE
THE RECORDER OF NOTTINGHAM
(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
JOHN MCCARRY
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Non-Counsel Application
J U D G M E N T
[1]The Recorder of Nottingham: On 1st September 2006, in the Crown Court sitting at Maidstone before His Honour Judge Nash, this applicant pleaded guilty to possessing a controlled drug with intent to supply. On 10th October 2006 he was sentenced to a community order of two years with a supervision requirement of 18 months and an unpaid work requirement of 150 hours.[2]He had put in a basis of plea which for the purposes of sentencing the prosecution did not dispute. Significantly, however, both the prosecution and the judge were aware that at the time of sentence a not insubstantial sum of money had been found at the applicant's home following his arrest for this offence. The judge in his sentencing remarks specifically stated:
"I will deal with whether or not the money found in your possession was from a legitimate source on some future occasion."
[3]The facts of the offence very briefly are these. On 17th December 2005 the applicant was approached by police officers in a shopping centre in Kent. He ran away but was caught and detained. Amongst his clothing were several wraps of cocaine in small plastic bags collectively within a larger plastic bag. In his car there were further small empty plastic bags. The cocaine weighed some 14.3 grammes. He was also in possession of £1,000 in cash.[4]In the event, Judge Nash did not deal with the money found in his possession on some future occasion. That was left to Judge MacDonald QC on 20th June 2007. He was met with a preliminary submission that because the prosecution had accepted the basis of plea of the applicant, that he was distributing drugs only to those within his social circle, it was submitted that it was not appropriate for the court to go on to consider a confiscation order at all. The submission, that the basis of plea effectively precluded the making of a confiscation order, was rejected by Judge MacDonald. He found that the Crown did not expressly concede before the sentencing judge that any of the applicant's account of the matter was necessarily true. They simply accepted that the primary facts that they could prove to the requisite standard were consistent both with the applicant being a commercial dealer or the version of events he put forward in his basis of plea. No Newton hearing was held and the applicant was sentenced on his basis of the facts, which no doubt explains the sentence which he received.[5]The judge was then referred to the authorities, in particular the cases of Lunnon [2004] EWCA Crim 1125 and Lazarus [2004] EWCA Crim 2297. The essential distinction between these two cases is that in Lunnon, when the defendant was sentenced, the Crown specifically agreed the basis of plea put forward, that he had not been at the heart of the conspiracy and, significantly, that he had no previous involvement in drug trafficking at all. This court decided that in those circumstances a confiscation order was effectively precluded, because in those circumstances there would be a risk of serious injustice.[6]In the case of Lazarus the basis of plea actually conceded involvement in drug activity during the six months prior to the charges to which Mr Lazarus had pleaded guilty, but the basis of plea was entirely silent as to the position during the six years prior to the commencement of the proceedings. This court held, as is now well established, that a confiscation order is not limited to the proceeds of the offence which is charged. The effect of the legislation is that a relevant conviction opens a confiscation enquiry into property passing through the defendant's hands during the previous six years. This court also pointed out that the confiscation scheme is subject to rules quite different to those governing the laying of charges on an indictment. In paragraph 20 of the report Hughes J, as he then was, said this:
"Lunnon and this case are perhaps salutary reminders that some care needs to be taken by the Crown when considering proffered bases of plea. In some cases the Crown may be in a position to make the kind of express acknowledgment that was made in Lunnon, that the indicted offence is the defendant's first involvement in relevant crime, and to do so knowing that that acknowledgment will be carried forward into confiscation proceedings. In other cases, and we suspect in the majority, the Crown may be able to say no more than that for the purposes of sentence it does not and cannot dispute a particular assertion made by a defendant, but that it cannot say what information may arise in any subsequent confiscation proceedings."
[7]That principle has recently been upheld by this court in the case of Mark Green [2007] EWCA Crim 1248. In paragraph 35 David Clarke J, who gave the judgment of the court, pointed out that -- without going into the details of Green which we do not propose to do so -- that Green was indistinguishable from Lazarus. The basis of plea in Green related to a specific period between March 2001 and September 2003. It said nothing about any earlier period and the Crown did not agree that the appellant had not been involved in drug trafficking during the period between July 2000 and March 2001. In those circumstances, to make the statutory assumptions in relation to property passing through the appellant's hands prior to March 2001 was not itself inconsistent with the basis of plea and did not for that reason give rise to a serious risk of injustice.[8]That effectively was the decision of Judge MacDonald in this case. He found that this case was indistinguishable from the case of Lazarus. The basis of plea was entirely silent as to the applicant's activities in the six years prior to the commencement of the proceedings. Having given his ruling, the applicant did not dispute that the assumptions applied and the judge accordingly seized by way of confiscation the £33,500 or so that he was found to have in his possession.[9]In the judgment of this court, the approach of Judge MacDonald cannot be faulted. It was correct and entirely in accordance with the authorities. This application is therefore refused.