By Richard Fisher QC
R v Graham Alan Mills
 EWCA Crim 944
This appeal raised the question whether the Court of Appeal (Criminal Division) has jurisdiction to hear an appeal by the prosecution against the terms of the default order made in confiscation proceedings pursuant to POCA 2002.
In confiscation proceedings under POCA 2002 the Judge assessed Mr MILLS’ benefit figure as £8,922,378 and the available amount as £657,197.33. The default term was set at 18 months. The prosecution applied for leave to appeal against the terms of the default order submitting that the default terms should have been for a considerably longer period: of the order of 5 to 7 years.
The prosecution submitted that judge fell into error and that the Court of Appeal should correct it, referring to Regina v German Castillo  2 Cr App R (S) 36 and the principles behind the statutory default regime. The respondent submitted that the Court of Appeal did not have jurisdiction but if it did, the setting of a default term involved the exercise of discretion with which the Court should not interfere unless it was plainly outside the range of appropriate default terms.
Their Lordships decided that although closely linked, the confiscation order and the default order are two orders, one is distinct from the other. Jurisdiction for appeals was expressly provided for by s.31(1) of POCA 2002, the prosecution has a right to appeal against the making of a confiscation order (defined in s.6(5)(b) of POCA 2002 as “…an order requiring the defendant to pay the recoverable amount.”). The words of the section did not extend to the default order and therefore there was no jurisdiction for the Court of Appeal to consider it.
Their Lordships added that they regarded the outcome as unsatisfactory and expressed the view that the Judge was in error in his assessment of the default term in the respondent’s case, appearing to take into account the sentence of imprisonment imposed for the offences he had pleaded guilty to (7 years) when the amount of the confiscation order clearly fell within the bracket of between 5 years and 7 years.
The Court’s decision was plainly right but the dissatisfaction expressed by their Lordships may act as the catalyst either for an amendment to s.31 of POCA 2002 to provide for a prosecutor’s appeal against a default term that is too low (or unduly lenient), or add to the thinking (not mine) that there should be a separate criminal offence of failing to pay a confiscation order which would carry a sentence of imprisonment (and which presumably might be one the A-G could refer). The latter option was recommended by the Home Affairs Committee in its report on the Proceeds of Crime published on 15 July 2016.
If you would like to talk to Richard Fisher QC about this case please email here.