By Joel Bennathan QC
When is a conviction not a conviction?
In Dines and others  EWCA Crim 552 the Court of Appeal had to address an appeal that arose under The Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005, a statutory instrument made under POCA that allows foreign jurisdictions to register confiscation orders in the UK so that assets can be frozen in the anticipation of their being used to satisfy the order of a foreign court. Perhaps the interest lies, for most lawyers, not so much in the mechanics of the POCA Order, but in the question with which the Court had to grapple, “what is and is not a conviction?” The Court needed to assess this as one of the reasons under the Code for refusing to register a foreign request is when there has been no “conviction”, but that is a question that can be less than straightforward when dealing with foreign courts with very different processes.
In reaching its decision to dismiss the appeal, the Court considered the Italian Criminal litigation outcome of sentenza di patteggiamento; in essence [and Italian criminal procedure fans can read the case for themselves], a judgment passed by the court based on a negotiated outcome between prosecution and defence that involves the defendant not admitting guilt but signing away any right to challenge the evidence or any sentence passed at a later date. The Court compared this to the procedure used in Florida, nolo contendere, with which the Court of Appeal had to grapple in McGregor (1992) 95 Cr. App. R. 240, which was found not to amount to a conviction. The judgment is detailed and complex, but the main conclusions seem to be; first, that the word “conviction” has a variety of meanings even in domestic criminal law. Second, the language used by the foreign court will be central but not determinative, so if that court calls the outcome a “conviction”, that is important. Third, an outcome that could lead to a custodial sentence will almost certainly be a “conviction”, not least as a loss of liberty in the absence of a conviction would look like a clear violation of article 5 of the ECHR.
This may be an issue more commonly encountered when the Prosecution seek to adduce bad character by way of foreign convictions, but how ever it comes up, the question “when is a conviction not a conviction?” should the provoke the lawyer’s favourite answer, “it depends”.
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