It would be
manifestly unfair for a defendant to be held to a concession that was made
because of a mistake of law: R v Mackle
(Northern Ireland) [2014] UKSC 5
(29 January 2014) at [53].
The basis for a concession – is new
evidence needed on appeal?
Where a defendant
has conceded an element of liability (here that he “benefited” by avoiding a
liability to pay duty and VAT on imported goods), but in law that concession
was wrongly made (because he was not legally liable to make those payments),
there is no need on appeal for evidence that the defendant was wrongly advised
if the only evidence relied on by the prosecutor is insufficient to prove the
obtaining of that, or any other, benefit [45].
Determining jurisdiction
Where a
concession is made it may, in a particular legislative context, nevertheless be
for the court to be satisfied that the point is established [51]. A concession
about facts can provide evidence on which the court determines that it has
jurisdiction to make an order, but a concession about a legal requirement is
not determinative of jurisdiction.
The context
here is the Proceeds of Crime Act 2002 [UK] (the POCA):
“[50]
It is to be remembered that under POCA the court must itself decide whether the
convicted person has benefited from his particular criminal conduct. The power
to make a confiscation order arises only where the court has made that
determination. A defendant's consent cannot confer jurisdiction to make a
confiscation order. This is particularly so where the facts on which such a
consent is based cannot as a matter of law support the conclusion that the
defendant has benefited. On the other hand, if it is clear from the terms on
which a defendant consents to a confiscation order, that he has accepted facts
which would justify the making of an order, a judge, provided he is satisfied
that there has been an unambiguous acceptance of those facts from which the
defendant should not be permitted to resile, will be entitled to rely on the
consent. This is so not because the defendant has consented to the order. It is
because his acceptance of facts itself constitutes evidence on which the judge
is entitled to rely. Provided the acceptance of the facts is unequivocal, and
particularly where it is given after legal advice which proves to be sound, the
judge need not mount a further investigation. It should be emphasised, however,
that this is because the judge can in those circumstances himself be satisfied
on the evidence that the basis for making a confiscation order has been made
out.”
Liability and benefit
In
proceedings for the confiscation of the benefits of crime, it must be shown
what benefit the defendant obtained, that is, how much he gained from the
offending. The requirements for liability are not the same as the requirements
for establishing a benefit from criminal activity [66], [68]. Examples are the handling
of prohibited goods, or participation in a conspiracy, which do not alone
establish that a person has benefited from criminal activity [68].
This case
applies R v May [2008] UKHL 28, R v Green [2008] UKHL 30, and Crown Prosecution Service v Jennings
[2008] UKHL 29 (all 14 May 2008), discussed here on 16 May 2008.
Concessions and confessions
You could –
just for the sake of remaining alert - compare the consequences of a mistake of
law resulting in a concession, with the consequences of a mistake of law
resulting in a confession, discussed here on 7 December 2013. Whereas the error-induced concession
made by each appellant in Mackle was of
no legal effect, the error-induced confession in the (currently) suppressed
judgment of the NZCA did have evidential effect. The difference reflects the
law/fact distinction. Also, there are two types of fairness at play: the fairness of the trial (a first requirement being that the law is accurately applied) and public policy fairness (the balancing of interests carried out in determining admissibility).
