Consent Confiscation Orders: The Court of Appeal Decision
Background
In R v Butler [2025] EWCA Crim 1, the Court of Appeal (Criminal Division) considered an appeal against an agreed confiscation order made under the Proceeds of Crime Act 2002 (POCA). The case arose from a conviction for cheating the public revenue.
On 22 March 2018, Jason Butler was convicted at the Crown Court at Leeds of fraud involving falsified VAT invoices relating to the trading of data leads. He was sentenced to 9 years' imprisonment, later extended by 6 months for breaching a restraint order.
The Confiscation Order
Confiscation proceedings followed. On 26 April 2021, the Crown Court made a confiscation order by consent. The order required Butler to pay £1,112,670.24 within three months, with a default sentence of 7 years. The agreed benefit figure was £5,915,191.77.
The available amount was agreed on the basis of two main assets:
A UK property portfolio valued at £713,842.
Butler's interest in a debt valued at £306,015, relating to a company called Nudge Limited.
The order was made by consent, and Butler was not present at the hearing. His instructions were provided via telephone while he was serving his sentence. Communication was affected by restrictions arising from the COVID-19 pandemic.
The Appeal
Butler appealed, arguing that the confiscation order was based on incorrect assumptions about the available assets:
The UK property portfolio was overvalued and most properties had already been sold, leaving little or no equity.
The debt linked to Nudge Limited was not realisable because the company had been struck off in Gibraltar before the order was made.
Butler contended that he was unable to properly check the figures due to limited access to documents and legal advice in prison. He invited the Court of Appeal to quash the confiscation order and substitute a lower amount.
The Court's Findings
The Court heard evidence from Butler, his former solicitor, and his former counsel. It was accepted by both parties that errors existed in the calculation of the available amount. However, the Court emphasised several key points:
The confiscation order was the result of negotiation and consent.
Butler's instructions were given to his legal team, who acted on his behalf.
There was no suggestion of hidden assets during the original proceedings.
The Court referred to established authority, including R v Hirani [2008] EWCA Crim 1463, which confirms that appeals against consent confiscation orders will only succeed in "the most exceptional circumstances." The Court concluded that this high threshold was not met in Butler's case.
Outcome
The appeal was dismissed. The Court held that Butler had actively instructed his lawyers to agree to the confiscation order and that there was no unfairness warranting its variation or quashing.
Postscript
Following the Court's decision, a payment of £369,584.13 was made towards the confiscation order, leading to Butler's release from custody. The Court noted that a substantial balance remained outstanding.
