Law Lords look at confiscation loophole

Legal powers relating to the seizure of the goods of those convicted of drug trafficking are to be tested by the Law Lords later this year.

They have just given leave for an appeal by the Customs & Excise against a Court of Appeal decision on 19 February 1996 quashing a confiscation order made in respect of convicted drug trafficker Michael Emmett.

The goods confiscation order was made when Emmett was imprisoned for twelve and a half years after his conviction for drug trafficking at Exeter Crown Court on 25 October 1995.

Emmett later successfully appealed against the confiscation order which was quashed by the Court of Appeal.

However, at the time they quashed the order – made under section 1 of the Drug Trafficking Offences Act 1986 – the judges, while refusing to give leave for an appeal to the House of Lords, certified points of law which are now likely to form the basis of the Customs & Excise appeal.

They pose questions over the rights of those convicted of drug offences to later appeal on the basis that they had accepted prosecution allegations made against them by mistake.

The points of law certified by the Appeal Court judges question the legal position where a defendant accepts an allegation in a statement tendered to a crown court by the prosecution, the court has treated acceptance of the allegation as conclusive of the matters to which it relates, and the crown court has then based a confiscation order on the defendant's acceptance.

The Law Lords will be asked whether, in such circumstances it is open to the defendant to then appeal on the basis that his acceptance of the allegation was based on a mistake of law or fact.

If the Law Lords decide such an appeal is allowable they will then be asked to decide where the evidential burden of proving the alleged mistake lies and whether the Court of Appeal is entitled to vary or quash such a crown court decision without first considering evidence from the defendant as to why he had accepted the allegation in question.