In confiscation proceedings counts left to lie on the file may have unwelcome implications which had not been foreseen by the defendant and his legal team at an earlier stage. What are these implications?
Counts left to lie on the file
in any subsequent confiscation proceedings there is, I venture to suggest, a very important difference between these two methods of disposal
When a defendant has been charged with more than one offence he may wish to offer a guilty plea to some of the counts he faces if the remaining counts against him will not be pursued. Those counts which are not pursued might be dealt with in one of two ways. The prosecution could state in court that they propose to offer no evidence on those counts. The judge will then formally record ‘not guilty’ verdicts in relation to them.
Alternatively the prosecution could invite the judge to agree that the counts are to be ‘left to lie on the file’ without any verdict being entered. That means that the prosecution may only revive and proceed on those counts in wholly exceptional circumstances.
So it would appear that, in practical terms, the outcome is the same – those allegations have been disposed of and the defendant will no longer face prosecution for them. But in any subsequent confiscation proceedings there is, I venture to suggest, a very important difference between these two methods of disposal.
Case law indicates that where a defendant has been formally acquitted of a count it is not open to the prosecution to suggest, in confiscation proceedings based on his conviction on one or more other counts on the same indictment, that the defendant was in fact guilty of that offence. To do so would imply that the court has ‘got it wrong’ so far as the acquittal is concerned.
it is not open to the state to undermine the effect of the acquittal
In R (on the application of Adams) v Secretary of State for Justice  UKSC 18 the Supreme Court held at paragraph  “the principle that is applied is that it is not open to the state to undermine the effect of the acquittal”. Similarly the Supreme Court held in Gale v Serious Organised Crime Agency  UKSC 49 at paragraph  “in all proceedings following an acquittal the court should be astute to ensure that nothing that it says or decides is calculated to cast the least doubt upon the correctness of the acquittal”.
In this respect the UK Supreme Court judgments are consistent with the decision of the European Court of Human Rights in the case of Geerings v The Netherlands  ECHR 191. In the Geerings case a confiscation order made against Mr Geerings following his conviction of certain offences was assessed, in part, on the basis that he was in fact also guilty of other offences of which he had been acquitted in the same proceedings. The European Court held that this had violated his Article 6(2) right to the presumption of innocence.
in contrast . . . the defendant may find that the burden will rest upon him
In contrast where counts have been left to ‘lie on the file’ I suggest that it is open to the prosecutor, in confiscation proceedings, to suggest that the defendant is in fact guilty of those offences. Indeed in a ‘criminal lifestyle‘ confiscation the defendant may find that the burden will rest upon him to satisfy the court, on the balance of probabilities, that he is not guilty of those offences.
An example from a recent case in which I was involved may underline the point. The defendant, let’s call him Simon, ran a plant hire business. His premises were raided by the police who examined 91 items of plant which he hired out. They found 39 of these items to have been stolen property. Simon was charged with 39 counts of ‘handling’ under s22 Theft Act 1968 on the basis that he knew or believed these items to be stolen. Simon denied that he knew or believed the items to be stolen but, shortly before the matter came for trial, he pleaded guilty to 9 of the 39 counts and all parties agreed to the remaining 30 counts being left to ‘lie on the file’.
Simon was subsequently subject to confiscation on the basis that he had a ‘criminal lifestyle‘ having been convicted of more than 3 offences and having obtained from them a benefit of at least £5,000 (which was not disputed). In the confiscation proceedings the prosecution asserted that the income generated from the hiring out of all 39 items was benefit of Simon’s criminal conduct. The defence contended that the benefit should be assessed only by reference to the income from the hire of the 9 items in relation to which Simon had been convicted.
The judge entirely disbelieved and rejected Simon’s evidence
The judge heard oral evidence from Simon regarding his state of knowledge concerning the 30 items and also heard oral evidence from other witnesses. The judge entirely disbelieved and rejected Simon’s evidence and based the confiscation order on the income generated from the hire of all 39 stolen items.
In approaching the matter in the way he did, the judge acted consistently with the recent Court of Appeal judgment in Bagnall v R  EWCA Crim 677. It was open to the judge to apply the statutory assumptions which, in his judgment, Simon had failed to rebut in relation to income generated from the hire of all 39 stolen items. This did not, in law, amount to a finding that Simon was guilty of offences of which he had not been convicted (although it had the same effect in terms of the confiscation order).
In a jury trial the burden would have been upon the prosecution to prove, to the criminal standard, that Simon knew or believed that each of the items of plant was stolen
No doubt the outcome of the confiscation would have been significantly different if Simon had been formally acquitted of the 30 counts to which he did not plead guilty. Alternatively, had Simon insisted, insofar as he was able, that he face trial before a jury on the 30 counts (and, in my view at least, a defendant has a right to a fair trial on all the counts with which he has been charged) it is possible that he would have been acquitted on some or all of those counts. In a jury trial the burden would have been upon the prosecution to prove, to the criminal standard, that Simon knew or believed that each of the items of plant was stolen. As things turned out, acquittals on any of the counts would have led to a better outcome for Simon in the confiscation proceedings.
So, for a defendant and his legal team, agreeing to counts being left to ‘lie on the file’ may be a less attractive option than it appears.