Apr 23
The three appellants were British citizens, resident in England and variously owning properties or interests in properties in England. Each was alleged to have been involved in a major international tax fraud in connection with telecommunications companies based in Italy with which they were connected as directors and/or shareholders. They were extradited to Italy, where criminal proceedings were commenced. They were advised by their Italian lawyers to enter into a “patteggiamento” whereby a defendant in criminal proceedings proposed, in exchange for an agreed penalty, to renounce any defence or challenge to the charges which he faced in those criminal proceedings. A patteggiamento was subsequently agreed with the prosecuting authorities and put forward to the Criminal Court in Rome. The application resulted in a judgment recording the agreed fines and custodial sentences in excess of three years. The judgment also recorded confiscation orders against each appellant, to which they had not agreed. The appellants sought to appeal against the making of the confiscation orders but their appeals were dismissed by the Court of Cassation. Subsequently, a letter of request with a view to the registration and enforcement in England of the confiscation orders was sent in July 2014 but it was not until July 2019 that the matter came before the Crown Court for hearing. The judge ordered that the confiscation orders be registered and enforced in England under article 21 of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005. She dismissed the appellants’ application to cancel the registration. The appellants challenged the judge’s refusal to cancel the registration of those external confiscation orders, contending that the patteggiamento procedure involved no unequivocal admission or judicial determination of guilt, but was a negotiated settlement which could not be regarded as a “conviction” for the purposes of article 21(2) of the 2005 Order so that a confiscation order made in consequence of a patteggiamento could not be registered under the Order.
Held, appeal dismissed. (1) It was crucial to identify that two separate issues needed to be addressed: first, (which was a matter of Italian law) whether a sentenza di patteggiamento counted as a conviction under Italian law; and, if it did, then secondly (which was a matter of English law) whether it counted as a conviction for the purposes of article 21(2) of the 2005 Order (para 56).
(2) On the first question, a patteggiamento was, under the provisions of the Italian Code of Criminal Procedure, not conclusive evidence of the matters comprising the charge for the purposes of subsequent civil proceedings, whereas a conviction was. But that difference did not go to the heart of what was a conviction and what was not: it was simply an evidential consequence. The fact that convictions might have different consequences in different situations could also arise in English law; for example, a conviction giving rise to an absolute or conditional discharge. Article 445 of the Code stipulated that a judgment of patteggiamento was equal or equivalent to a judgment of conviction unless otherwise provided by law. Furthermore, a patteggiamento was ordinarily registered in the national criminal record system; was taken into account in assessing an appropriate sentence in the event of subsequent offending; and also operated to revoke a suspended sentence if pronounced during the suspension period. The conclusion that a patteggiamento involved an acceptance of guilt and was a conviction in Italian law was supported by the reasoning of the Court of Cassation which found that by agreeing to the patteggiamento the appellants had implicitly but unequivocally admitted the facts upon which their criminal responsibility was based, and by the fact that it carried a custodial sentence of up to five years. If it were not a conviction, that would go against the terms of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the presumption of innocence under article 6. Accordingly, the patteggiamento entered into by each of the appellants in the present case amounted to a conviction under Italian law (paras 60–66, 69).
(3) As to the second question, the features of a patteggiamento showed that it was to be regarded as a conviction for the purposes of article 21(2) of the 2005 Order. The article was designed to operate in the context of a conviction in the courts of the requesting state. But it was also to be taken as known to those drafting the 2005 Order that the procedures of such states, which did not have the common law, would differ, and perhaps significantly so, from those applicable in England and Wales. Moreover, the appellants had not in any way contested the evidence advanced by the prosecution as to the criminal offences and they had submitted to significant custodial sentences. They had proposed, on legal advice, and thereafter agreed to, the patteggiamento in and thereby impliedly (and unequivocally) admitted their guilt. Furthermore, the agreement of the parties alone was not conclusive since the judge was obliged to make a proper judicial appraisal of whether or not it was appropriate to make a sentenza di patteggiamento. That was a matter of substance: not form. Accordingly, the combination of those matters amply sufficed to make the sentenza di patteggiamento a conviction for the purposes of article 21(2) of the 2005 Order. It followed that the confiscation orders against each defendant had properly been registered (paras 71, 73–78).
Hugo Keith QC and Nicholas Yeo (instructed by Keystone Law) for the appellants.
Michael Newbold (instructed by the Crown Prosecution Service) for the Director of Public Prosecutions.