Court Rejects Appeal Against Confiscation Order in R v Miroslav Pesko Due to Improper Grounds

Citation: [2023] EWCA Crim 1568
Judgment on


The case of R v Miroslav Pesko, heard at the Royal Courts of Justice on December 12, 2023, addresses key issues surrounding a renewed application for leave to appeal against a confiscation order. The appeal was based on the claim that the confiscation order was made on improper grounds, including poor legal representation, health considerations of the convicted and his father, and external financial circumstances influenced by global events. This article aims to dissect the legal principles applied in the case and the court’s rationale behind refusing the application for leave to appeal.

Key Facts

Miroslav Pesko was convicted as part of an organized crime group involved in a substantial conspiracy to steal Mercedes Sprinter vans across East Anglia. The confiscation order was originally made on April 28, 2022, and determined the “available amount” to be £211,259.50, which was to be paid within three months or face two years of imprisonment in default. Pesko applied for leave to appeal the order, asserting his representation was inadequate, that his and his father’s ill health were not considered, and that he was unable to access funds in Russia due to sanctions against the country.

Several legal principles played pivotal roles in the court’s decision-making process:

1. Confiscation Order Under the Proceeds of Crime Act 2002

The court reaffirmed the principles related to confiscation orders under the Proceeds of Crime Act 2002. It detailed the established process for determining the benefit from criminal conduct and the available amount for recovery, emphasizing the factual findings required before making such an order.

2. Fresh evidence on appeal

The principles for admitting fresh evidence on appeal according to section 23 of the Criminal Appeal Act 1968 were scrutinized. The applicant was obliged to show that there was a reasonable explanation for failing to adduce the evidence during the initial proceedings.

3. Imprisonment in Default

The court examined the factors considered when fixing a period of imprisonment in default of payment of a confiscation order. It emphasized that personal circumstances play no part in the determination, highlighting the purpose of imprisonment in default as securing the payment of the confiscation order rather than punishment.

4. Change of Circumstances Affecting Recovery of Assets

The court considered the applicant’s claim relating to the inability to access funds following the imposition of Russian sanctions. It pointed out that any genuine difficulty caused by new circumstances should be addressed to the Crown Court via a ‘certificate of inadequacy’ as per section 23 of the Proceeds of Crime Act 2002, rather than being a ground for appeal.


The court concluded that Pesko’s claims for a reduced “available amount” due to inadequate presentation of documents were unfounded, as he had ample opportunity to present the necessary evidence before and during the original hearing. Furthermore, it deemed the default two-year imprisonment period justifiable and proportionate, with no bearing on the ill health of the applicant or his father.

For the claim regarding funds in Russia, the court found it contradictory to the applicant’s original claim of holding no realizable assets globally, deeming it unattractive and not meriting a consideration for appeal.

Ultimately, the court refused the renewed application for leave to appeal, reiterating that its role was not to reassess the evidence but to consider whether the original hearing was fair and based on safe conclusions.


The Court of Appeal upheld the procedural safeguards in cases of confiscation orders as guided by the statutory framework. It stressed the need for consistent and accurate presentation of evidence by defendants and clarified the scope of consideration for imprisonment in default as a means to compel the fulfillment of confiscation orders. Pesko’s application for leave to appeal further demonstrated the limitations in appealing based on “fresh evidence” and changes in personal circumstances affecting the realization of assets. The clear message for practitioners is the imperative of thorough preparation at the confiscation hearing stage and the limits of appeal when seeking to introduce new evidence not previously available.