ON APPEAL FROM BIRMINGHAM CROWN COURT
Mr Recorder Sanghera
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE HADDON-CAVE
MR JUSTICE GARNHAM
| John Alan Brooks
|- and -
A Mitchell QC (instructed by the Crown Prosecution Service) for the Respondent
Hearing date : 14 January 2016
Crown Copyright ©
Lord Justice Treacy :
"By virtue of section 6(1)(a) the amount that might be realised is the total value of all the realisable property held by the defendant, whether derived from drug trafficking or not, and the burden of satisfying the court that the total value of his realisable assets is less than his proceeds of drug trafficking rests on the defendant. It follows that if the defendant fails to discharge that burden the court should make a confiscation order in the amount of his proceeds of drug trafficking. Moreover, the fact that the court is concerned for these purposes with a total value of all the defendant's realisable assets means that there is no reason to assume that the value of any hidden assets does not exceed the profits that he derived from the drug trafficking from the indictment. If the defendant wishes to ensure that the amount of the confiscation order does not exceed the value of the assets available to meet it, he must make full disclosure to the court in order to enable it to be satisfied that it has the complete picture."
The judge said that he was satisfied that the appellant had assets which he had not disclosed. Involvement in the illegal drugs trade to the extent evidenced by this offence could not be undertaken without significant means. The appellant had failed to discharge the burden of satisfying the court that his total assets were less than his proceeds of crime. Accordingly, he held that the recoverable amount was the same as the benefit figure, namely £3,601,818.00.
"D ordinarily obtains property if in law he owns it, whether alone or jointly which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else Mere couriers or custodians or other very minor contributors to an offence rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property."
"Once property has been obtained as a result of or in connection with crime, it remains the defendant's benefit whether or not he retains it. This is inherent in the value based scheme for post-conviction confiscation."
In this case, the drugs were seized by the Irish Navy and thus taken back into lawful custody. That does not, and cannot, operate so as to take the value of the drugs outside the benefit figure.
"In the light of Glave's case and May's case there is no principle that a court is bound to reject a defendant's case that his current realisable assets are less than the full amount of his benefit, merely because it concludes that the defendant has not revealed their true extent or value or has not participated in any revelation at all. The court must answer the statutory question [in s.7(2)] in a just and proportionate way. The court may conclude that a defendant's realisable assets are less than the full value of the benefit on the basis of the facts as a whole. A defendant who is found not to have told the truth or who has declined to give truthful disclosure will inevitably find it difficult to discharge the burden imposed upon him. But it may not be impossible for him to do so. Other sources of evidence, apart from the defendant himself, and a view of the case as a whole, may persuade a court that the assets available to the defendant are less than the full value of the benefit."
"For the purposes of deciding the recoverable amount, the available amount is the aggregate of
(a) the total of the values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total amount payable in pursuance of obligations which then have priority, and
(b) the total of the values (at that time) of all tainted gifts. (Our italics)"
The italicised words clearly focus the mind of the court upon the value of property held by the defendant at the time of the court's inquiry.
"Self evidently, property seized and forfeited would no longer be part of the available amount. Its value would not be part of all the free property held by the appellant, as pointed out in Islam."
"The presumption of legal ownership consequently has no relevant effect. I am satisfied, therefore, on the balance of probabilities that the defendant has an interest in the property. Based upon the finances that Mrs Sayeed does disclose and the evidence of her own payments I am satisfied that such interest is quantifiable as to one half of the market value, rather than the entire property."