England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
Mr Recorder Sanghera
T20117980

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/03/2016

Lord Justice Treacy :

1. This is an appeal against a confiscation order made on 18 June 2014 at Birmingham Crown Court. At the end of a contested hearing, the appellant was found to have benefited in the sum of £3,601,818.00 and to have realisable assets in the same sum. Accordingly, a confiscation order in that sum was made. It was to be paid within 6 months. In default thereof the appellant was to serve 7 years imprisonment.
2. Confiscation proceedings arose out of the appellant's conviction on 24 September 2012 in the Birmingham Crown Court of an offence of conspiracy to import cocaine. The period covered by the indictment was between 1 January 2006 and 31 December 2009. The charge arose out of the seizure by the Irish Navy in November 2008 of 1504 kilograms of cocaine with an average purity of 70 per cent after they had boarded a yacht called Dances With Waves in heavy seas near the Irish coast. The drugs had a street value in the order of £150 million. In addition to the drugs, various charts, papers, logbooks and other documents were recovered. The drugs were intended for Wales, the destination of the boat being Caernarfon Bay. The yacht had started its journey in Trinidad. Its three crew members pleaded guilty in Ireland to attempting the importation of drugs into the United Kingdom. Each was sentenced to 10 years imprisonment.
3. This appellant's case, rejected by the jury, was that he knew nothing about and had no involvement in any conspiracy to import the drugs. The Crown's case against him was that his role in the conspiracy was as an organiser and procurer of the boats and yachts which would transport the drugs which had originated in South America to the United Kingdom. He was also concerned with the hiring of the crew and directing arrangements for the importation. The use of the yacht was central to the importation and the appellant had given directions about the loading and storage of the cocaine and must have been involved in liaising with the South American suppliers in determining where it would be transferred to the yacht off the coast of South America.
4. There was evidence that the appellant had sent cash transfers to the crew after purchase of the yacht for the purpose of picking up the cocaine. He had, prior to the yacht's departure, made two trips to South America for the purpose of arranging matters, using false identities. There was evidence showing his ability to be in contact with the satellite phone on the yacht as it made its journey, as well as evidence capable of showing involvement with arrangements for a rendezvous point off the coast of north Wales for transfer of the drugs. There was also evidence that prior to purchase of Dances With Waves the appellant had visited Trinidad and had been involved in the purchase or proposed purchase of two other boats using false identities. In addition to that general summary, there was evidence of a lavish lifestyle well beyond the appellant's known or declared income.
5. The jury heard evidence of previous relevant drug convictions involving importations. There was a conviction in 1989 in Spain for smuggling cannabis from Morocco for which the appellant received 4 ½ years imprisonment. In 1996 the appellant was convicted and sentenced in his absence in France after the interception of a boat carrying a very large quantity of cannabis. In 1997 the appellant was convicted in Morocco and sentenced to 10 years imprisonment for an offence described as "trafficking narcotics" involving a boat. There was also evidence of convictions in 1987 and 2007 in this country for the use of passports in false names.
6. As this court in dismissing his appeal against conviction observed there was a very strong circumstantial case against the appellant (see Brooks [2014] EWCA Crim 562). The bad character evidence referred to above can only have strengthened the Crown's case against the appellant. He was sentenced to 28 years imprisonment less time on remand and made the subject of a serious crime prevention order.
7. It appears that the appellant has had a number of different counsel to represent him in the course of the proceedings. Counsel appearing at the confiscation hearing was not trial counsel, and counsel appearing before us is did not appear in the confiscation proceedings.
8. In the contested confiscation proceedings, the appellant gave evidence and maintained that he had a legitimate source of income but had been hampered in presenting his case because the Spanish authorities had seized documentation from his home in Spain which would have supported his arguments. The Crown had obtained and disclosed documentation from the Spanish authorities and did not accept that there was additional material still in Spain. A ground of appeal based on the judge's refusal of an adjournment for further enquiry of the Spanish authorities has not been pursued.
9. One of the issues at the hearing related to the appellant's interest in a Spanish property. The judge permitted the appellant to adduce a witness statement of the appellant's partner and supporting documents including an opinion from a Spanish lawyer. The judge accepted that the partner was the legally registered owner of the property but concluded that the mortgage on the property could only have been provided with financial involvement from the appellant which, he held, would have been the proceeds of crime. He therefore concluded that the appellant had a beneficial interest of one half of the market value in the property. In computing the appellant's benefit the court valued the appellant's beneficial interest in the Spanish property at £296,797.21, equivalent to €365,000.00.
10. The judge ruled that the appellant had a criminal lifestyle pursuant to section 75 and Schedule 2 of the Proceeds of Crime Act 2002 (POCA), the offence of which the appellant was convicted being specified in Schedule 2. This is uncontroversial. Next, the judge turned to the question of whether the appellant had benefited from his general criminal conduct. He noted that, whilst the appellant had not made any admission, there had been no dispute that he had benefited from his criminal conduct. He observed that, in the light of the conviction, its surrounding circumstances and the quantity of drug involved, there could be no serious issue on the point and that, indeed, none had been taken. He made a finding that he was satisfied that the appellant had benefited from his criminal conduct. He then identified the real issues raised before him as relating to the amount of benefit and the recoverable amount.
11. As already stated the judge assessed the appellant's total benefit at a little over £3.6 million. This included the value of the drugs at approximately £2.947 million and a 50 per cent beneficial interest in the Spanish villa valued at about £296,000.00. In making the findings as to benefit, the judge repeatedly noted the absence of documentary evidence to support claims made by the appellant that he had a number of legitimate sources of income. The judge noted that in assessing benefit, the assumptions in section 10 of the Act applied unless the appellant could rebut them by showing on the balance of probabilities that an assumption was incorrect or that there would be a serious risk of injustice if the assumption were made. He commented that the appellant's contentions were largely based on bare assertions unsupported by documentation in circumstances where documentation could be expected to exist.
12. The judge then turned to the question of the recoverable amount. If a defendant's available assets are less than the benefit figure a confiscation order must be made in that lesser sum. It is for a defendant to establish on the balance of probabilities that the amount recoverable is less than the benefit figure. The judge held that apart from the interest in the Spanish property, the only identified available assets were a relatively small amount of cash, premium bonds and an amount held in an account together totalling just under £1,400.00. However, the judge went on to note that the appellant had conducted his financial affairs in such a manner as not to leave a documentary trail. He had used false passports and false names. There was evidence of bank accounts, property and business deals in various countries, all undocumented. There was evidence of substantial sums of cash paid into bank accounts or held in a safe or deposit box. The existence of three flats in Thailand only emerged during the hearing: they seem to have been sold under some form of barter arrangement. Moreover, the judge said that it was unarguable that the appellant had at least contributed to the purchase of the drugs which were the subject of the conviction. That would involve access to a considerable sum of money.
13. The judge went on to cite a passage from R v Green [2007] 3 All ER 751 where this court said:

"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.

14. Mr Trafford QC for the appellant put forward to us grounds which represented a degree of refinement from the written materials submitted. In accordance with the approach indicated by Lord Bingham in R v May [2008] 2 Cr App R 28 at [48], he submitted that there were three questions to be addressed: (i) has the defendant benefited from the relevant criminal conduct, (ii) how is any benefit to be quantified, and (iii) what sum is recoverable. As to (i), it was not contested that the defendant had benefited from his criminal conduct. As to (ii) the quantification of benefit, he submitted that the recorder fell into error in making a finding that the appellant had purchased, or at least contributed to, the purchase of the drugs which were the subject of his conviction. There was no evidence upon which he could have made such a finding and, indeed, the Crown had not put its case on that basis.
15. If this proposition was accepted, it would have an impact on the confiscation exercise because if the appellant was a purchaser of the drugs he would automatically come within the terms of section 76(4) of POCA which provides that "a person benefits from conduct if he obtains property as a result of or in connection with the conduct." Mr Trafford submitted that, if the appellant was not a purchaser of the drugs, it did not necessarily follow that section 76(4) was satisfied in relation to them or their value. In this context, he placed reliance on the decision of this court in R v Clark and Severn [2011] 2 Cr App R (S) 55. On the particular facts of that case, the court held that the appellant Clark was capable of being regarded as a bailee of vehicles involved in the conspiracy as opposed to "an equity partner". In the former case, Clark would not have obtained the property within section 76(4). The confiscation order was quashed and the matter remitted to the Crown Court for further consideration in the absence of a clear finding as to the capacity in which Clark had received the property. Mr Trafford sought to draw an analogy with this appellant's position. He presented the appellant as someone who was merely concerned with transportation and that in reality he had no control or power of disposition over the drugs. He relied on [48(6)] of Lord Bingham's speech in May:

"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."

16. Mr Mitchell QC for the Crown resisted that submission. He submitted that the decision in Clark was clearly factually different to the present case and that this appellant's actions had clearly gone beyond those of a mere bailee. We agree. Mr Mitchell had rightly accepted that the Crown had never contended that this appellant had purchased the drugs and that there was no evidence before the judge to enable him to draw such a conclusion. However, it is clear to us that there was ample evidence before the court to demonstrate that this appellant had "obtained" the drugs within the meaning of section 76(4) even if he had not contributed to their purchase. It is clear to us from a consideration of the activities of this appellant as set out above that he was not to be regarded as a mere custodian of the drugs. There was, in our judgment, extremely strong evidence of control and a right of disposition in relation to the drugs.
17. We note that in R v Ahmad and another [2014] UKSC 36, the principal judgment of Lord Neuberger and others comments between [41] and [48] upon the passage we have cited from Lord Bingham in May. It is clear that the word "obtain" is to be given a broad, normal meaning with the court being entitled to rely on common-sense inferences, in which the role of a particular conspirator may be relevant as a matter of fact. Clearly every case will be fact- sensitive, but on the basis of the extensive role of this appellant in the drugs conspiracy and, in particular, his central involvement in the transportation and proposed delivery of the drugs with significant managerial and operational control over the exercise, we are satisfied that the only sensible conclusion which could be reached on the facts is that this appellant "obtained criminal property" for the purposes of section 76(4) and thus has benefited from his criminal conduct in respect of the drugs.
18. We note, additionally, that the appellant's previous counsel acknowledged at the hearing below and in his grounds of appeal that the appellant's benefit figure should include the value of the drugs. We do not consider that such a concession was incorrect, nor, in the circumstances, is there any other reason which would permit its withdrawal. That concession confirms the conclusion to which we have come based on a consideration of the evidence.
19. We go on to note that in Waya the majority judgment of the Supreme Court stated at [55(a)]:

"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.

20. In addition, there was some faint criticism of the valuation of the drugs at £2.947 million by the judge. The judge had formed conclusions as to the drugs' value based on the middle of a range of the costs of purchase. We do not think his approach can be faulted. Indeed, such an approach was conservative and highly favourable to this appellant. By the time the drugs were approaching the UK shores, their wholesale value would have greatly exceeded that amount, probably in the region of £60 million. Accordingly, although we have found that the judge was in error to make a finding that the appellant had purchased or contributed to the purchase of the drugs, we are satisfied that there was, for the reasons given, no error in his inclusion of their value in the global sum representing the benefit obtained from criminal conduct, namely £3.6 million.
21. The next, and stronger, argument advanced for the appellant moves on to consider the quantification of the available or recoverable amount. It is submitted that that should not have included the assessed value of the drugs since they had been seized by the Irish authorities. The inclusion of this sum distorted a proper consideration of the available assets in a way highly unfavourable to the appellant.
22. It is clear from the judgment below that, once the judge had rejected the essence of the appellant's evidence concerning his available or realisable assets he moved automatically to a finding that the available and recoverable amount must be the same as the benefit figure. It would seem that he was influenced to take this course by reference to the passage of this court's judgment in the case of Green as cited above. Mr Trafford contended that this was an incorrect approach and that the mere fact of rejection of the appellant's case did not absolve the judge from a sensible consideration of the available evidence. In this context he relied on the decision of this court in R v McIntosh [2012] 1 Cr App R (S) 60. At [15] Moses LJ said;

"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."

23. In particular Mr Trafford pointed to the fact that the cargo of drugs had been seized by the Irish authorities and so no longer represented assets available to the appellant; they had plainly played a major role in determining the overall benefit figure of £3.6 million when in fact they should not have done so. The judge's approach to the question of the benefit figure had been insufficiently rigorous.
24. Mr Mitchell did not dispute that McIntosh represented a correct approach. It was wrong for a judge to make a leap from rejecting a defendant's account as to his assets to concluding necessarily that the available amount should equate to the amount of benefit. In the situation where the drugs had been seized the judge should have looked for evidence to show that the appellant had available assets. There was room for a conclusion in this case that, in addition to such assets as the judge found were in fact available, the judge could conclude that there was in addition the value for hidden assets to be taken into account. After rejecting the appellant's evidence, the judge was entitled to take a broad brush approach. In this case, there was evidence of an affluent lifestyle which could have justified a finding of hidden assets, but it was acknowledged that the judge's approach had failed to assess the matter on the whole of the evidence, knowing that the drugs had been seized so that they were no longer available to the appellant. There had been an insufficiently careful analysis and it was conceded that this had led to an overstatement of an appropriate benefit figure.
25. We consider that the submissions of Mr Trafford and the concessions made by Mr Mitchell as to the flaws in the judge's ruling were broadly correct. The passage cited from Green has been superseded by developments in the case law and the more nuanced approach of McIntosh is the correct one. When the issue of available assets was being considered, the rejection of the appellant's claims of impecuniosity did not bring the inquiry to a close since there was other evidence before the court. That evidence showed that, in fact, the substantial value of the drugs was no longer available to this appellant to realise.
26. Section 9(1) of SOCA provides:

"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.

27. In R v Thacker [1995] 16 Cr App R (S) p461 the court held that where drugs had been seized from a defendant by Customs and Excise they were not property held by a defendant for the purposes of calculating the recoverable amount. In R v Islam [2010] 1 Cr App R (S) 42 the speech of Lord Mance at [34], [37] and [44], with which the majority agreed, makes plain that a clear distinction is to be drawn between the time and circumstances in which an assessment of value for the purpose of calculating benefit is made as against the time and circumstances for an assessment of value for the purpose of calculating the available or recoverable amount.
28. More recently this court in R v Kakkad [2015] EWCA Crim 385 considered and endorsed the position at [21]-[32]. The latter paragraph contained the proposition:

"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."

29. We note that at [34] of Islam, Lord Mance commented that where HMRC have seized goods forfeiture is automatic, and in that case the goods will no longer be property held by the defendant at the time of a confiscation order. He went on to say that in other cases the confiscation order would precede any order for forfeiture under the Misuse of Drugs Act so that the drugs would continue in law to be "free property then held by the defendant" at the time of the confiscation order, even though physically in the possession of the authorities and destined to be the subject of a forfeiture order. Here the drugs were seized by the Irish Navy and thus do not fall within the first part of Lord Mance's comments. However, the situation does not cause difficulty since, as Lord Mance went on to point out, in such circumstances it would be impossible to regard the drugs as having any market value for the purpose of assessing the available amount. They would not ever be bought or sold on any market, legal or otherwise.
30. For these reasons we are satisfied that the judge moved too precipitately from a rejection of the appellant's evidence to an inclusion of the value of the drugs in the available amount. In truth, once the drugs had been seized they no longer represented an asset of any value held by, or available to, the appellant.
31. Although this conclusion undoubtedly has an impact upon the correct assessment of the available amount, the matter is not necessarily to be disposed of simply by deducting the value attributed to the drugs from the overall benefit figure. There are other considerations in play to which we will return after a consideration of a further point taken on behalf of the appellant.
32. This relates to the judge's treatment of the appellant's interest in the Spanish property referred to at [9] above. Mr Trafford's submission was that the judge had approached the question of the Spanish property in an incorrect manner. The appellant's partner was the registered owner of the property and the judge made a number of findings of fact which are relevant. The appellant's partner had not commenced a serious relationship with him until 2004. Prior to that time, she had taken steps to purchase the Spanish property which was to be built to her requirements. She had made substantial down payments which appear to have exceeded €250,000 prior to the commencement of her relationship. The purchase was completed later in 2014 for about €649,000 with the aid of an interest only mortgage in the sum of about €400,000. When the purchase was completed the appellant moved into the house with her.
33. The judge had seen details of the appellant's partner's income and concluded that her income was insufficient to service the mortgage repayments. The judge therefore concluded that the mortgage on the property must have been repaid by substantial contributions if not exclusive payments by the appellant. The judge found on the basis of the Spanish lawyer's opinion that that would give rise to a reclaimable personal loan and that since the appellant had no legitimate sources of income any payments made by him would have been from the proceeds of crime. Those mortgage repayments would have been payable from the time of completion of the house purchase which took place in October 2004.
34. The judge said that he was satisfied that the appellant was not married or in any legally recognised civil partnership with his partner and stated that the opinion of the Spanish lawyer that he would have no recognisable legal or equitable interest in the property might well be correct. The judge went on to say that where a defendant had made a tainted gift after the commission of an offence the court considers it appropriate to take that gift into account. The property can be treated as that of the defendant and realisable for the purposes of a confiscation order. The judge continued:

"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."

35. Mr Trafford contended that, contrary to the judge's conclusion, Spanish law should apply in determining whether the appellant had an interest in this property, i.e. the lex situs. In this case the Spanish lawyer's opinion had been clear. The appellant's contribution to mortgage repayments would be deemed as a private loan and would not confer ownership rights. In the absence of marriage or a registered civil partnership such payments would not confer such rights. In essence, therefore, the appellant's partner was the legal and equitable owner of the property under Spanish law. A separate argument challenged the judge's conclusion that the partner would not have had the means to make the mortgage repayments. As to that latter point, we are unconvinced, the judge made an assessment on the evidence before him with which we do not consider it appropriate to interfere.
36. For the Crown, Mr Mitchell contended that there was no need in fact for a consideration of what the position was under Spanish property law. The judge had approached the matter from the wrong perspective. There was no evidence of the appellant having contributed to the lump sums paid as part of the purchase price of the property. Indeed, the evidence showed that those payments had been made by the partner at a time before the judge had found that any serious relationship existed between the pair. That left the mortgage payments. The judge had found that the appellant must have made those payments on the basis that the partner had no ability to meet them. That was a sustainable finding and should have led the judge to consider the tainted gifts provisions under sections 77 and 78 of POCA. Application of section 77(1)(b) and 77(2) should have led to a finding that the mortgage repayments were tainted gifts since, applying section 78(1), there was no evidence that the mortgage repayments had been made for a consideration; indeed, the appellant in his witness statement had said that they did not represent rent on his part. The judge should have calculated the value of the repayments, adjusted that value for inflation, and treated it as part of the available sum pursuant to section 9(1)(b). None of that required any consideration of Spanish law in order to determine whether a beneficial interest had been acquired in the property. It simply required an application of POCA. On the materials available the interest payments were at the rate of €2,000 per month and had been made over a period of 6 years, giving a total of €144,000 to which an allowance to represent the change in the value of money should be added. This sum should have formed part of the calculation of the available amount.
37. Both parties, therefore, were critical of the judge's approach and we have to say that we did not find the judgment easy to follow in relation to the matter of the Spanish property. We consider that the argument advanced by Mr Mitchell in approaching the matter by reference to the tainted gifts provisions was the correct one. Mr Mitchell has not attempted to support the approach of the judge which was to attempt to assess beneficial interest in the property by reference to the mortgage repayments, notwithstanding the judge's conclusion that the Spanish lawyer's evidence that the appellant would have no recognisable legal or equitable interest in the partner's property might well be correct. It follows therefore that the inclusion of a 50 per cent beneficial interest in the value of the Spanish property by the judge was wrong since it exceeds by some margin the value of the tainted gifts, and since there was no firm basis for such an assessment.
38. We have, thus far, come to conclusions which show that in significant respects the judge's approach to the question of the recoverable or available amount was seriously flawed in a way which resulted in an excessive confiscation order being made. Sections 11(3) and (3A) of the Criminal Appeal Act 1968 enable this court, where it quashes a confiscation order, either to make such order as it thinks appropriate for the case, or to remit the matter for a fresh hearing before the Crown Court. Mr Trafford invited us to take the latter course, Mr Mitchell, the former. We consider that it is appropriate to deal with the matter in this court as the facts are sufficiently established so as to enable us to do so. An important consideration for us in deciding to deal with the matter in this court has been that there was no real issue between the parties as to what the appellant's lifestyle was; the issue below related to how it was funded, (the judge holding that the source of the funds was not legitimately acquired funds, but the fruits of a criminal lifestyle).
39. Our assessment of the position must recognise the fact that the value of the seized drugs is to be left out of account. On the other hand, the judge made a series of findings showing that the appellant had led what can be described as a cash lifestyle which had enabled the purchase of cars, property in Thailand, boats, expensive watches and an expensive hotel stay amongst other things. The nature of the appellant's activities, in which the judge found he made very significant efforts to live in a way which did not leave a document trail, in our view also leads to the inference that the appellant had had and has significant amounts of cash available to him. We bear in mind that it is for a defendant to show on a consideration of the whole of the evidence that the available amount is less than the benefit figure.
40. It is of note that the judge's finding was that the only available assets that had specifically been identified apart from the Spanish property was cash, premium bonds and a small amount in an account totalling about £1,400.00. To this he would have been entitled to add the value of the mortgage repayments uplifted for inflation. In the absence of precise detail we shall take a conservative value of €165,000.00 to represent the updated value of the tainted gifts. Applying the currency conversion rate adopted by the judge this gives s figure of about £135,000.00.
41. We are satisfied that, given the judge's findings as to the nature and the level of the appellant's cash lifestyle which was entirely justified on the evidence, we are entitled to come to the conclusion that at the time of the hearing there remained available to this applicant substantial hidden assets which should be taken into account in the section 9 calculation, in addition to the value of identified assets and tainted gifts. Where a defendant's evidence has been rejected he will naturally be in a disadvantageous position, but as McIntosh shows, that does not relieve the court of the obligation to come to a just and proportionate view based on the whole of the evidence.
42. The reality of the position here is that the Crown had never contended that this appellant had available assets on the scale which was found by the judge. It was the judge's error in taking into account the value of the drugs as approaching £3 million which had led to the overall order in the sum of £3.6 million. The evidence properly available to the judge simply did not warrant a conclusion resulting in a liability of that order. Mr Mitchell for the Crown acknowledged as much. He submitted that having regard to the findings as to the appellant's lifestyle, and taking into account the value of the tainted gifts, this court could properly find that there was an available or recoverable amount in the sum of about £1 million. We consider that that was an overestimate based on our assessment of the evidence of this appellant's lifestyle which underpins the finding that he has available hidden assets.
43. On the basis of the evidence we think that a fair and proportionate conclusion is that overall, and taking into account the tainted gifts and the £1,400.00 value of specifically identified assets, the value of available assets is no less than £500,000.00. This appellant has in our judgment failed to demonstrate on the balance of probabilities that the available assets was any less than that sum. Since that sum is less than the benefit figure of about £3.6 million identified by the judge, by virtue of section 7(2) the recoverable amount under the confiscation order is the sum of £500,000.00.
44. For the reasons given this appeal is allowed. The confiscation order in the sum ordered below is quashed and in its place we substitute the sum of £500,000.00. This also requires an alteration of the term of imprisonment to be served in default of payment. We allow a period of 6 months in which the payment is to be made. We fix the term to be served in default at 5 years instead of the 7 years imposed below. To that extent this appeal is allowed.