London, WC2A 2LL
B e f o r e :
MR JUSTICE JULIAN KNOWLES
HIS HONOUR JUDGE LODDER QC
(Sitting as a Judge of the CACD)
|R E G I N A|
Mr A Wallace appeared on behalf of the Crown
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LORD JUSTICE TREACY:
(i) That £2.34 million had passed through the appellant's hands in cash and that the appellant had not explained what he had done with it despite the burden being on him to establish that he no longer had it.
(ii) The appellant was close to the source of importation and a Lithuanian national. It would not be difficult for him to find a hiding place for the money in Lithuania or indeed elsewhere in the world. There was evidence that he had had a Lithuanian bank account in 2011 and that he had owned property there. The appellant had given no evidence as to his present assets in Lithuania or elsewhere or any evidence as to what had happened to the real property he had owned in Lithuania.
(iii) There was evidence of a cash-rich lifestyle, leading to an inference that he had a significant fund of cash available which could not be traced. There was evidence of cash transfers of sums to his wife's account, evidence of undocumented share purchase and trading and evidence of a car purchased for cash. There were no equivalent withdrawals from any of the appellant's known bank accounts.
(iv) Despite his cash-rich lifestyle the appellant had declared no legitimate income for some time. His wife had only modest income from her employment. Indeed she was receiving tax credits. She therefore could not have supported the appellant's cash lifestyle.
(v) The judge rejected a defence assertion that the appellant's apparent bank overdrafts meant that he did not have hidden assets.
"In the light of Glaves and May 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 the 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.71(6) 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."
"The judge concluded that he was not satisfied that Marsden no longer held such property there or elsewhere. He found that the value of what he has abroad is totally unknown. This was a crucial finding. Once the judge had reached that conclusion, there was no basis on which he could conclude that the value of Marsden's realisable property was less than the value of his benefit, in the light of Marsden's role in so lucrative a conspiracy. There was no justification for valuing his available assets as being less than the full value of the benefit, even accepting the modest style in which he lived."
"The legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means ... The benefit gained is the total value of the property or advantage obtained, not the defendant's net profit after deduction of expenses or any amounts payable to co-conspirators."
In this case, as we have observed, there was no challenge to the judge's quantification of benefit nor could there have been since the judge applied correct principles.
"No doubt a different scheme could have been prescribed, and one such might have involved calculation of retained benefit. In some countries schemes for the confiscation of criminal proceeds do follow this approach, notably those which rely upon tracing and recovering specific property. The UK system does not. It depends upon ascertaining the value of what was obtained, and then recovering not specific property but, rather, that sum. Having obtained such a sum through crime, the defendant is expected to surrender it from any assets which he holds, whether they were legitimately or criminally acquired. That, as Lord Bingham observed in May at para 46, involves no injustice or lack of proportionality."
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