ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
HH Judge Griffith
T20077594 and 20147222
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GOSS
HER HONOUR JUDGE TAYTON QC
(sitting as a Judge of the Court of Appeal Criminal Division)
Adrian Donald Cole
Barry Smith for the Respondent
Crown Copyright ©
Lord Justice Simon:
The 2009 Order
… if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.
There the matter would have stood had the [appellant], upon his release from the 6-year prison sentence passed at Isleworth, not committed further [drug trafficking] offences.
The s.22 application
Order made: reconsideration of available amount
(1) This section applies if -
(a) a court has made a confiscation order,
(b) the amount required to be paid was the amount found under section 7(2), and
(c) an applicant falling within subsection (2) applies to the Crown Court to make a new calculation of the available amount.
(2) These applicants fall within this subsection -
(a) the prosecutor;
(3) In a case where this section applies the court must make the new calculation, and in doing so it must apply section 9 as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation.
(4) If the amount found under the new calculation exceeds the relevant amount the court may vary the order by substituting for the amount required to be paid such amount as -
(a) it believes is just, but
(b) does not exceed the amount found as the defendant's benefit from the conduct concerned.
It seems to me that Mr Furlong has a valid argument that I should consider myself limited to the 'Waya-compliant' amount of [£143,000].
In my view, bearing in mind the history of this matter, I do not consider that there will be substantial injustice to the defendant if I consider the original benefit figure rather than the reduced benefit figure. In any event, bearing in mind the submissions made by the defence, I do not consider that making an order in the sum sought by the Crown will be unjust and am prepared to make such an order.
The 2017 Order in relation to the 2014 conviction