Neutral Citation No:  NICA 5
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
DEENY LJ (delivering the judgment of the court)
"The defendants Grew and [the third co-accused, Abernethy] were present at the time of the recovery of the items. The matter is put forward on the bases that neither was an importer or organiser in respect of the matter but were present at the time the contraband was recovered. McLaughlin on the other hand was not present. It is the case that is (sic), that the lorry which carried the contraband had stopped at his premises earlier in the day. He was not present when the lorry called at his premises but then connections were made between the contraband and McLaughlin and eventually that led to searches which led to the recovery of other items which it is agreed were the proceeds of criminal, were in fact criminal property."
"39. Mr McLaughlin's offence took place after the coming into force of the Proceeds of Crime Act 2002 (POCA). Section 156(4) (a) and (c) provide that if a defendant has been convicted of an offence before the Crown Court, it must be determined whether he has a criminal lifestyle. If it is not concluded that he has such a lifestyle (and that was the position in relation to all the appellants in this appeal) the court must decide whether the convicted person has benefited from his particular criminal conduct. If it is determined that he has so benefited, the court must decide on the recoverable amount, and make an order (a confiscation order) requiring him to pay that amount.
40. The recoverable amount for the purposes of section 156 is an amount equal to the defendant's benefit from the conduct concerned: section 157(1). But by section 157(2), if the defendant shows that the available amount (as defined in section 159) is less than the recoverable benefit, the recoverable amount is the available amount, or a nominal amount, if the available amount is nil. This is the provision by which one of Mr McLaughlin's co-accused had the recoverable amount in his case fixed at nil."
"67. The Court of Appeal in the present case did not examine the evidence with a view to ascertaining whether the appellants could be shown to have had possession of the cigarettes in such a way as is contemplated by the legislation. Before a confiscation order could be made in any of the appellants' cases, such an examination must take place. In its absence the Court of Appeal's decision cannot be upheld. Furthermore, the court's conclusion that the appellants could be considered to have obtained a benefit simply because they admitted participation in a joint criminal enterprise cannot, in the light particularly of the decisions in Sivaraman and Allpress, be accepted.
68. I would therefore answer the second certified question, "Not necessarily. Playing an active part in the handling of goods so as to assist in their commercial realisation does not alone establish that a person has benefited from his criminal activity. In order to obtain the goods for the purposes of section 156 of POCA 2002 or article 8 of the Proceeds of Crime (Northern Ireland) Order 1996, it must be established by the evidence or reasonable inferences drawn therefrom that such a person has actually obtained a benefit."
69. On an appeal against sentence the Court of Appeal has power under section 10(3) of the Criminal Appeal (Northern Ireland) Act 1980 to quash the sentence passed by the Crown Court and pass such other sentence as is authorised by law. Section 10(3A) of the 1980 Act (as inserted by the Coroners and Justice Act 2009, section 141(2)) provides that where the Court of Appeal exercises its power under subsection (3) to quash a confiscation order, the court may, instead of passing a sentence in substitution for that order, direct the Crown Court to proceed afresh under the relevant enactment. Section 33(3) (as substituted by the Constitutional Reform Act 2005, section 40, Schedule 9, para 33(4)(b)) provides that, for the purpose of disposing of an appeal under this Part of the Act, the Supreme Court may exercise any powers of the Court of Appeal. I would therefore quash the confiscation orders and remit the cases to the trial courts to proceed afresh in light of this judgment."
Grounds for leave to appeal or appeal of Henry Patrick McLaughlin
"I am satisfied on the balance of probabilities that each defendant did obtain the cigarettes and benefited to the value of the cigarettes. I will give my reasons for reaching that conclusion in writing in due course but for present purposes we can proceed on that basis, Mr McDowell and I think we will move on to consider what is the value."
"Mr McNamee, [I have made a decision about that] which is that I have drawn an inference about it which to my mind is consistent, to your mind it is not but to my mind it is consistent with what was found before. Now, you may be able to persuade the Court of Appeal otherwise."
This appellant therefore argues that the order based on this finding is unlawful as based on unproved documents and without the appellant having an opportunity to give evidence.
McLaughlin: s 160A Proceeds of Crime Act 2002.
Delay – McLaughlin
Grounds for leave to appeal and appeal of Aidan Grew
Section 160A, Proceeds of Crime Act 2002
Grounds 1 and 2 of Grew's Notice of Appeal
"The court must decide any question arising under subsection (4) or (5) on a balance of probabilities."
Mr Southey's submission is that notwithstanding that provision the court must apply the criminal standard of proof beyond reasonable doubt in ascertaining the underlying criminal conduct of the defendant before moving on to the other issues under Section 156 which are decided on the balance of probabilities.
"That the learned trial judge erroneously made findings about the defendant's criminal conduct on the basis of inadequate and insufficient evidence."
"A person benefits from conduct if he obtains property as a result of or in connection with the conduct."
"(i) Mr Grew was present at the time the cigarettes were seized.
(ii) Mr Grew had had telephone contact with Mr McLaughlin.
(iii) That there existed a single sheet of paper with various brands of cigarettes on it.
(iv) That there was an effort to destroy this piece of paper by Mrs Grew.
(v) That the cigarettes were seized and subsequently destroyed by the Police.
(vi) Mr Grew pleaded guilty to being knowingly concerned in the fraudulent evasion of duty."
Response of Crown regarding McLaughlin and procedural irregularity.
Response of the Crown regarding Section 160A POCA
Response of Crown on delay regarding McLaughlin
"A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement."
He referred the court to the leading authorities in this matter including R v Soneji  1 AC 340 and R v Guraj  1 WLR 37.
Submissions on behalf of the Crown on Grounds 1 and 2 of Grew's appeal
"He was not the organiser or the manager or the importer. He was at worst a facilitator to a limited extent in respect of the contents of the lorry."
Conclusion of Court on McLaughlin and procedural irregularity.
Conclusions on McLaughlin and s. 160A POCA
"S160A Determination of extent of defendant's interest in property
(1) Where it appears to a court making a confiscation order that –
(a) there is property held by the defendant that is likely to be realised or otherwise used to satisfy the order, and
(b) a person other than the defendant holds, or may hold, an interest in the property,
the court may, if it thinks it appropriate to do so, determine the extent (at the time the confiscation order is made) of the defendant's interest in the property.
(2) The court must not exercise the power conferred by sub-section (1) unless it gives to anyone who the court thinks is or may be a person holding an interest in the property a reasonable opportunity to make representations to it.
(3) A determination under this Section is conclusive in relation to any question as to the extent of the defendant's interest in the property that arises in connection with –
(a) the realisation of the property, or the transfer of an interest in the property, with a view to satisfying the confiscation order, or
(b) any action or proceedings taken for the purposes of any such realisation or transfer.
(5) In this part, the "extent" of the defendant's interest in the property means the proportion that the value of the defendant's interest in it bears the value of the property itself."
"In relation to the right to respect for private and family life and home the applicant refers to the property at [address] as the family home which will have to be sold to realise the available amount for the purposes of the confiscation order. This property is home to McLaughlin and his wife and their 6 year old grandchild …"
"The court must not exercise the power conferred by sub-section 1 unless it gives to anyone who the court thinks is or may be a person holding an interest in the property a reasonable opportunity to make representations to it."
"(11) A confiscation order must not be quashed only on the ground that there was a defect or omission in the procedure connected with the application for or the granting of a postponement."
"However, that may be, section 14(11) does contain a prohibition: it says that the court must not quash a confiscation order only on the grounds of procedural defect or omission connected with postponement."
The emphasis is that of Lord Hughes, consonant with our earlier observations.
Conclusion on delay regarding McLaughlin
"What, then, is the answer to the question: "If section 14(11) is unavailable, when does a procedural error prevent the making of a confiscation order, or invalidate such an order if it is made?" Consistently with Soneji and with the dominant purpose of POCA that confiscation is the duty of the court, to which a significant priority is to be given, the answer is not that every procedural defect does so. The correct analysis is not that a procedural defect deprives the court of jurisdiction, which would indeed mean that every defect had the same consequence. Rather, it is that a failure to honour the procedure set down by the statute raises the very real possibility that it will be unfair to make an order, although the jurisdiction to do so remains, and that unless the court is satisfied that no substantial unfairness will ensue, an order ought not to be made. This is not to deprive section 14(12) of effect; it remains effective to remove the peremptory bar of section 14(11) upon quashing confiscation orders on grounds only of procedural defect connected with postponement. Where section 14(11) applies, no such defect can alone justify quashing. Resulting unfairness, on the other hand, may, but such unfairness cannot be inferred merely from the procedural breach. Where section 14(11) does not apply, a procedural defect, not limited to postponement, will have the effect of making it wrong to make a confiscation order if unfairness to the defendant would thereby ensue. If, however, the defect gives rise to no unfairness, or to none that cannot be cured, there can be no obstacle to the making of the order, and this is what the duty of the court under POCA requires. The present case is one where no unfairness can be or is suggested; cure does not arise. If it were to arise, in another case, it is possible that there might be ways in which a potential unfairness could be cured. They might include, for example, determining in accordance with R v Waya  UKSC 51;  1 AC 294, that the confiscation order must be adjusted to achieve proportionality. In a few instances, it might be possible to vary an inadvertently imposed sentence within the 56 days permitted by section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. In others, the correct outcome may be that it is the forfeiture order which ought to be quashed, by way of appeal, rather than the confiscation order; priority for the latter is after all built into POCA. Each case, however, must depend on its own facts."
Conclusions on Grounds 1 and 2 of Aidan Grew's appeal
"45. The basic point made by Lord Bingham, and discussed in paras 41-42 above, therefore appears to us to be, to put it at its lowest, sustainable, given the statutory language, which is not concerned with ownership but with obtaining. As just demonstrated, it is perfectly acceptable, as a matter of ordinary language, to describe the people involved in a criminal joint enterprise which results in the obtaining of a chattel, cash, a credit balance or land, as having jointly obtained the item concerned, in the sense of having obtained it between them. The fact that the item may have been physically taken or acquired by, or held in the name of, one of them does not undermine the conclusion that they jointly obtained it. The word 'obtain' should be given a broad, normal meaning, and the non-statutory word 'joint', referred to by Lord Bingham in May, paras 17 and 27-34, should be understood in the same nontechnical way.
46. Accordingly, where property is obtained as a result of a joint criminal enterprise, it will often be appropriate for a court to hold that each of the conspirators 'obtained' the whole of that property. That is the view expressed in May, para 48(6), first sentence (although the word 'owns' is probably inappropriate), in Green, para 15, and in Allpress, para 31 (as quoted and approved in Mackle, para 65). However, that will by no means be the correct conclusion in every such case.
47. As was said in Sivaraman, para 12 (6) and in Allpress, paras 30-31 (and approved in Mackle, paras 64-65), when a defendant has been convicted of an offence which involved several conspirators, and resulted in the obtaining of property, the court has to decide on the basis of the evidence, often relying on common sense inferences, whether the defendant in question obtained the property in the sense of assuming the rights of an owner over it, either because he received it or because he was to have some sort of share in it or its proceeds, and, in that connection, 'the role of a particular conspirator may be relevant as a matter of fact, but that is a purely evidential matter'.
48. In some cases, one or more of the conspirators may be able to show that he was only involved to a limited extent, so that he did not in any way obtain the property which was obtained as a result of the crime. Examples include acting as a paid hand in the enterprise – eg an intermediary, a courier or a drugs 'mule' (as considered in May, paras 15 and 17, and in Allpress, paras 80-82) or a latecomer to a conspiracy in which nothing was obtained after his arrival (as discussed in May, para 19)."
"Thus 'benefit' is a fact sensitive issue. Lord Kerr in Mackle stated that there were two assumptions that must be guarded against. First, it is not to be assumed that because one has handled contraband one has had possession of it in the manner necessary to meet the requirements of the relevant legislation. Secondly, participation in a criminal conspiracy does not establish that one has obtained the benefit – as Toulson LJ said (in R v Allpress  EWCA Crim 8) this is to confuse criminal liability with resultant benefit (paragraph )."
This quotation suffices to dispose of part of the argument on behalf of this appellant i.e. that the judge's conclusion was made on an assumption on the basis of handling. He was clearly alert to that not being the proper approach. He went on to address the nature of the benefit that these appellants received by way of their pecuniary advantages in obtaining lower price cigarettes, in not paying duty and VAT, in physically having the cigarettes in their possession and potentially obtaining monetary payment for them and, in the case of McLaughlin, receiving an actual payment.
" Grew was sentenced on the basis that, while he was present at the time the contraband was recovered, he was not an organiser or a professional smuggler but at worst a facilitator, to a limited extent, in respect of the contents of the lorry.
 Grew admitted being concerned in the evasion of duty payable on the cigarettes. He was present, facilitating the movement of the cigarettes. In his home were records of brands of cigarettes and numbers which his wife thought appropriate to attempt to destroy. A defendant may obtain the cigarettes in the sense of assuming the rights of an owner over them, either because he received the cigarettes or because he was to have some sort of share in them or the proceeds.
 I am satisfied on the balance of probabilities from Grew's presence with the cigarettes and the lorry in the yard and from the particulars of cigarettes recovered in the search of his home that he was engaged with others in the distribution of the cigarettes so as to have the necessary possession and control of the cigarettes. I am satisfied that this conclusion is consistent with the basis of plea and sentencing that he was not concerned with the importation and was not an organiser and was not a professional smuggler."
 The role of an appellate court in dealing with appeals from the court at first instance has been the subject of consideration in the Supreme Court in several recent cases. We note the judgment of Lord Reed delivering the judgment of the court in Henderson v Foxworth Investments Limited and Another  1 WLR 2600;  UKSC 41; at paras  and :
'66. These dicta are couched in different language, but they are to the same general effect, and assist in understanding what Lord Macmillan is likely to have intended when he said that the trial judge might be shown "otherwise to have gone plainly wrong". Consistently with the approach adopted by Lord Thankerton in particular, the phrase can be understood as signifying that the decision of the trial judge cannot reasonably be explained or justified.
67. It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified."
 This dictum was cited with approval in Carlisle v Royal Bank of Scotland  UKSC 13 at paras  and  and by Gillen LJ in this court in H v H  NICA 77. See also DB v Chief Constable of PSNI  UKSC 7 at paras  to .