The defendant had defrauded women of in excess of pounds 500,000. He admitted dishonesty. The court ordered confiscation under the 1988 Act, with the benefit assessed as that figure, adjusted to pounds 600,000 to allow for the return he should have made. No assets were traced, and the police said that he had hidden it, since he did not appear to have lived extravagantly or spent large sums of money. The appellant said he had gambled it away, but gave no evidence of this. His evidence was found evasive but the benefit figure was reduced by pounds 150,000 as an acknowledgement that some of the money had probably been spent over the years. He appealed contending that the judge had been wrong to place the burden on the appellant to establish that his realisable assets were less than the amount of the benefit.
Held: Where an application for a confiscation order was being resisted, the onus of proving the ‘benefit’ obtained is first upon the prosecution. The burden then lay on the defendant to establish to the civil standard, that he had no realisable assets and how the proceeds of the criminal activity were no longer available. The Act requires two distinct tasks. To determine the benefit, and then determine the amount that might be realised. The amount may be quite unrelated to the identifiable proceeds of the offence, eg a lottery win, inheritance, or other lawfully acquired property. The task of the court at the second stage is to determine the amount ‘appearing to the court’ to be the amount that might be realised. But once the benefit has been proved, it is permissible and ought normally to be the approach of the court, to conclude that the benefit remains available until the defendant proves otherwise; subject to the issue of changes in the value of the money.
‘it is likely that an offender may take steps to make the proceeds of crime difficult to trace. Once it is proved that he has received the benefit, it is pragmatic, and entirely fair to the defendant, to place upon him the onus of showing (to the civil standard) that he no longer has the proceeds or that their extent or value has diminished’ and ‘We stress that the scheme of the Act requires the court to perform two distinct and discrete tasks. First, to determine the benefit. Secondly, to determine the amount that might be realised at the time the order is made, which may be very different. Further, the amount that might be realised may be quite unrelated to the identifiable proceeds of the offence, e.g. a lottery win, inheritance, or other lawfully acquired property. In the end, the task of the court at the second stage is to determine the amount ‘appearing to the court’ to be the amount that might be realised. But once the benefit has been proved, it is permissible and ought normally to be the approach of the court, to conclude that the benefit remains available until the defendant proves otherwise . .’
Judges:
Judge LJ, Holman, Andrew Smith JJ
Citations:
Times 10-Nov-2000, [2001] 1 Cr App R (S) 445, [2000] EWCA Crim 3551, [2001] Crim LR 52, [2001] 1 Cr App R (S) 129
Links:
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Grayson and Barnham v The United Kingdom ECHR 23-Sep-2008
Each applicant had been subject to confiscation in criminal proceedings relating to drugs offences. They complained that the legislation had reversed the burden of proof.
Held: ‘it was not incompatible with the notion of a fair hearing in . .
Cited – Mcintosh and Another v Regina CACD 22-Jun-2011
The appellants argued that the court had misdirected itself in law when concluding that neither appellant had satisfied him that the amount that might be realised at the time he made the confiscation orders was less than the agreed amount of . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Criminal Sentencing
Updated: 26 March 2022; Ref: scu.431642