The benefit from criminal activity had been pounds 396,000-odd and the Crown had been able positively to prove realisable assets worth pounds 214,000-odd in the hands of the defendant.
Held: Taylor LJ considered the terms of section 4(3): ‘If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of his proceeds of drug trafficking, the amount to be recovered in the defendant’s case under the confiscation order shall be the amount appearing to the court to be the amount that might be so realised.’ and said: ‘It is accepted that that sub-section puts the burden upon the defence to satisfy the court that the amount that can be realised is less than the amount of the value of the proceeds.’ and: ‘[Counsel for the defendant] (..has submitted that as the figure of pounds 214,000 odd is agreed to be that amount which the Crown can prove, the court ought to have accepted, on a balance of probabilities, that that amount was the amount it should regard as being the amount capable to be realised under section 4(3) and ought therefore to have made the confiscation order in that amount. He put it on this basis, that if the Crown put that figure forward and the defence agree it, then why should the court not accept it?
In our judgment that is a misconception. The Crown were not putting this figure forward for agreement as the amount realisable; all they were doing was putting it forward as the amount that they were able actually to prove without conceding that it was all that was realisable. If the appellant wished to say that that was all that was realisable, then it was for him to satisfy the court to that effect. He did not do so, either by seeking to call evidence or by putting in any statement which the Crown might or might not have agreed. Accordingly the court was left without anything to put against the figure of pounds 396,000. Accordingly the learned judge made an order in that amount. In our judgment he acted perfectly properly and no criticism can be made of the confiscation order that he made.’
Judges:
Taylor LJ
Citations:
(1990) 12 Cr App R(S) 398
Statutes:
Drug Trafficking Offences Act 1986 4(3)
Jurisdiction:
England and Wales
Cited by:
Approved – Regina v Rees 19-Jul-1990
The defendant had pleaded guilty to offences of obtaining property by deception, The judge discussed the issue of the obtaining of benefit saying: ‘The fact that he may not have personally received all or some of the money in relation to any of . .
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 Sentencing
Updated: 25 March 2022; Ref: scu.655491