ISSUE 5 2008 - Sweet & Maxwell

Crim. L.R. Sentencing 401
were to be made. The process by which the court assessed a defendant’s proceeds of
drug trafficking was to be distinguished from the process for assessing the amount
to be recovered under a confiscation order by virtue of s.5. Section 5 provided
that the amount to be recovered under a confiscation order should be the amount
the Crown Court assessed to be the value of the defendant’s proceeds of drug
trafficking, unless the court was satisfied that the amount that might be realised at
the time the confiscation order was made was less than that amount. In that event,
the amount of the confiscation order should be the amount appearing to the court to
be the amount that might be realised or a nominal amount. The amount that might
be realised at the time a confiscation order was made was the total value of all the
realisable property held by the defendant. The effect of the provisions was that prima
facie the court was required to award recovery of the full value of the defendant’s
proceeds of drug trafficking. The court had no power to make an order for any lesser
sum unless it was satisfied that the total of the value at the time the confiscation
order was made of all property held by the defendant was less than the value of the
proceeds as assessed according to s.4. If a defendant failed to satisfy the court of the
value of that realisable property, the court was bound to make a confiscation order
in the full value of his proceeds. A defendant should not, if the statutory scheme
was properly followed, be able to avoid an order recovering the full value of his
proceeds unless he identified the realisable property he held. If he refused to do so,
the court had no option but to order the full amount. It was not open to the Crown
or the defendant to reach an agreement which purported to confer on the Crown
Court an authority inconsistent with the court’s obligations imposed by s.5. That
was not to say that the Crown and the defendant could not reach an agreement
as to the matters which formed the foundation of a confiscation order. It would be
disastrous if it were otherwise. Throughout the period of the operation of the 1994
Act, agreements had been reached between prosecuting authorities and defendants
without which proceedings in the Crown Court would grind to a halt.
It was important to emphasise that any agreement must be within the framework
of the statutory scheme and not inconsistent with it. When the original confiscation
order was made, the court issued a certificate in accordance with s.5 to the effect
that the value of the defendant’s proceeds of drug trafficking was £6 million and
that the amount that might be realised at the time of the making of the order was
£3,458,806. The certificate stated that relevant information regarding the amounts
would be obtained from an officer of HM Customs and Excise. The only source
of information at the time the order was made was a statement made by the officer
under s.11; this was the only source consistent with the statute for determining
the property which formed the basis of the valuation. The statement dealt with the
proceeds received by the defendant and the value of his realisable property. This
led to confusion. The essential function of the prosecutor’s s.11 statement was to
determine whether the defendant had benefited from drug trafficking and to assess
the value of his proceeds. It was not part of the prosecutorial function to quantify
the value of realisable property. That was because it was for the defendant to satisfy
the court that the total value of the realisable property held by him (including gifts
he had made) was less than the total value of his proceeds. For that reason, the
prosecutor’s statement need do no more than assess the full value of the proceeds,
leaving the defendant to persuade the court that his realisable property was to be
valued at a lower figure. The fact that a prosecutor’s statement condescended to
identify property held by the defendant and quantify its value did not in any way
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