ISSUE 5 2008 - Sweet & Maxwell

Crim. L.R. Sentencing 403
the realisable property. The statutory scheme did not permit such a conclusion. In
the absence of the identification of all the realisable property held by the defendant,
a defendant would normally be unable to satisfy the court that the amount that
might be realised at the time the confiscation order was made was less than the
amount assessed to be the proceeds of his drug trafficking. Assets which he had
hidden from the investigating officers might be equal to or in excess of the value of
his proceeds of drug trafficking. No court could be satisfied that they were to be
quantified at a lesser amount. The court suspected that, for many years agreements,
had been reached according to which a judge had assessed the value of realisable
assets as less than the benefit of drug trafficking without proper identification of
the assets which formed part of that valuation. R. (on the application of Customs and
Excise) v L [2007] EWHC 1191 (Admin) was an example. By the time a High
Court judge was called upon to consider a certificate of inadequacy, he was bound
by the conclusion of the Crown Court, even though it might have been based on
an impermissible agreement; impermissible because the realisable assets had not
been identified. The objection arose only where the realisable assets were agreed
to be less than the value of the proceeds, without proper identification of those
assets. In the instant case, the court was bound by the terms of the certificate
granted by the Crown Court when the confiscation order was made. In dealing
with the application for a certificate of inadequacy, it was incumbent on the court
to assess the current value of the realisable property in order to determine whether
it was inadequate to meet the outstanding sum. Once it was appreciated that the
property held by the defendant included unidentified assets forming part of the
total value of the realisable property at the time of the order, it was impossible for
the appellant to establish that the realisable property was inadequate now to meet
the payment of the outstanding order made in 1996. If the defendant failed to
identify all the assets he held, no one would know their true value and by the time of
the application for a certificate of inadequacy, the value of the assets which had not
been identified might have increased. In the absence of a consideration of current
value, no court could be satisfied that the realisable property was inadequate. If
the assets remain unidentified, no conclusion could be reached as to their current
value. The application would fail because the appellant was not able to establish
the current value of all his realisable assets as he chose not to identify all of them.
Theappealwouldbedismissed.
N. Johnson, Q.C. for the appellant.
B. Stancombe and R. Jones for the Revenue and Customs Prosecution Office.
Commentary: Although this decision was made under the terms of the Drug
Trafficking Act 1994 in the context of an application for a certificate of inadequacy, it
is plainly equally important in relation to confiscation orders made under the Proceeds
of Crime Act 2002. Although there are many differences of detail between the two
statutes, the essential scheme is the same. If the court is proceeding under the
Proceeds of Crime Act 2002 s.6, it must decide whether the defendant has benefited
from his criminal conduct. If the defendant has a criminal lifestyle, the court must
normally make the assumptions provided by s.10 and calculate the benefit derived
from his general criminal conduct. If the defendant does not have a criminal lifestyle, it
must decide whether he has benefited from his particular criminal conduct. The court
must then make a confiscation order in an amount equal to the defendant’s benefit
© SWEET &MAXWELL