ISSUE 5 2008 - Sweet & Maxwell

404 Case & Comment [2008]
from the conduct concerned, whether general or particular, unless the defendant
shows that the available amount is less than the amount of the benefit. It is for the
court to decide on the available amount (s.7(5)). Although the language is slightly
different, the principle is the same; once the court has determined the defendant’s
benefit, the confiscation order must be made in that amount unless the defendant
can persuade the court that his available assets and the value of any ‘‘tainted gifts’’
together amount to a lesser figure.
The court in this judgment points to the possible confusion arising from the details
which may be set out in what is now called a ‘‘statement of information’’ made in
accordance with s.16. The statement may well include a detailed account of those
assets of the defendant which the prosecution have been able to identify. As the court
points out in the judgment, the main purpose of including these details is to bring into
operation the assumptions which the court is normally required to make in a ‘‘criminal
lifestyle’’ case under s.10. The secondary purpose of setting out the details of the
established assets of the defendant is to rebut any claim made by the defendant that
his assets are less than the value of his benefit. Notwithstanding any details set out
in the statement of information, it remains the position that the burden of persuasion
that the defendant’s available assets are less than his benefit rests on the defendant
and it is not the prosecution’s task to prove what they are. If the defendant fails to
persuade the court that his assets are less than his benefit, the confiscation order
must be made in the amount of his benefit.
The point made in the judgment is that confiscation proceedings are not civil
proceedings and therefore it is not open to the prosecution to agree to settle
confiscation proceedings by the payment by the defendant of an agreed amount.
Agreements are not necessarily inconsistent with the statute, but the limit of the
scope for agreements is that the prosecution may agree that it does not dispute
the defendant’s assertion that all his assets have been disclosed and that he does
not have any further hidden assets. On the basis of such an agreement, it is open
to the court to make the statutory finding that the available amount is less than the
amount of the defendant’s benefit. In the case with which the court was concerned,
this did not happen. The prosecution’s position, as evidenced by the prosecutor’s
statement, was that there had not been full disclosure of the defendant’s assets but
that the prosecution would nevertheless accept payment of the agreed amount. The
effect of the decision is that the prosecution are not entitled to compromise and
accept a payment of an amount less than the defendant’s assessed benefit in these
circumstances. The defendant has failed to discharge the burden of proving that the
available amount is less than the value of his benefit and the order must be for the full
value of his benefit.
[D.A.T.]
Trial
Professional embarrassment—defendant’s counsel withdrawing from trial—fresh representatives
seeking adjournment to prepare case—judge granting short adjournment—fresh
representatives withdrawing from trial—defendant remaining unrepresented—cab-rank
principle
Adjournment; Cab rank rule; Defence counsel; Representation orders;
Solicitors; Time for preparation of defence; Transfer; Withdrawal
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