R v Comiskey
| Jurisdiction | England & Wales |
| Judgment Date | 29 November 1990 |
| Date | 29 November 1990 |
| Court | Court of Appeal (Criminal Division) |
Court of Appeal
Before Lord Justice Stuart-Smith, Mr Justice Tucker and Mr Justice Turner
Criminal procedure - drug trafficking confiscation order - allowable expenses
In determining the amount of a confiscation order against a convicted drug trafficker under the Drug Trafficking Offences Act 1986 the court should not ignore the fact that the trafficker must have incurred expenses.
The Court of Appeal, Criminal Division, so held in reducing from £250,000 to £200,000 the amount of a confiscation order made by Judge Balston at Maidstone Crown Court on September 22, 1989 against David Comiskey, who had pleaded guilty to one count of importing and two counts of possessing cannabis. He was sentenced to three years imprisonment, with three years consecutive in default of the confiscation order.
Mr Michael Boardman, assigned by the Registrar of Criminal Appeals, for the appellant; Miss Heather Hallett, QC and Miss Linda Dobbs for the Crown.
LORD JUSTICE TUCKER said the appellant had been involved in bringing cannabis into Britain in a Land-Rover with a false roof. Customs officers had estimated that fully loaded the false compartments could contain 55kg of the drug, with a wholesale value of £104,000. It was established that three deliveries had been made.
The trial judge had carried out an enquiry to decide whether or not to make a confiscation order, and if so in what amount. The Crown submitted that the proceeds amounted to £418,000, that the appellant had realisable assets of £32,158.19 and other assets which could not be traced.
The judge, giving the appellant the benefit of "any doubt there might be" assessed the total amount that had been imported at £250,000.
The question was whether the court itself ought to conclude as a matter of commonsense that the amount that might be realised must be less than the value of the proceeds, by reason of the expenses that must necessarily have been involved.
Was there a duty on the court to make that estimate and to make a notional reduction to reflect it?
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