R v Mark Green
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MOORE-BICK |
| Judgment Date | 25 May 2007 |
| Neutral Citation | [2007] EWCA Crim 877,[2007] EWCA Crim 1248 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 200601415 B4,No: 200601415/B4 |
| Date | 25 May 2007 |
[2007] EWCA Crim 1248
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MANCHESTER
His Honour Judge Steiger QC
T2003 7668
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Mr Justice David Clarke and
Mrs Justice Swift DBE
Case No: 200601415 B4
Mr Andrew Bodnar for the appellant
Mr D J Farrer QC and Miss J Carter-Manning for the respondent
Hearing dates: 23 rd April 2007
Mr. Justice David Clarke:
Introduction
The Appellant, Mark Green, who is aged 34, appeals with leave of the single judge against a confiscation order in the sum of £2.5 million made against him on 17 th February 2006 pursuant to section 2(5) of the Drug Trafficking Act 1994 (“the Act”). The order was made by His Honour Judge Steiger Q.C. sitting in the Crown Court at Manchester, who delivered a written judgment following a three-day hearing in January 2006.
The appellant had, on 13 th May 2004, pleaded Guilty to offences of conspiracy to supply drugs of classes A and B (count 1); conspiracy to launder the proceeds of drug trafficking (count 2); and conspiracy to import controlled drugs of class B from Spain, Belgium and Holland (count 3). A number of co-defendants pleaded Guilty to offences on the same indictment; others were convicted after trial.
The conspiracies were alleged in the indictment to have been in operation between 17 th July 2000 and 24 th September 2003, which was soon after the appellant's arrest on 18 th September 2003. He pleaded Guilty, however, on a written basis of plea in which a number of admissions were made, including an admission that he had been involved in the supply of controlled drugs (including a small amount of class A drugs) between March 2001 and September 2003. The vast majority of the drugs supplied were cannabis resin and herbal cannabis imported into the UK via the mailbox system or cultivated in the UK. The class A drugs he had supplied had been obtained in the Wigan area. The appellant admitted that a total of about 1 1/2 metric tons of cannabis had been imported and sold during the period of his involvement. No class A drugs were imported.
On 2 nd August 2004 the judge proceeded to sentence according to that basis of plea, the confiscation proceedings being postponed. By the time these proceedings were heard in January 2006 the judge had concluded confiscation proceedings in respect of all the co-defendants, making the orders listed in paragraph 3 of his ruling.
The confiscation proceedings
By the time of the confiscation proceedings it was common ground that the appellant was the principal conspirator at the heart of a sophisticated scheme for the importation and distribution of cannabis. The drug, principally high-value “skunk”, was packed in large padded envelopes, each containing 2 kilos or thereabouts, and despatched by post from mainland Europe to numerous mailboxes rented by or on behalf of the appellant, who used a number of false identities. The packages were collected from those mailboxes by fellow-conspirators or others working on the appellant's behalf and then distributed down the chain of supply. Much of the cash proceeds of sale were exchanged into foreign currencies and used for the purchase of further consignments. The scale of the operation, which included also the distribution of some class A drugs, is clearly illustrated by the fact that between July 2000 and September 2003 cash sums totalling £4,277,768.76 were exchanged for foreign currencies at various bureaux de change.
The Court was required to proceed under sections 4 and 5 of the Act. Its task under section 4 was to assess the value of the appellant's proceeds of drug trafficking; there was no issue but that he had benefited from drug trafficking. The assessment process included making, as appropriate, the assumptions prescribed by section 4(3), unless those assumptions were shown to be incorrect in his case or there would be a serious risk of injustice if they were made: section 4(4). Its duty was then to make a confiscation order in that sum, unless it was satisfied that the amount which might be realised from the appellant's assets was less than the value of his proceeds of drug trafficking: section 5(3). In many cases, including the present case, this is in practice the crucial question because the value of the defendant's realisable assets is less than the value of his proceeds of drug trafficking, but it is still important not to overvalue the proceeds, since the Crown may apply to the Court at any time to seek further recovery up to their full amount.
The present appeal relates to both stages of the exercise performed by the judge. Mr Bodnar, who appeared for the appellant, has substantial expertise in this difficult area of criminal law, but the grounds of appeal were lengthy, complex and in our judgment not always clearly focused. In the result, it was not clear to us at the outset precisely where his attack was directed. Nor was it clear to us in all cases how the figures reached by the judge had been arrived at. In the course of the hearing, however, it became clearer not only that Mr. Bodnar was critical of the judge's approach to the assessment of proceeds, which involved aggregating the cost of purchasing the drugs and the proceeds of sale, but also that he criticised the judge for failing to adopt as the basis for his calculations (subject to a number of subsidiary points which remained in issue) figures that had been agreed between the appellant and the Crown.
The first of the stages to which we referred is commonly called the “benefit” calculation, but the term “benefit” is misleading in this context because it is clear from section 4 that what the court must assess is the value of the defendant's proceeds of drug trafficking which are to be calculated by reference to gross receipts (i.e. turnover) rather than profit. In our judgment it is better, therefore, to use the statutory word “proceeds”. The value of a Defendant's proceeds of drug trafficking is the aggregate of the payments or other rewards received by him at any time in connection with drug trafficking carried on by him or another person: section 4(1). A useful simple example of the distinction between proceeds and profits is to be found in the judgment of Lord Bingham C.J. in Banks [1997] 2 Cr.App.R.(S.) 110, as follows (page 112):
“Suppose that a defendant D inherits £1,000 from his law-abiding grandmother. Suppose further that D spends that whole sum on drugs which he then sells for £1,000, making no profit. Suppose in addition that he repeats that operation on four occasions, on each of them buying drugs for £1,000 and selling them for the same sum. It is on those facts plain that his turnover on the five transactions is £5,000, that being the gross sum received by him by way of payment on the five transactions. It is, however, equally plain that his profit is nil. At the end of his dealing he only has the £1,000 with which he started. It can therefore be said to be unfair if a confiscation order can be made with reference to the figure of £5,000, his gross receipts rather than his profits.”
Later Lord Bingham said (page 113):
“The court's duty therefore under section 5(1) is to make a confiscation order in the amount which the Crown Court assesses to be the value of the defendant's proceeds of drug trafficking. In order to assess the value of the defendant's proceeds of drug trafficking in pursuance of that subsection the court must refer back to section 4(1) which defines the meaning of the proceeds of drug trafficking. The definition is that those proceeds are the aggregate value of the payments or other rewards received by a person in connection with drug trafficking, and those expressions take one back to the first of the clutch of subsections we mentioned in section 2 where, in subsection (3), there is an express reference to “any payment or other reward”. It accordingly seems to us that the reference to “benefit” in section 2(2) and (3) is the subject of clear and express further definition to which the court must pay attention in applying this Part of this Act. We accordingly conclude that, on the language which Parliament has used in this Act, reproducing similar language used in the 1986 Act, it is clear beyond argument that the benefit is to be treated in particular in accordance with section 4 as the aggregate value of the payments or other rewards made to the defendant in connection with drug trafficking. That does not, as we read it, direct attention to profit but to gross payments.”
In a note prepared for the confiscation proceedings the Crown submitted that the value of the defendant's proceeds of drug trafficking could be ascertained from the evidence of the conspiracy itself and the application of the assumptions in section 4(3). It adopted the appellant's admission, made for the first time in the confiscation proceedings, that he had imported 2 metric tons of cannabis and argued that his proceeds comprised (a) the value of the drugs imported (on the basis that they represented property received in the course of drug trafficking); (b) the purchase price of the drugs supplied (applying the assumption in section 4(3)(b) that any expenditure during the relevant period had been met out of payments received in connection with drug trafficking); (c) payments received on the sale of the drugs in this country (on the basis that they represented the proceeds of drug trafficking); (d) the money laundered through the bureaux de change; and (e) the value of various...
To continue reading
Request your trial
-
R v Mark Green
...Partnership) Respondent: David Perry QC Duncan Penny (Instructed by Crown Prosecution Service) SESSION 2007-08 REPORT on appeal from: [2007] EWCA Crim 1248 APPELLATE COMMITTEE Ordered to The Committee (Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lo......
-
John Alan Brooks v The Queen
...were the subject of the conviction. That would involve access to a considerable sum of money. 13 The judge went on to cite a passage from R v Green [2007] 3 All ER 751 where this court said: "By virtue of section 6(1)(a) the amount that might be realised is the total value of all the realis......
-
R v Raymond Smith
... ... 13 The House of Lords examined the meaning of the word "obtains" in section 76(4) in the linked cases of May , Green [2008] UKHL 30 , [2008] 1 AC 1053 and Jennings [2008] UKHL 29 , [2008] 1 AC 1046 ... The guidance given by Lord Bingham of Cornhill, ... ...
-
R v Spencer (Raymond)
...with the confiscation proceedings will be bound by those facts: see May [2005] EWCA Crim 97 at paragraph 84 and following and Green [2007] EWCA Crim 1248 at paragraph 21 on quantities and prices. 27 (2) The court must fix the defendant's proceeds of drug trafficking and the realisable amoun......