R v Walls (Andrew)
Jurisdiction | England & Wales |
Judge | Recorder of Liverpool,LORD JUSTICE JUDGE,MR JUSTICE BUTTERFIELD |
Judgment Date | 30 October 2002 |
Neutral Citation | [2002] EWCA Crim 2456 |
Court | Court of Appeal (Criminal Division) |
Docket Number | Case No: 2000 01395 W4 |
Date | 30 October 2002 |
[2002] EWCA Crim 2456
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM INNER LONDON CROWN COURT
HIS HONOUR JUDGE CAMPBELL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Judge
Mr Justice Butterfield and
Recorder of Liverpool
Case No: 2000 01395 W4
James Dennison for the Crown
Rudi Fortson for the Appellant
The
This is a renewed application for leave to appeal against sentence. On 9 February 2000, in the Crown Court at Inner London before HHJ Campbell, the appellant was sentenced to five years' imprisonment for an offence of conspiracy to supply a controlled drug, to which he had pleaded guilty. At the same time a Drug Trafficking Confiscation Order was made in the sum of �234,315.54, to be paid within 12 months, and in default of payment the appellant was ordered to serve two years' imprisonment, consecutive.
The application for leave to appeal relates only to the confiscation order, and only to one part of it. In short, the complaint relates to the inclusion, as one of the items of property constituting the proceeds of drug trafficking, of his home at 66 Constable Court, in London SE16, which continued to be occupied by his girl-friend and their young child. Alternatively it is argued that if that property was correctly included, the valuation should have been only the equity of redemption, after deducting the outstanding mortgage liability, rather than the gross value of the house.
The Crown was represented on the hearing of the renewed application and responded to it. It was quickly clear that an arguable ground of appeal existed, leave was granted and we moved directly to the hearing of the appeal.
For present purposes the facts of the case can be briefly stated. The conspiracy to which the appellant and others pleaded guilty was laid in the indictment as extending from February 1998 to February 1999. It involved the importation of cannabis into the UK, its distribution and sale and the laundering of the proceeds of sale to Gibraltar. It was detected as the result of an elaborate undercover police operation.
In the course of that operation the appellant was observed handling and transporting a package containing 50 kg of cannabis resin with an approximate street value of �250,000. Other observations were made, and after his arrest he was found to have control of large sums of cash. In due course he pleaded guilty on the basis that he was, from the end of July 1998 onwards, involved as a "medium wholesaler" handling amounts of the order of 10�50 kg.
Drug trafficking confiscation proceedings were in due course launched in relation to all the defendants and a hearing took place over several days, culminating in a lengthy and detailed ruling on 8 February 2000. It is clear that the judge took great care, dealing not only with the detailed financial issues but also with arguments advanced under the Human Rights Act and Convention, to which he had regard even though they were not yet in force. It is a tribute to him that only one discrete element of his ruling has been challenged.
In the amended Prosecutor's Statement, served pursuant to s11 of the Drug Trafficking Act 1994, the then current market value of the property was included in the proceeds contended for, namely �90,000. That valuation was not in itself challenged on behalf of the appellant, but the judge was provided with written details showing that the house had been bought in 1995 at a price of �52,750 with a 90% mortgage of �47,475 from the Halifax Building Society.
The appellant did not give evidence in the confiscation proceedings.
It was not in issue before the judge, the appellant having pleaded guilty, that he had benefited from drug trafficking. The judge thereupon had a two-stage task to perform. First, he was required to assess the proceeds of the applicant's drug trafficking under s4 of the Act, making where appropriate the required assumptions set out in that section. Having done so, he had then to make the confiscation order under s5, which had to be made in the full amount of those proceeds unless s5(3) applied to reduce that figure to the amount of his realisable assets.
In most cases, the realisable assets are found to fall far short of the assessed value of the proceeds. In such cases, by virtue of s5(3), the judge's task is to make the confiscation order in the amount of the realisable assets. It is well established by decisions of this court, including particularly Ilsemann [1990] 12 CAR(S) 398, that the burden is upon the defendant to establish that his realisable assets fall below the value of the proceeds of drug trafficking. But in practice it is commonly accepted that the only realisable assets are those identified by the police or CPS confiscation unit's investigators.
Thus it is that in many cases the Crown's valuation of the proceeds of a particular offender's drug trafficking is of little more than academic interest: what matters is the amount of his realisable assets. It remains open to the Crown to apply later to the High Court under s16 of the Act if the offender is found to have acquired further assets, as was done in Tivnan [1999] 1 CAR(S) 92, but this is a rare eventuality.
In the present case, on the other hand, the process of valuation of the proceeds of drug trafficking under s4 was of critical importance, since the appellant gave no evidence to displace the assessment of his realisable assets at over �245,000, whereas the value of the proceeds, or benefit, including the full �90,000 in respect of the house, was valued at �234,315.54. The confiscation order was made in the amount of those proceeds and any reduction in the assessed proceeds will go to reduce the confiscation sum itself.
We therefore turn to the essential issue before us.
The Drug Trafficking Act 1994 provides as follows:
"Assessing the proceeds of drug trafficking
4.-(1) For the purposes of this Act
(a) any payments or other rewards received by a person at any time (whether before or after the commencement of this Act) in connection with drug trafficking carried on by him or another person are his proceeds of drug trafficking; and
(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards.
-(2) Subject to subsections (4) and (5) below, the Crown Court shall, for the purpose
(a) of determining whether the defendant has benefited from drug trafficking, and
(b) if he has, of assessing the value of his proceeds of drug trafficking, make the required assumptions.
-(3) The required assumptions are
(a) that any property appearing to the court:
(i) to have been held by the defendant at any time since his conviction, or
(ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him,
was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him;
(b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him; and
(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it.
-(4) The court shall not make any required assumption in relation to any particular property or expenditure if
(a) that assumption is shown to be incorrect in the defendant's case; or
(b) the court is satisfied that there would be a serious risk of injustice in the defendant's case if the assumption were to be made;
and where, by virtue of this subsection, the court does not make one or more of the required assumptions, it shall state its reasons."
"Section 7. �(1) Subject to the following provisions of this section and to section 8 of this Act, for the purposes of this Act the value of property (other than cash) in relation to any person holding the property is the market value of the property, except that, where any other person holds an interest in the property, the value is
(a) the market value of the first-mentioned person's beneficial interest in the property, less
(b) the amount required to discharge any incumbrance (other than a charging order) on that interest."
The learned judge correctly directed himself as to the legislative intention of these provisions, their draconian nature and the very limited extent to which any judicial discretion can be exercised, strictly within s4(4). He had been urged to take into account wider interests such as those of the offenders' families.
He said:
"Wider concepts of social justice, however, appear to this court to be completely beyond the scope of the second exception. The Crown rightly points out in this case that if a home occupied by a wife and children was held to be in some way inviolate, both as regards benefit and realisability, it could produce the ridiculous result that a drug trafficker could ensure that he invested all his drug proceeds in some palatial house and home with impunity. If a court was entitled to look at wide social issues, then really what is being said is that the court's role is a discretionary one. This was clearly not the intention of those who drafted, and parliament that passed the Act. The earlier Drug Trafficking Law did contain an element of discretion. The proceeds relating to other forms of criminal offence � offences of dishonesty not covered by the Drug Act � also includes a...
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