What Is Meant by ‘Obtaining’ Property under the Proceeds of Crime Act 2002, Who Obtains It, and What Is the Value of the Interest Obtained?: R v Ahmad; R v Fields [2014] UKSC 36
Published date | 01 October 2014 |
Date | 01 October 2014 |
DOI | 10.1350/jcla.2014.78.5.938 |
Subject Matter | Supreme Court |
The Journal of Criminal Law (2014) 78 JCL 379–386 379
doi:10.1350/jcla.2014.78.5.938
Supreme Court
What Is Meant by ‘Obtaining’ Property under the Proceeds
of Crime Act 2002, Who Obtains It, and What Is the Value
of the Interest Obtained?
R v Ahmad; R v Fields [2014] UKSC 36
Keywords Confiscation; Obtaining property; Market value; Joint liability;
Drug trafficking
These appeals concerned confiscation proceedings under the Drug
Trafficking Offences Act 1986 (DTOA) and the Proceeds of Crime Act 2002
(POCA). The question for the court was as follows:
When a number of people (all or only some of whom are before the court) have
been involved in the commission of a crime which resulted in property being
acquired by them together, what is the proper approach for the court to adopt,
and the proper orders for the court to make, in confiscation hearings? (at [26])
The two appellants in Ahmad (‘the Ahmad appellants’) had been
involved in a carousel fraud. The benefit figure, when adjusted for
inflation, was £16.1 million. A confiscation order was made in respect of
each of them in that sum. In the Court of Appeal, Hooper LJ stated that,
following R v May [2008] UKHL 28, ‘where a benefit is obtained jointly,
each of the joint beneficiaries has obtained the whole of the benefit and
may properly be ordered to pay a sum equivalent to the whole of it’,
unless such an order would violate Article 1 of the First Protocol to the
European Convention on Human Rights (A1P1) (at [16]).
The second appeal (Fields) involved three appellants who had committed
a substantial credit agreement fraud (‘the Fields appellants’). The benefit
was assessed at £1.6 million and each appellant had a confiscation order
made against him in that sum. The Court of Appeal upheld these orders,
rejecting the contention that each appellant ought only to be liable for
one-third of the total sum. The Court of Appeal again relied on the case of
May and also observed that there were ‘strong policy objections’ to the
recognition of beneficial interests between defendants (at [22]).
POCA speaks of ‘another person’, other than the relevant defendant,
holding an interest in the property (s. 79(3)). The Court of Appeal held
that this extended only to ‘making allowance for lawfully subsisting prior
interests of other persons: not to the asserted “beneficial interests” of co-
conspirators …’ (at [22]).
Both appeals turned on the ruling by the Court of Appeal that each
appellant should be separately liable for the whole amount of the
confiscation order. The Ahmad appellants argued that whilst both may
formally be liable in the full sum, any moneys paid by one appellant would
reduce the liability of both, in accordance with ‘normal common law
principles’ (at [24]). Thus, if one appellant paid £10 million, both would
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