The recent Court of Appeal judgment in R v Mahmood [2013] EWCA 325 provides important guidance on several important issues which often arise in criminal confiscation proceedings before the Crown Court. These proceedings occur where a defendant has been convicted of an offence and his/her criminal conduct enabled them to obtain a financial benefit. The Proceeds of Crime Act 2002 (POCA) requires a Crown Court to consider whether a confiscation order should be made in order to compel that defendant to repay this benefit. These proceedings are supposedly about restitution and not, in contrast to a fine, meant to be punitive. Broadly, POCA requires a judge to determine the value of the illicit benefit and then fix the amount of the order by reference to the value of the defendant’s then wealth, their ability to pay. Or as POCA puts it, their “available amount”.

In the landmark House of Lords decision in R v May [2008] UKHL 28 it was held that Crown Court judges presiding in confiscation proceedings had become too penal and presumptive in their outlook. In the view of the House, a judicial resolve to determine these proceedings swiftly had caused injustice; defendant’s claims that they had not obtained the amount of benefit alleged and thus were not as wealthy as the prosecution claimed were being dismissed too readily. The short-cut of making presumptions had been allowed to supplant a careful examination of the evidence. The upshot of such summary justice was that defendants were having huge and unpayable confiscation orders awarded against them and were serving lengthy terms of imprisonment in default.

Since R v May there has been a chain of cases seeking to interpret the spirit of its ruling and to embed the new fact-sensitive procedure. Mahmood is the most recent echo. The issues which fell to be resolved here concerned the valuing of the defendant’s benefit and secondly, how such a valuation could be relevant to determining the available amount. M’s case on benefit was that since the judge, when sentencing him for the conspiracy to import heroin offence, had not regarded him as a ringleader, then it was perverse for him to later find in a confiscation context that his benefit should be the value of the entire heroin consignment. M asserted that the judge had erred in not drawing a distinction between conspirators who played a  leading role and followers like himself whose role was only “important and significant”.

The Court was unimpressed by this argument. It found no inconsistency in the judge’s approach. It held that May did not preclude a judge from finding that a defendant’s benefit was the property obtained by the conspiracy, despite them not being a leader of it. Cranston J held “The issue is not resolved by attaching a label to the person’s position in the conspiracy, although the role a person plays may assist in evaluating such evidence as is available. On the evidence available to him, we have no doubt that the judge was entitled to make his finding about the appellant’s role and that he had ownership of the drugs,” (paras 20 and 21). So the attempt by M to introduce back into confiscation proceedings presumptions, albeit pro-defendant ones, based on the specific criminal conduct or role of the defendant when acting in a conspiracy, was rebuffed.

The second issue in this appeal was M’s complaint that the judge was wrong after he had rejected M’s oral evidence of his impoverishment and had found that he must have hidden assets, to have valued his available amount as equal to the amount of his benefit. There was, it was submitted, no evidential basis for such an assessment of M’s wealth.

Whilst agreeing that post-May a judge was not bound to deem that a defendant’s hidden assets should be equated to their benefit, the Court held it was for the defendant to prove, on a balance of probabilities, that their available amount was less than their benefit. In the Court’s view M had “steadfastly refused to engage in the confiscation process.  There was the bare assertion in his solicitor’s response that he had no assets. When the prosecution indicated that the response was wholly inadequate, the appellant took no steps to correct the position.” Cranston J cited with approval the judgment in another case; a defendant ““who is found not to have told the truth or who has declined to give truthful disclosure will inevitably find it difficult to discharge the burden imposed upon him”. (Para 31).

This authority is another warning to defendants that the burden is on them to convince the judge, as the finder of fact, that their wealth is less than their benefit. It underlines the imperative to prepare thoroughly and comprehensively putting forward a positive case adducing as much documentary evidence as possible. Nothing suits a prosecution in this type of proceedings better than an inert defendant who, prior to the hearing, puts it to no effort and allows it to win the case by doing little more than reminding the judge as to the evidence in the trial as to the defendant’s guilt.