Posted: 21 / 02 / 2021
The court in confiscation proceedings needs, separately, to reach conclusions concerning the amounts of the defendant’s benefit and his available amount. But while these are separate exercises, what impact does the defendant’s benefit have on his available amount?
The judgment in Barwick
The Court of Appeal in the confiscation case of R v Barwick  EWCA Crim 3551 said, “Once it is proved that he has received the benefit, it is pragmatic, and entirely fair to the defendant, to place upon him the onus of showing (to the civil standard) that he no longer has the proceeds or that their extent or value has diminished”.
This passage is sometimes quoted by prosecutors in their s16 statements.
The judgment in Telli
In another, slightly more recent, confiscation case Telli v Revenue and Customs Prosecutions Office  EWCA Civ 1385 the Court of Appeal said, “The statute requires a defendant, if he can, to prove, for the purposes of s.5(3) [of the Drug Trafficking Act 1994] that the amount which might be realised at the time the confiscation order is made, is less than the amount to be assessed to be the value of his proceeds of drug trafficking. Accordingly, if a defendant is found not to have disclosed the nature and extent of his realisable assets, a correct view of the statutory scheme is that he cannot satisfy a court that the total value of all his realisable property is less than the value of the proceeds of his drug trafficking”.
The implication appears to be that the Crown Court should find that the defendant’s available amount is not less than his benefit unless the defendant himself presents evidence, which is accepted as credible by the court, that his available amount is less. In practice, experience shows that the defendant’s evidence is seldom accepted as credible in confiscation proceedings – after all he has just been convicted.
The judgment in Walbrook
Perhaps the oldest Court of Appeal judgment which prosecutors are apt to quote in s 16 statements in this connection is one from the confiscation case of R v Walbrook and Martin  15 Cr App R (S) 783 that the onus is on the defendant to produce “clear and cogent evidence; vague and generalised assertions unsupported by evidence will rarely if ever be sufficient to discharge the burden on the defendant”.
Although all of these cases were decided under legislation which pre-dated the Proceeds of Crime Act 2002, that in itself does not render these judgments irrelevant to current confiscation proceedings.
But do these judgments necessarily hand an unassailable advantage to the prosecution?
Placing these quotes in context
In truth, all of these quotes need to be understood in the context of the facts in the cases in which they arose.
Walbrook in context
In Walbrook the court was concerned with the recovery of a doubtful debt which the defendant asserted was uncollectible. The full quote is, “where a defendant has an asset in the form of a debt, the onus is on him to satisfy the court that the realisable value of the debt is less than its face value. In our view, this he must do by producing clear and cogent evidence; vague and generalised assertions unsupported by evidence will rarely if ever be sufficient to discharge the burden on the defendant”.
The case was referred to in Glaves v CPS  EWCA Civ 69 where it was said, “As the prosecutor’s statements in the present case illustrate, courts are routinely reminded of the dictum in Wallbrook and Glasgow that the defendant must produce clear and cogent evidence, and that generalised assertions will rarely be sufficient to discharge the burden. The truth is that there is a balance of judgment to be struck. The courts are right to treat with some scepticism generalised assertions by someone whose credibility may be deeply suspect by reason of the facts of the offence. Absence of independent credible evidence to corroborate a defendant’s account is not fatal as a proposition of law, but it may well be fatal as a matter of fact. That, as I have said, is a matter for the judgment of the court considering the confiscation application”.
The situation in Barwick
In Barwick the court was concerned with a con-man who had swindled vulnerable people out of their savings. There was no assumed benefit and there were no co-defendants – the entirety of the benefit comprised monies which Mr Barwick himself had received directly from his victims.
In these circumstances it was entirely sensible for the court to ask, ‘Where has that stolen money gone?’.
But it does not follow that, in perhaps an entirely different factual situation, a defendant should be presumed always to have retained from his offending an available amount equal to his benefit.
Reconsidering the judgment in Telli
In the case of McIntosh and Marsden v R  EWCA Crim 1501, Lord Justice Moses had, as he put it, “an opportunity to revisit certain dicta, for which I must take responsibility, in Telli and to underline the importance of the statutory framework within which judges must work in order to assess the amount that might be realised”.
As he said in McIntosh, “there is no principle that a court is bound to reject a defendant’s case that his current realisable assets are less than the full amount of the benefit, merely because it concludes that the defendant has not revealed their true extent or value, or has not participated in any revelation at all. The court must answer the statutory question in s.71(6) [Criminal Justice Act 1988] in a just and proportionate way. The court may conclude that a defendant’s realisable assets are less than the full value of the benefit on the basis of the facts as a whole. 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. But it may not be impossible for him to do so. Other sources of evidence, apart from the defendant himself, and a view of the case as a whole, may persuade a court that the assets available to the defendant are less than the full value of the benefit”.
This may be the best brief summary of the current legal position regarding the burden of proof, which undoubtedly rests upon the defendant, to satisfy the court that he has an available amount which is less than his benefit.
In some cases it may be appropriate for the defence to examine the detail of the defendant’s benefit line by line, and item by item, perhaps with the aid of forensic accountants such as ourselves, to determine the implications, if any, for the defendant’s available amount from each element of benefit.
It should be borne in mind that where benefit is obtained jointly with others, or is in the form of drugs or illegitimate goods seized from the defendant, or is benefit assumed from day to day living expenses – to take just a few examples – there will not be generated an available amount corresponding to the value of the benefit obtained.
The temptation to jump too readily to the conclusion that the defendant must have additional ‘hidden’ assets should be resisted.
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(Note: This article applies to confiscation proceedings under the provisions of Part 2 of the Proceeds of Crime Act 2002 in England and Wales. There are a number of additional issues which could be relevant to a defendant’s confiscation proceedings in particular cases which it is not possible to deal with in a relatively short article such as this. Appropriate professional advice should be sought in each individual case.)