Lazarus, R. v

A confiscation order under the Proceeds of Crime Act 2002 cannot stand where the relevant drug-trafficking offence began before that Act came into force. The appellate court may substitute the equivalent order available under the Drug Trafficking Act 1994 if the statutory conditions for substitution are met and the appellant is not dealt with more severely.

A conviction for a relevant drug-trafficking offence permits the statutory assumptions to be applied to property received during the preceding six years. The assumptions are not unjust merely because the property falls outside the period charged on the indictment. An accepted basis of plea limits confiscation only where it contains, or the Crown expressly accepts, a relevant concession, such as that the defendant had no earlier involvement in drug trafficking.

The applicant pleaded guilty at Swindon Crown Court to being concerned in the supply of cocaine and to drug-possession offences. He had stored cash generated by another drug dealer and later possessed further class A drugs while on bail. He received total consecutive sentences of four years and three months’ imprisonment.

The Crown Court also made a confiscation order for £20,802.04 under the Proceeds of Crime Act 2002. The trafficking count began on 1 December 2002, before that Act applied. On appeal, the applicant challenged both his sentence and the statutory assumptions used to assess his benefit over a six-year period. He contended that his accepted basis of plea created a serious risk of injustice.

1. The court refused leave to appeal against sentence. A person who stores the proceeds of drug dealing performs a significant service for the dealer by protecting and facilitating the trade. Although such a person may appropriately receive a lower sentence than a dealer acting on his own account, a sentence of three and a half years for the principal offence was within the proper range. The later possession of class A drugs, committed while on bail and outside the period of the supply count, justified a consecutive sentence. The total of four years and three months was neither wrong in principle nor manifestly excessive.

2. The court allowed the appeal against the confiscation order only because the wrong statute had been used. The Proceeds of Crime Act 2002 applied only to offences committed on or after 24 March 2003, whereas the supply offence began on 1 December 2002. Under section 11(3) of the Criminal Appeal Act 1968, the court could substitute the substantially equivalent order available under the Drug Trafficking Act 1994, without increasing the appellant’s liability.

3. The statutory assumptions under section 4 of the Drug Trafficking Act 1994 extended to property received during the six years before proceedings began. The defendant bore the burden of showing, on the balance of probabilities, that property was not drug-trafficking proceeds. The court also had to refrain from making an assumption where it would create a serious risk of injustice.

4. The accepted basis of plea did not state, and the Crown had not conceded, that the applicant had never previously engaged in drug trafficking. It therefore did not prevent reliance on unexplained bank credits outside the six-month charged period. The applicant knew the Crown relied on the statutory assumptions and had a full opportunity to rebut them. There was no unfairness or serious risk of injustice. The court quashed the order under the 2002 Act and substituted an order under the 1994 Act determining benefit at £51,345.12 and the recoverable amount at £20,802.04, on the same time and default terms.

• Court of Appeal (Criminal Division): Allowed the appeal against the confiscation order to the limited extent of substituting an order under the Drug Trafficking Act 1994; refused leave to appeal against sentence. [2004] EWCA Crim 2297

• Swindon Crown Court: Following guilty pleas, imposed total sentences of four years and three months’ imprisonment and made a confiscation order under the Proceeds of Crime Act 2002.