Ahmed & Anor, R v

Under the amended confiscation regime in Criminal Justice Act 1988, once the statutory conditions are met and benefit has been determined, the court must make a confiscation order for the lesser of the benefit and the amount realisable. The words “appearing to the court” require valuation under the statutory rules. They do not confer a discretion to exclude an offender’s beneficial interest in a matrimonial home because sale may be required to satisfy the order.

Article 8 does not alter the calculation of the statutory debt. Questions about the home and the rights of innocent family members arise if enforcement, such as a receiver’s application for sale, is sought. Proportionality must then be assessed on the facts at that time.

The appellants were respectively convicted of, or pleaded guilty to, conspiracies involving the conversion of criminal proceeds. Following proceedings at Wood Green Crown Court, HHJ Winstanley made confiscation orders on 8 July 2003 for £226,152.90 against Qureshi and £27,424.52 against Ahmed.

In calculating their realisable assets, the judge included each appellant’s beneficial half-share in the matrimonial home. The evidence indicated that the homes would probably have to be sold to meet the orders. The appellants contended that the judge had a discretion to exclude those interests. The prosecution contended that the amended statutory scheme allowed no such discretion.

The central issue was whether the calculation of realisable property under the Criminal Justice Act 1988 permitted a discretion, including one required by Article 8, to exclude an offender’s interest in a matrimonial home.

1. The Court dismissed both appeals against the confiscation orders. It held that the judge reached the correct result, although he was wrong to conclude that he possessed a discretion to exclude the appellants’ interests in their homes.

2. The Proceeds of Crime Act 1995 had changed section 71 of the Criminal Justice Act 1988 from a discretionary power into a duty. Once the court determines that an offender has benefited from relevant criminal conduct, it must make an order for the lesser of the benefit and the amount realisable. The latter amount is calculated under section 74 by valuing the defendant’s realisable property and deducting priority obligations. The phrase “amount appearing to the court” in section 71(6)(b) denotes the required evaluative and valuation exercise; it imports no judicial discretion.

3. The earlier decisions in Lee [1996] 1 Cr App R (S) 135 and Taigel [1988] 1 Cr App R (S) concerned the former discretionary wording. They could not govern the amended regime.

4. The serious-injustice observations in R v Benjafield [2003] 1 AC 1099 concerned the initiation of confiscation proceedings and the statutory assumptions used to determine benefit. They did not create a discretion when calculating realisable property after benefit had been established.

5. The calculation creates a statutory debt and does not determine how it will be paid. Accordingly, no Article 8 issue arose at that stage. If enforcement is sought, including an order for sale, third-party rights may be determined and Article 8 proportionality considered at that time, as explained in Re Norris [2001] 1 WLR 1388.

• Court of Appeal (Criminal Division) — dismissed the appellants’ appeals against the confiscation orders: [2004] EWCA Crim 2599.
• Wood Green Crown Court — HHJ Winstanley made confiscation orders on 8 July 2003 under the Criminal Justice Act 1988.