Hussain & Ors, R v

Under the Drug Trafficking Act 1994, the court must determine benefit and the amount realisable as distinct questions. Once benefit is established, the defendant bears the burden of showing that the realisable amount is lower. A full-benefit confiscation order cannot stand unless the court has properly applied that statutory test and given an intelligible basis for finding undisclosed assets.

Evidence that a defendant made payments connected with property may be treated as drug-trafficking expenditure, but it does not without more establish a beneficial interest in the property. A series of fingerprints on items associated with drugs may provide a sufficient evidential basis for a jury to infer possession. A consecutive sentence for offending committed while on bail may remain proportionate where the sentencing judge properly applies totality.

Three appellants had been convicted at Manchester Crown Court of conspiracy to supply cocaine. Confiscation orders were later made in sums corresponding to the benefit figures, although the judge appeared to identify substantially lower amounts of known realisable assets. They appealed against those orders. Hussain also sought leave to appeal against his eight-year sentence for the conspiracy.

Hussain separately renewed applications for leave to appeal against his later conviction for possession of cocaine with intent to supply and against a consecutive four-year sentence. The prosecution case on that count depended on fingerprints found on several items in premises containing cocaine and equipment used to process it.

The central confiscation issue was whether the judge had properly applied the statutory distinction between benefit and the amount realisable, including the possibility of hidden assets.

1. The confiscation appeals were allowed. The court quashed the three original orders and substituted orders for the amounts properly established: £63,447 for Hussain, £70,116 for Joyce and £135,392 for Marshall. The respective default terms were 21 months, 21 months and 27 months, consecutive to the substantive custodial sentences.

2. Section 5 of the Drug Trafficking Act 1994 requires two distinct inquiries: the defendant’s benefit from drug trafficking and the amount that may be realised when the order is made. Under section 5(3), the defendant bears the burden, on the balance of probabilities, of establishing that the latter amount is less than the former. The court approved the general approach stated in R v Ilsemann (1990) 12 Cr App R(S) 398 and R v Barwick (13th October 2000).

3. Those principles did not save the orders made here. The sentencing judge’s stated findings of realisable assets, his earlier pragmatic approach, and the subsequent explanation concerning secreted funds created a real muddle. The court could not be satisfied that he had applied the statutory test or reached a properly reasoned finding that hidden assets raised the realisable amount to the full benefit figure. Rejection of the appellants’ evidence did not itself justify the full-benefit orders.

4. In Marshall’s case, cash lodgements used for mortgage payments could be treated under the statutory assumptions as drug-trafficking expenditure. However, there was no evidential basis for treating him as having acquired a beneficial interest in the whole property at its current value. The lower substituted figure reflected that conclusion.

5. Hussain’s renewed applications concerning his later cocaine offence were refused. The fingerprints on several portable items connected with the premises and drug activity provided a sufficient basis for the jury to infer possession despite the absence of evidence dating the prints. The conviction was safe. The consecutive four-year sentence properly reflected offending while on bail and a proper reduction for totality. His separate renewed application against the earlier eight-year conspiracy sentence was also refused.

• Court of Appeal (Criminal Division) — In [2004] EWCA Crim 2725, allowed the appeals against the confiscation orders, quashed those orders and substituted lower orders. It refused Hussain’s renewed applications concerning his custodial sentences and later conviction.

• Manchester Crown Court — On 5 February 2002, Hussain, Joyce and Marshall were convicted of conspiracy to supply cocaine. On 6 August 2002, confiscation orders were made against them.

• Manchester Crown Court — Hussain was convicted on 9 October 2002 of possession of cocaine with intent to supply and was sentenced on 22 November 2002 to four years’ imprisonment consecutive to the earlier sentence.