Deprince, R v

Under Drug Trafficking Act 1994, section 4(4), the required assumptions must be assessed by reference to each holding, transfer of property, or expenditure. A serious risk of injustice affecting part of a sum does not prevent assumptions being made as to its remaining balance.

The court may make a reasonable deduction to eliminate a serious risk of injustice. It may then make the required assumptions in respect of the balance. A percentage deduction may be justified as a protective allowance where the evidence leaves a remote possibility that some part of the property or expenditure was legitimate.

The appellant was convicted at Croydon Crown Court of two offences of being knowingly concerned in the fraudulent evasion of the prohibition on importing cocaine. He received concurrent sentences of 14 years’ imprisonment.

Following a drug-trafficking inquiry, the judge made a confiscation order under Drug Trafficking Act 1994, section 2. The order was based on findings of benefit and realisable assets. Leave to appeal against sentence was eventually granted on one fresh ground.

The appellant contended that, once the judge identified a serious risk of injustice in relation to five disputed sums, section 4(4) required the judge to make no assumption at all concerning those sums. The central issue was whether the judge could reduce each sum by 25 per cent to eliminate that risk and make assumptions as to the balance.

1. Appeal dismissed. The judge lawfully made the confiscation order after reducing the disputed sums by 25 per cent.
2. Section 4(4) of the Drug Trafficking Act 1994 requires consideration of each particular property holding, transfer, or expenditure. The Act does not treat broad categories of receipts or expenditure as indivisible items. A finding that an assumption would create a serious risk of injustice as to part of a sum does not prevent an assumption being made as to the remainder.
3. The judge was entitled to conclude that the evidence did not show the assumptions to be incorrect under section 4(4)(a). The 25 per cent reduction was not a finding that that proportion derived from legitimate sources. It was a generous allowance made because of uncertainty and the remote possibility that a small part of the funds was legitimate.
4. The judge could therefore use section 4(4)(b) to eliminate the serious risk of injustice and make the required assumptions as to the balance. Although he did not give a precise logical basis for selecting 25 per cent, he had heard and assessed the evidence and was entitled to adopt that protective approach.
5. This conclusion accorded with the guidance of Lord Steyn in R v Rezvi [2002] 1AER 801 and R v Benjafield [2002] 1 AER 815: a judge must be alert to avoid injustice in making confiscation assumptions. The sentencing judge had done so.

• Court of Appeal (Criminal Division): Leave to appeal against sentence was granted on a single fresh ground. The appeal against the confiscation order was dismissed.
• Crown Court at Croydon: The appellant was convicted on 15 June 1999 and sentenced on 23 June 1999. In November 2000, the judge made a confiscation order under Drug Trafficking Act 1994, section 2.