Barnham, R v

At the second stage of confiscation proceedings under the Drug Trafficking Act 1994, once benefit has been established, the defendant bears a persuasive burden to prove, to the civil standard, that the amount realisable is less than that benefit. The prosecution need not first establish a prima facie case that assets have been hidden, whether benefit was proved by evidence or by statutory assumptions.

The court must nevertheless stand back and ensure that the order creates no serious or real risk of injustice. A defendant who gives no truthful, cogent evidence explaining what became of criminal proceeds may fail to displace an order for the full benefit. Assets under the defendant’s control may remain realisable although a proposed drug importation failed.

The appellant had been convicted of two conspiracies to evade the prohibition on importing cannabis. The Crown Court assessed his benefit from drug trafficking at £1,525,615. That assessment was not appealed. At the subsequent realisable-assets stage, the judge rejected the evidence of the appellant and his wife and ordered payment of the full benefit, with imprisonment in default.

On appeal, the appellant contended that article 6(1) required the prosecution to establish a prima facie case of hidden assets before he bore any burden at the second stage. He also argued that the order was unfair because the conspiracies had failed, his assets had diminished, and some sums had been double-counted. The central question was whether the order created a serious risk of injustice.

1. Appeal allowed in part. The confiscation order was reduced by £65,000, from £1,525,615 to £1,460,615. The Crown accepted that £65,000 spent refurbishing the Spanish house had been subsumed in the assessed value of that house and should not also remain in the final order.

2. Under the two-stage scheme of the Drug Trafficking Act 1994, once the court has established benefit, the defendant bears a persuasive burden, to the civil standard, of showing that the amount realisable is lower. This applies equally where benefit was established using statutory assumptions. The prosecution need not first make a prima facie case that the defendant has hidden assets.

3. Article 6(1) does not alter that allocation. The essential safeguard is the court’s duty to stand back before making the order and determine whether there is, or may be, a serious or real risk of injustice. The judge must genuinely apply that safeguard and not merely recite it.

4. The trial judge was entitled to find that the appellant had not discharged his burden. He had not given truthful, cogent evidence explaining what became of the proceeds, including cannabis under his control. A failed importation did not require the drugs to be disregarded: they could remain a valuable asset, and associates could have dealt with them for the appellant. The judge had carefully considered the evidence and the injustice safeguard.

• Court of Appeal (Criminal Division): Allowed the appeal only to correct a £65,000 double count in the confiscation order.

• Crown Court at Snaresbrook: Following convictions on 16 July 2001, assessed benefit at £1,525,615 and, on 12 April 2002, made a confiscation order for that sum.