Siddique, R v

Once the prosecution has established the benefit obtained from drug trafficking, the defendant bears the burden of satisfying the court that the amount realisable is lower. The prosecution need not establish a prima facie case of hidden assets at that second stage. The court must nevertheless remain alert to a risk of serious injustice.

Expenditure on an ongoing drug-trafficking enterprise does not itself show that the corresponding benefit is unavailable for confiscation. A defendant who provides no credible evidence about the disposal or value realised from the drugs may fail to establish a lesser realisable amount. A default term must also comply with the principle of totality.

The appellant pleaded guilty to conspiracy to supply heroin and received an 11-year sentence. The Crown Court later made a confiscation order of £3,179,080.68 under the Drug Trafficking Act 1994, with seven and a half years’ imprisonment in default.

The judge found that the appellant had conducted drug trafficking over a six-year period. He assessed benefit by reference to expenditure and bank deposits, less legitimate income. He found identified realisable assets of about £549,525 and inferred substantial hidden assets. The appellant appealed the benefit and realisable-assets assessments, and challenged the default term.

1. The appeal was allowed only as to the default term. The confiscation order was upheld, but the term of imprisonment in default was reduced from seven and a half years to five years.

2. At the second stage of confiscation proceedings, once benefit has been established, the defendant must prove to the court that the amount realisable is lower. The Crown need not provide a prima facie case of hidden assets. That approach was consistent with Benjafield [2001] 2 Cr. App.R. (S) 47, as approved in the House of Lords at [2002] 2 W.L.R. 235, and was applied in R v Barnham [2005] EWCA Crim 1049.

3. The court accepted that the judge had conducted a thorough inquiry and had remained alert to the risk of serious injustice. The appellant could have given, or called, evidence concerning his realisable assets. His damaged credibility did not excuse his decision not to do so. The judge was entitled to infer that the appellant had not shown his realisable assets to be less than his benefit.

4. The £2.3 million spent purchasing heroin was not comparable to a known double count in the value of an identified house. The trafficking was a continuing enterprise involving purchases, sales, profits and reinvestment. In the absence of evidence explaining what became of the drugs, their market value, or the proceeds realised, the expenditure did not require a deduction from the realisable amount.

5. However, consecutive default imprisonment would have produced a total of 18 and a half years. Applying totality, the court reduced the default term to five years’ imprisonment.

• Court of Appeal (Criminal Division): Allowed the appeal only to reduce the imprisonment term in default of payment from seven and a half years to five years.

• Luton Crown Court: On 24 February 2004, made a confiscation order of £3,179,080.68 under the Drug Trafficking Act 1994, with 12 months to pay and seven and a half years’ imprisonment in default.