Mahmood & Anor, R v

A confiscation order under Criminal Justice Act 1988 section 71 is mandatory once benefit and realisable assets have been determined, unless the statutory civil-proceedings exception applies. The Crown Court nevertheless retains a residual jurisdiction to stay confiscation proceedings for abuse of process.

A stay may be justified where, following full disclosure, the Crown agreed, represented or commonly understood that restitution would limit further confiscation, and then sought to depart from that position. The defendant must prove those circumstances. The possibility that the Crown’s total recovery will exceed the victim’s original loss does not itself establish abuse, since confiscation deprives offenders of the benefits of criminal conduct.

The appellants, brother and sister, pleaded guilty at the Crown Court at Guildford to assisting in the laundering of proceeds stolen by their brother from the Royal Mail. Their brother repaid £233,000 to the Royal Mail. The repayment was funded in substantial part by the sale and refinancing of family property and by family contributions.

On the appellants’ sentencing, confiscation proceedings under Criminal Justice Act 1988 section 71 resulted in agreed benefit and realisable-asset figures. The judge made confiscation orders despite the appellants’ submission that their contributions to the earlier repayment should be credited, and despite the prospect that total recovery might exceed the Royal Mail’s loss.

The appeals challenged only the confiscation orders. The central issue was whether the statutory scheme permitted a reduction, or whether the proceedings should have been stayed as an abuse of process.

1. The appeals were dismissed. Under section 71 of the Criminal Justice Act 1988, once benefit and realisable assets were agreed, the judge had no discretion to reduce the orders to reflect voluntary repayment. No circumstance engaged section 71(1C).
2. The judge was wrong to regard the statutory scheme as excluding any power to stay confiscation proceedings for abuse of process. The court accepted the Crown’s concession that such a residual jurisdiction existed, consistently with Hui Chi-ming v R [1992] A.C. 34 and Connelly v DPP [1964] AC 1254.
3. A stay could in principle be justified if, after full and proper disclosure, the Crown had agreed, represented or commonly understood that the appellants’ contributions would preclude confiscation or be credited against it, and then sought to resile from that position. An assurance given while the Crown acted through the Royal Mail would bind the Crown when it later acted through the Crown Prosecution Service.
4. However, the appellants produced no sufficient evidence of such an agreement, understanding or representation. The fact that total recovery might exceed the Royal Mail’s capital loss was irrelevant. Confiscation properly recovers benefits derived from criminal activity, as illustrated by R v Roy Williams [2001] 1 Cr App (S) 140.
5. Under section 10(3) of the Criminal Appeal Act 1968, the court could quash, vary or uphold the confiscation element of sentence. On the available material, no abuse of process was established and no variation was justified.

• Court of Appeal (Criminal Division) — dismissed the appeals against the confiscation orders: [2005] EWCA Crim 2168.
• Crown Court at Guildford — following guilty pleas to money laundering, imposed sentences and later made confiscation orders under section 71 of the Criminal Justice Act 1988. The appellants did not appeal their terms of imprisonment.