Bates, R. v

Under section 16(4) of the Drug Trafficking Act 1994, the discretion to increase the amount recoverable under a confiscation order is unconfined, although it must be exercised judicially. No closed list determines which personal, financial or rehabilitative circumstances are relevant. Their weight depends on the facts of the particular case.

The statutory purpose remains to deprive a drug trafficker of realisable assets up to the assessed benefit from drug trafficking. This may include assets acquired legitimately after the original order. An increase is not inappropriate merely because it causes substantial personal difficulty, including the need to realise a home.

The appellant had been convicted of drug-trafficking offences. His benefit was assessed at £45,000, but the confiscation order was reduced on an earlier appeal to £1,470 because that was then the amount realisable.

After the appellant bought his former council house under right-to-buy legislation, the prosecution obtained a High Court certificate under section 16(2) of the Drug Trafficking Act 1994 that his realisable property had increased. The Crown Court then increased the amount recoverable to £43,530, with 12 months’ imprisonment in default.

On appeal, the issue was whether the judge had wrongly exercised the discretion under section 16(4), particularly by giving insufficient weight to the appellant’s home, family responsibilities, legitimate acquisition of the property, rehabilitation, ill health and the passage of time.

1. Appeal dismissed. The Crown Court had not erred in increasing the amount recoverable under the confiscation order to £43,530.

2. Section 16(4) of the Drug Trafficking Act 1994 confers a judicial but unconfined discretion. The court declined to prescribe in advance which considerations are, as a matter of principle, relevant or irrelevant. A sentencing judge may properly attach little or no weight to some circumstances and significant weight to others, according to the case.

3. The appellant’s asserted rehabilitation, legitimate acquisition of the house, family circumstances, ill health, financial difficulties and the adverse consequences of sale could potentially be relevant. They did not, however, make the increase inappropriate on these facts.

4. The court applied the statutory policy described in R v Tivnan [1999] 1 Cr App R(S) 92: realisable assets may be taken, whether or not they are the proceeds of trafficking, until the amount equivalent to the benefit from drug dealing has been disgorged. The fact that the appellant would suffer difficulty and inconvenience did not outweigh that purpose.

5. The court extended the time for payment by six months. It made no recovery of defence costs order.

• Court of Appeal (Criminal Division) — dismissed the appeal from the increased confiscation order and extended the time for payment by six months.

• Crown Court at Luton — on 24 May 2005, increased the amount recoverable under the confiscation order to £43,530, with 12 months’ imprisonment in default.

• High Court — on 24 May 2004, Bennett J granted a certificate of increase under section 16(2) of the Drug Trafficking Act 1994.

• Earlier Court of Appeal proceedings — on 29 July 1999, varied the confiscation order to £1,470 while leaving the benefit figure of £45,000 unchanged.