Attorney General's Reference No. 83 and 84 of 2004

Under the Drug Trafficking Act 1994, a conviction for a drug-trafficking offence permits a confiscation inquiry extending beyond the period of the offence charged. The statutory assumptions may cover property or expenditure during the six-year period. Their use does not create a serious risk of injustice merely because the assets were unrelated to the indictment or because the defendant was acquitted of a particular earlier conspiracy.

Confiscation is a distinct statutory process from imprisonment. The court must nevertheless consider whether a statutory assumption would cause a serious risk of injustice in the individual case. Where the realisable amount is less than the assessed benefit, the confiscation order is limited to the realisable amount.

This was a resumed reference by the Attorney General under section 36 of the Criminal Justice Act 1988. An earlier Court of Appeal decision had held that the Crown Court judge's refusal to adjourn or postpone confiscation proceedings was unduly lenient: [2006] EWCA Crim 796.

Jerome Legall had pleaded guilty to conspiracy to supply cocaine. He had also been acquitted of a separate conspiracy count after covert evidence was ruled unfit for a jury. Tracy Macaulay had pleaded guilty to the conspiracy involving Legall. The central issue was whether applying the statutory confiscation assumptions to Legall's six-year financial history would create a serious risk of injustice because of the acquittal.

1. Confiscation orders were made. The court rejected Legall's preliminary objection and determined the confiscation proceedings itself. It ordered Legall to pay £148,000 within six months, with three years' consecutive imprisonment in default. It ordered Macaulay to pay £54,395.16 within three months, with two years' imprisonment in default.
2. The court followed R v Lazarus [2004] EWCA Crim 2297. A conviction for a relevant drug-trafficking offence opens a confiscation inquiry into property handled during the statutory six-year period. The inquiry is not confined to the proceeds of the offence charged. The defendant may rebut the assumptions on the civil standard, while the court must guard against a serious risk of injustice.
3. Legall's acquittal on count 1 did not establish that he had not engaged in any drug trafficking during that period. It established only that he was not guilty of the particular conspiracy alleged, involving specified dates and persons. Accordingly, the acquittal did not itself make the statutory assumptions unjust. The contrast with R v Lunnon [2004] EWCA Crim 1125 was clear because the Crown in that case had accepted that the offender had no earlier involvement in drug trafficking.
4. References to double jeopardy were misplaced. Under the Drug Trafficking Act 1994, imprisonment and confiscation are separate but parallel consequences. The scheme had been held compatible with article 6(1) and (2) of the Convention in R v Benjafield [2002] 2 Cr App R(S) 71. The court nevertheless remained bound to consider actual injustice under section 4(4).
5. The parties agreed the benefit and realisable-property figures. Since each offender's realisable amount was lower than the assessed benefit, section 5(3) required recovery of the realisable amount.

1. Court of Appeal (Criminal Division): On the resumed Attorney General's reference, the court rejected Legall's serious-risk-of-injustice argument and made confiscation orders.
2. Court of Appeal (Criminal Division): The Attorney General was granted leave and the Crown Court's refusal to adjourn or postpone confiscation proceedings was held unduly lenient: [2006] EWCA Crim 796.
3. Crown Court: On 22 March 2004, the judge refused to adjourn or postpone the confiscation proceedings following the offenders' convictions and sentences.