Jones, R v

Where the statutory preconditions are met and a defendant has benefited from criminal conduct, the court must determine the recoverable amount and make a confiscation order under the Proceeds of Crime Act 2002. The recoverable amount reflects the statutory calculation of benefit and available amount.

Section 10(6) does not confer a general discretion to refuse an order because it would be harsh or costly to enforce. It operates only when considering whether a particular statutory assumption should be made in calculating benefit. A serious risk of injustice concerns an unjust result produced by an assumption, such as double counting or conflict with an agreed basis of plea. Benefit remains benefit even if it has been spent or dissipated.

The Crown appealed under section 31 of the Proceeds of Crime Act 2002 against confiscation orders made by Judge Bidder QC on 26 October 2005 concerning four defendants convicted of drug-related offences.

Statements prepared under the Act assessed benefit for each defendant but identified no available assets. The judge made no confiscation orders. He considered that benefit received by three defendants had been ephemeral and that applying the statutory assumptions would create a serious risk of injustice. He also held that there was no evidence of benefit in relation to Paul Lawes.

The central issue was whether section 10(6) permitted the judge to decline to make confiscation orders after finding benefit.

1. Appeal allowed. The judge erred in finding that there was no evidence of benefit in relation to Lawes. Barry Jones’s section 9 statement supplied such evidence, and there might be further evidence. That issue required determination in the Crown Court.

2. Where the conditions in section 6 are satisfied, the court must first decide whether the defendant has a criminal lifestyle and then determine the relevant benefit. It must next determine the recoverable amount and make a confiscation order requiring payment of that amount. Sections 7, 8 and 9 provide the statutory calculation by reference to benefit and the available amount; the recoverable amount is essentially the lower figure.

3. Section 10 applies when determining benefit for a defendant with a criminal lifestyle. Section 10(6) permits the court to refrain from making a particular assumption only if it is incorrect or would create a serious risk of injustice. It moderates the calculation of benefit. It does not give the judge a general discretion to decide that no confiscation order would be fair.

4. Hardship caused by a confiscation order, the dissipation of benefit, and the anticipated expense of enforcement do not constitute a serious risk of injustice under section 10(6). The relevant injustice must result from operation of an assumption, for example through double counting or conflict with an agreed factual basis for sentence.

5. The judge found benefit in relation to the other three defendants but did not determine it. The Court remitted all four cases to the Crown Court at Cardiff for the statutory calculations to be undertaken before a judge other than Judge Bidder QC.

• Court of Appeal (Criminal Division): Allowed the Crown’s appeal under section 31 of the Proceeds of Crime Act 2002 and remitted the confiscation proceedings for redetermination: [2006] EWCA Crim 2061.

• Crown Court: On 26 October 2005, Judge Bidder QC made no confiscation orders in respect of the four defendants.