WB v R

Where the statutory assumptions under section 72AA apply, a defendant may rebut an assumed criminal benefit only by showing, on the balance of probabilities, that the relevant property or expenditure derived from lawful activity. Showing that money passed through a trading business is insufficient unless the defendant also establishes that the trading was probably honest.

The court must refuse an assumption where it is satisfied that it would create a serious risk of injustice. A fair hearing, reasonable latitude for an unrepresented defendant, and the absence of proper records caused by that defendant’s own choices may justify making the assumptions. An appellate court may itself determine a confiscation appeal and substitute its assessment where the original decision was flawed but the available material permits a fair rehearing.

The appellant pleaded guilty at Derby Crown Court to theft of a Porsche, making off without payment for petrol, and dangerous driving. Following convictions for qualifying offences, the prosecution sought confiscation under the Criminal Justice Act 1988.

The Crown relied on section 72AA assumptions in respect of unexplained transfers into the appellant’s bank accounts and state benefits. The sentencing judge made a confiscation order for £1,566,911, but the appellant appealed on grounds of apparent bias, factual error concerning alleged car trading, and unfairness while unrepresented.

The central issues were whether the original order could stand, whether the statutory assumptions should be made, and whether the appellant had shown that the alleged benefits came from lawful trading.

1. Appeal dismissed. The court held that the judge’s decision could not stand as a reasoned decision. His remarks gave an impartial observer the impression of bias, he confused the calculation of benefit and realisable assets, and he made an unsupported finding concerning car-trading profit without giving it proper effect.

2. The underlying hearing was nevertheless fair. Although the judge’s language was at times inappropriate, he allowed the appellant substantial latitude after he became unrepresented, including calling and recalling witnesses and producing further documents. The refusals of the two disputed adjournments were justified. The appellant’s lack of representation did not itself make the proceedings unfair.

3. Under section 72AA of the Criminal Justice Act 1988, the court was entitled to make the statutory assumptions. The appellant had not shown that a serious risk of injustice would arise. His alleged inability to obtain records did not materially hinder him beyond the consequences of his own failure to keep proper accounts. There was no basis to infer that the confiscation investigation was brought in bad faith.

4. The appellant did not discharge the burden of proving that the unexplained transfers arose from lawful activity. The court accepted that he traded in cars and watches, and that much of the money might have passed through trading. That did not establish lawful origin. The evidence of dishonesty, car clocking, false registration plates, stolen property, dishonest benefits claims, and the absence of reliable records meant that he could not show that the trading was probably honest. Only a £50,000 payment for residual car stock was accepted as probably honest.

5. Exercising its power under section 11(3)(b) of the Criminal Appeal Act 1968, the court reassessed benefit at £1,862,189.44. That exceeded the confiscation order below, which the court could not increase. The existing order of £1,566,911 therefore remained. The appellant was to have six months to pay; the six-year default term remained. No further costs order was made.

• Court of Appeal (Criminal Division): Appeal dismissed in [2006] EWCA Crim 3062. The court held that the Crown Court judge’s reasoning could not stand, but independently reassessed confiscation and left the existing order in place.

• Derby Crown Court: His Honour Judge Benson made a confiscation order of £1,566,911 on 7 April 2004 following the appellant’s convictions and sentence.