Ajibade, R. v

For a drug courier, seized controlled drugs cannot be given a value for confiscation merely by using their unlawful wholesale value. The relevant market value must be the value obtainable by a lawful sale. Where the drugs cannot lawfully be sold, their value cannot constitute the offender’s benefit.

The Proceeds of Crime Act 2002 did not displace that principle. Accordingly, where the cash found with the courier had been excluded from the statutory assumptions and the asserted benefit consisted only of the seized drugs’ wholesale value, a confiscation order could not stand.

The appellant pleaded guilty in the magistrates’ court to being knowingly concerned in the fraudulent evasion, or attempted fraudulent evasion, of the prohibition on importing Class A controlled drugs. She had arrived from Nigeria carrying 1.93 kilograms of cocaine concealed in a body corset, together with cash.

At the Crown Court, the judge made a confiscation order of £4,400 under the Proceeds of Crime Act 2002. The judge excluded the cash from the statutory assumptions, but assessed benefit by reference to the wholesale value of the cocaine. The appellant appealed against the confiscation order alone.

The central issue was whether the seized cocaine could constitute benefit despite having no lawful market value.

1. Appeal allowed. The confiscation order was quashed.
2. The court applied the principle stated in R v Dore [1997] 2 Cr App R(S) 152. Drugs which cannot lawfully be sold have no market value for confiscation purposes. This remained so even if, before seizure, the drugs could be regarded as property held by the offender.
3. The court accepted that the Proceeds of Crime Act 2002 did not alter that principle when calculating benefit. The Crown Court had excluded the cash under section 10(6). The wholesale value of the cocaine was therefore the sole basis on which benefit had been assessed.
4. The appellant was a courier. There was no finding that she had bought the drugs or incurred expenditure in acquiring them. It was consequently wrong to treat their wholesale value, £44,677, as her benefit. The court made no further inquiry.

• Court of Appeal (Criminal Division) — allowed the appeal and quashed the confiscation order: [2006] EWCA Crim 368.
• Crown Court at Isleworth — on 25 February 2004, Judge Lowen made a confiscation order of £4,400, with two months’ imprisonment in default.
• Magistrates’ court — on 8 August 2003, the appellant pleaded guilty and was committed to the Crown Court for sentence.