Taylor, R v

In confiscation proceedings under the Drug Trafficking Act 1994, expenditure within the statutory six-year period is presumed to have been met from drug-trafficking payments unless the defendant proves the assumption incorrect or establishes a serious risk of injustice. The defendant bears the evidential and legal burden on the balance of probabilities. A court need not speculate that later expenditure was funded by earlier legitimate money where the defendant has provided no response or evidence supporting that contention.

The appellant had been convicted of drug-trafficking, firearms and related offences. The Crown Court at Lewes made a confiscation order for £90,269.96 and imposed two years’ consecutive imprisonment in default.

The Criminal Cases Review Commission referred the confiscation issue under section 9 of the Criminal Appeal Act 1995. The appellant contended that £7,000 returned to him in 2000 as unconnected with drug trafficking should also have been treated as funding part of later cash expenditure included in the benefit calculation.

The central issue was whether that possibility displaced the statutory assumption governing expenditure under the Drug Trafficking Act 1994.

1. Appeal dismissed. The court upheld both the confiscation order of £90,269.96 and the two-year consecutive term in default.
2. The combined effect of section 4(2), section 4(3)(b) and section 4(4) of the Drug Trafficking Act 1994 required the court to assume that expenditure within the six years before proceedings was met from drug-trafficking payments. The assumption could be displaced if the defendant showed it was incorrect in his case, or if making it would create a serious risk of injustice.
3. The appellant bore the burden of showing, on the balance of probabilities, that the assumption was incorrect. That approach was supported by R v Dickens [1990] 2 QB 102. He had filed no response to the prosecution’s section 11 statement despite two orders, and neither gave nor called evidence in the confiscation proceedings.
4. There was therefore no basis to infer that the £7,000 returned in 2000 had funded expenditure incurred at least a year later. The available timing pointed against that inference. The court consequently refused to reduce the benefit figure. As that figure remained close to the upper end of the relevant bracket, there was also no basis to interfere with the default term.

• Court of Appeal (Criminal Division) — dismissed the appeal on a reference by the Criminal Cases Review Commission: [2006] EWCA Crim 872.
• Criminal Cases Review Commission — referred the confiscation issue under section 9 of the Criminal Appeal Act 1995.
• Court of Appeal (single judge) — refused leave to appeal against the confiscation amount and default term on 18 November 2003.
• Crown Court at Lewes — on 11 August 2003 made a drug-trafficking confiscation order for £90,269.96, with two years’ consecutive imprisonment in default.