Jones, R v

Under the Proceeds of Crime Act 2002, a defendant with a criminal lifestyle bears the burden of displacing the statutory assumptions. The burden is not discharged by an unparticularised assertion that a cash business was substantially legitimate or that funds were recycled as working capital.

In deciding whether the assumptions are incorrect or would create a serious risk of injustice, the court may give weight to the absence of records and the way the business was conducted. An appellate court will not interfere with factual findings on benefit or available amount that were properly open to the sentencing judge on the evidence.

The appellant pleaded guilty in the Magistrates’ Court to four offences of obtaining property by deception and one offence of handling stolen goods. The case was committed to Maidstone Crown Court for sentence. He received concurrent terms of imprisonment, compensation and costs.

In confiscation proceedings, the Crown Court found that he had a criminal lifestyle and made a confiscation order under the Proceeds of Crime Act 2002. It assessed benefit at £142,018.42 and the available amount at £25,257, less compensation.

The appellant appealed only against the confiscation aspect. He contended that his vehicle business was largely legitimate, that the statutory assumptions should be displaced, and that some vehicle-sale proceeds represented recycled working capital.

1. Appeal dismissed. The Crown Court was entitled to find that the appellant had not displaced the statutory assumptions under the Proceeds of Crime Act 2002.

2. The appellant accepted that, consistently with R [2003] EWCA Crim 690, the judge could treat the total value of the relevant cars as benefit. The court declined to refine or modify that approach.

3. The sentencing judge was entitled to reject the evidence that the business was otherwise honest and that approximately £10,000 in the bank account was recycled working capital. The appellant’s cash-only dealings, absence of business records, use of different names and addresses, and inability to identify any actual profit were relevant to whether the statutory assumptions were incorrect and whether their application would create a serious risk of injustice.

4. The judge was also entitled to find that the asserted sales of seven vehicles were not genuine transfers removing them from the available amount. There were no written records and none of the alleged purchasers was called to confirm the transactions.

5. The appeal sought to reopen factual findings that were open to the judge who heard the evidence. No point of principle arose, and there was no basis to disturb either the recoverable amount or the available amount.

• Court of Appeal (Criminal Division): Dismissed the appeal against the confiscation order: [2006] EWCA Crim 933.

• Crown Court at Maidstone: Made a confiscation order under the Proceeds of Crime Act 2002 following the appellant’s sentence.

• Magistrates’ Court at Maidstone: The appellant pleaded guilty to four offences of obtaining property by deception and one offence of handling stolen goods; the case was committed to the Crown Court for sentence.