Singh, R. v

Under section 10(6) of the Proceeds of Crime Act 2002, a defendant seeking to displace the statutory confiscation assumptions must provide clear and cogent evidence that an assumption is incorrect, or establish a serious risk of injustice. A court is not required to make an arbitrary allowance for legitimate trading merely because some legitimate activity is possible.

In assessing those issues, the court may consider the defendant’s credibility, the absence or fabrication of accounts, the reliability of invoices, and evidence of unrecorded cash trading. Where the defendant’s own record keeping makes any legitimate proportion impossible to identify, the court need not speculate by selecting a percentage discount.

The appellant appealed against a confiscation order of £585,422.63 made at Luton Crown Court following convictions for offences concerning counterfeit goods. The confiscation regime under the Proceeds of Crime Act 2002 applied because the offences gave him a criminal lifestyle.

The judge calculated benefit by reference to bank-account credits and cash expenditure on supplier invoices. The appellant contended that this produced double counting, that the invoices demonstrated legitimate trading, and that a discount was needed to avoid injustice. The central issue was whether he had displaced the statutory assumptions or shown a serious risk of injustice under section 10(6).

1. The appeal was dismissed. The Crown Court judge was entitled to leave the statutory assumptions in place and to assess benefit at £585,422.63.

2. Section 10(6) of the Proceeds of Crime Act 2002 required the appellant to show either that a particular assumption was incorrect or that making it created a serious risk of injustice. The court followed the requirement for clear and cogent evidence stated in R v Walbrook & Glasgow [1994] Crim LR 613. It explained that R v DePrince [2004] 2 Cr App R(S) 91 did not require a judge to grant a percentage discount where the evidence did not displace the assumptions.

3. The judge had properly assessed the evidence as a whole. The appellant had no reliable contemporaneous accounts, had produced books for the proceedings which the judge found deceptive, and was wholly lacking in credibility. The judge was entitled to regard invoices from suppliers with relevant adverse trading histories with grave suspicion, particularly against the absence of other records.

4. The judge was also entitled to find substantial unrecorded cash trading. Any possible overlap between bank credits and invoice expenditure was capable of being more than offset by that off-record trading. The court followed R v Jones [2006] EWCA Crim 933 in treating cash-only dealings and absent records as material both to rebuttal of the assumptions and to the risk of injustice.

5. A finding in the earlier magistrates’ proceedings that some trading was legitimate did not undermine the confiscation decision. Those proceedings concerned different evidence, a limited seizure, and did not require application of the statutory assumptions. The judge was not obliged to speculate about an unascertainable legitimate percentage.

6. The court ordered the appellant to pay the £300,000 portion of the confiscation order within 28 days and the balance within three months. It also ordered prosecution costs of £3,500 on the appeal, with both those costs and the lower-court costs payable within seven days.

• Court of Appeal (Criminal Division) Dismissed the appeal against the confiscation order: [2008] EWCA Crim 243.

• Luton Crown Court Made a confiscation order of £585,422.63 on 5 May 2006 following the appellant’s convictions.

• Magistrates’ Court District Judge Callaway found the relevant summonses proved on 28 October 2004 and committed the appellant to the Crown Court for sentence.