Moss, R. v

Under the third criminal-lifestyle assumption in section 10(4) of the Proceeds of Crime Act 2002, expenditure must first be shown to have been incurred by the particular defendant. Joint criminal liability does not permit the court to attribute the whole expenditure of a joint venture to each conspirator. Benefit remains a factual question and may differ between conspirators.

The assumption must not be applied contrary to common sense. Where the evidence does not permit a finding of a defendant’s contribution, the court cannot infer that he funded the entire venture. Property held after conviction may be subject to section 10(3) without a temporal cut-off, subject to the serious-risk-of-injustice safeguard in section 10(6).

The appellant pleaded guilty at St Albans Crown Court to conspiracy to import cocaine and numerous drug offences. Having found that he had a criminal lifestyle, the Crown Court made a confiscation order for £1,433,753 and assessed his benefit at £4,357,823.

The principal appeal issue concerned £2.15 million attributed to the purchase of cocaine recovered from the yacht Are Nui. The judge could not determine how much the appellant had paid, but treated him as having funded the full purchase price under the third assumption in section 10(4) of the Proceeds of Crime Act 2002. The appeal asked whether joint participation justified that use of the assumption.

1. Appeal allowed in part. The court upheld the challenge to the inclusion of £2.15 million in the appellant’s benefit. The assessed benefit was reduced accordingly, while the amount of the confiscation order was unaffected on the evidence before the court.

2. There is a material distinction between criminal liability in a joint enterprise and the benefit obtained by an individual conspirator. Although each participant may be criminally liable for acts done in furtherance of the conspiracy, the amount of benefit obtained by a particular defendant is a question of fact. Different conspirators may obtain different benefits. This was consistent with the authorities discussed, particularly Green [2008] UKHL 30, and the summary in Sivarman [2008] EWCA Crim 1736.

3. The third assumption in section 10(4) of the Proceeds of Crime Act 2002 proceeds on the common-sense premise that the defendant incurred the expenditure and therefore had funds to spend. It cannot be used to deem a conspirator to have possessed the aggregate of the contributions made by all participants. As the judge had found it impossible to determine the appellant’s contribution, it was wrong to attribute the full purchase price to him. A proportionate contribution might have been found on appropriate evidence, but the prosecution’s alternative case was advanced too late and could not fairly be entertained without further factual inquiry.

4. The court refused further leave to appeal. The judge had fairly considered the £550,000 payment after the appellant had an opportunity to address it. There was no arguable legal error in applying section 10(3) to property held after conviction, subject to section 10(6), or in the challenged property valuations. The order was also varied by agreement to reflect the Crown Court judge’s intention.

• Court of Appeal (Criminal Division) — allowed the appeal concerning the £2.15 million benefit item and varied the confiscation order’s benefit assessment; refused leave on the remaining disputed grounds.
• St Albans Crown Court — the appellant pleaded guilty on 8 December 2005 to conspiracy to import cocaine and other drug offences. On 6 March 2008, following a criminal-lifestyle finding, the court made a confiscation order for £1,433,753 and assessed benefit at £4,357,823.
• Earlier appeal — the travel restriction order imposed at sentence was reduced from 25 years to 15 years. No citation is stated.