Leeming, R v

Failure to serve a confiscation statement does not require the court to treat every allegation in the prosecutor’s statement as admitted. Under Proceeds of Crime Act 2002, section 17(3), the court retains a discretion and may not deem admitted an allegation that the defendant benefited from general or particular criminal conduct.

A substantial confiscation order should not be made, without notice, at a mention hearing in the defendant’s absence. Where the criminal-lifestyle assumptions are engaged, the defendant may disprove them with evidence. A substituted order should reflect the benefit from the proved specific offending, including any proper inflation adjustment.

The appellant was convicted of controlling prostitution for gain. Following failures to provide a full response to the prosecutor’s statement, the Reading Crown Court made a confiscation order of £1,079,644 at a mention hearing held without the appellant and without notice to him.

The judge treated the appellant as accepting both allegations about property and allegations that he had benefited from criminal conduct. On appeal, the Serious Organised Crime Agency accepted that the hearing had been unfair and that the order had been wrongly made. The parties also agreed that evidence obtained after the order rebutted the criminal-lifestyle assumptions, but that the appellant had benefited from the specific offence.

1. Appeal allowed. The court quashed the confiscation order of £1,079,644 and substituted an order for £221,331.

2. Section 17(3) of the Proceeds of Crime Act 2002 conferred a discretion; it did not compel the judge to treat the appellant as accepting the prosecutor’s allegations. In any event, section 17(3)(b) excluded allegations that the appellant had benefited from general or particular criminal conduct. The judge therefore exceeded the statutory power by treating benefit allegations as admitted.

3. The court held that it was also wrong to make a confiscation order of that severity on an application made without notice to the appellant and in his absence. The concession by the Serious Organised Crime Agency that there had been no fair confiscation hearing was well founded.

4. The offence was a criminal-lifestyle offence under section 75. That engaged the section 10 assumptions concerning property held during the preceding six years, with the burden on the appellant to disprove them. Evidence subsequently provided by the appellant did disprove those assumptions.

5. The appellant nevertheless accepted benefit from the specific offence. The agreed figure comprised rent of £66,730, credit-card payments of £124,587, and a section 80(2) inflation adjustment of £30,014. The court substituted a confiscation order for the resulting £221,331, payable within six months, with two and a half years’ imprisonment in default.

• Court of Appeal (Criminal Division) — allowed the appeal, quashed the original confiscation order, and substituted an order for £221,331.
• Reading Crown Court — on 14 December 2006 made a confiscation order for £1,079,644 following the appellant’s conviction.