Younis, R. v

Section 23 of the Proceeds of Crime Act 2002 permits a current calculation of a defendant’s available amount and a just reduction where that amount is inadequate. It does not permit the defendant to relitigate findings made in the original confiscation proceedings. A defendant alleging a later shortfall must demonstrate what has happened to assets previously found to exist. The procedural change from the earlier confiscation legislation did not alter that rule.

The applicant pleaded guilty to drug-supply conspiracies and was made subject to a confiscation order. In the original proceedings, the Crown Court found that he had hidden assets. On a later application under section 23 of the Proceeds of Crime Act 2002, the judge reduced the order to reflect assets transferred to a person who was later made subject to a confiscation order, but refused any further reduction.

The applicant sought to contend that he had no assets apart from prison income and family gifts. The central issue was whether section 23 allowed him to challenge the earlier finding that he possessed hidden assets.

Decision

1. Leave was granted because the point had not previously been argued in relation to section 23 of the Proceeds of Crime Act 2002. The appeal was nevertheless dismissed.

2. Section 23 requires the Crown Court to calculate the available amount at the time of the variation application, applying section 9 as if the confiscation order were then made. If that amount is inadequate to meet the unpaid balance, the court may substitute a smaller amount which it considers just. The provision addresses a later inadequacy in assets; it is not a means of reopening the factual basis of the original confiscation order.

3. The court held that the earlier statutory procedure, although it involved an application to the High Court for a certificate of inadequacy before a return to the Crown Court, did not differ in substance on this point. The reasoning in Gokal v Serious Fraud Office [2001] EWCA Civ 368 and Re McKinsley [2006] 1 WLR 3420 remained applicable. A defendant cannot use the later procedure to repair deficiencies in the evidence originally advanced, or to assert that assets then found to exist never existed.

4. The applicant’s evidence went to the correctness of the 2006 finding concerning hidden assets, rather than to a post-order diminution of those assets. Judge Coleman was therefore correct to refuse a further reduction under section 23. A representation order was made for counsel.

• Court of Appeal (Criminal Division) Granted leave on the renewed application and dismissed the appeal, holding that section 23 of the Proceeds of Crime Act 2002 did not permit relitigation of the original hidden-assets finding.

• Crown Court at Peterborough In 2006, made a confiscation order after finding that the applicant had benefited from criminal conduct and possessed hidden assets. On 18 March 2008, Judge Coleman reduced the order to reflect transferred assets but refused any further variation.