Summers, R. v

In confiscation proceedings under Criminal Justice Act 1988, the defendant bears the continuing burden of proving, on the balance of probabilities and by clear and cogent evidence, that the realisable amount is less than the benefit figure. The prosecution need not establish a prima facie case that the defendant has hidden assets.

A sentencing judge should identify, at least generally, the evidential basis for the figures selected. A failure to do so makes the ruling defective, but does not require intervention where the appellate court can identify a rational and proper basis for the order and it is neither manifestly excessive nor wrong in principle.

The appellant pleaded guilty at Bristol Crown Court to 32 counts of obtaining money transfers by deception arising from a long-running investment fraud. A confiscation order of £4 million was made following a finding that his benefit exceeded £11 million. He had 18 months to pay, with six years’ imprisonment in default; compensation was to be paid from recovered sums.

He appealed only against the confiscation order. He contended that the judge had wrongly treated him as bearing the burden of disproving hidden assets, had not adequately explained the figures of £7 million and £4 million, and had made an excessive order.

The central issue was whether the appellant had shown that his realisable assets were below the benefit figure and whether the £4 million order was wrong in principle or manifestly excessive.

1. Appeal dismissed. The judge’s ruling was defective because it did not explain, even in broad terms, how the figures of £7 million unavailable as realisable assets and £4 million payable under the order had been reached. A general assertion that all the evidence had been considered was insufficient.

2. The defect did not establish an error of principle requiring the order to be set aside. Under section 71(6) of the Criminal Justice Act 1988, the defendant had to establish that the realisable amount was less than the benefit figure. That burden remained on him throughout. It was not for the prosecution to prove, or first make out a prima facie case, that he possessed undisclosed assets.

3. The court followed the established approach in Walbrook & Glasgow [1994] 15 Cr.App.R (S) 783, Anderson [2005] EWCA Crim. 3384, Barwick [2001] 1 Cr.App.R (S) 129 and Barnham [2006] 1 Cr.App.R (S) 16. The appellant’s dishonest, incomplete and evasive disclosure, his laundering of money, and his admitted willingness to conceal funds supported the judge’s conclusion that he had not discharged that burden.

4. Although the judge should have articulated his reasoning, there was a rational and proper basis in the evidence for the £7 million deduction from benefit and the resulting £4 million order. The order was neither manifestly excessive nor wrong in principle. The court emphasised that judges should nevertheless state the basis on which confiscation figures are reached.

• Court of Appeal (Criminal Division): Appeal against the confiscation order dismissed: [2008] EWCA Crim 872.
• Crown Court at Bristol: Following guilty pleas to 32 counts of obtaining a money transfer by deception, made a confiscation order of £4 million on 15 March 2007.