Ford, R. v

For a confiscation order under the Criminal Justice Act 1988, an offender who contends that the amount realisable is below the benefit figure must establish that contention. An unmatured pension interest may be taken into account at its fund value where the offender has not proved that he cannot raise the relevant sum by reference to it. The absence of an ordinary sale market, or an immediately available lump sum equal to the fund value, does not by itself establish a lower realisable value.

If subsequent attempted realisation shows that assets were overvalued, the statutory certificate-of-inadequacy procedure supplies the appropriate safeguard.

The appellant had been convicted at Southwark Crown Court of assisting another to retain the benefits of criminal conduct, contrary to section 93A of the Criminal Justice Act 1988. He received six years’ imprisonment.

In confiscation proceedings the parties agreed a benefit figure of £148,350,000. The dispute concerned three pension plans acquired before the offending. They had a cash surrender value of just over £17,500 but a fund value of nearly £80,000. The judge included the fund value in the appellant’s realisable assets and made a confiscation order.

The appeal asked whether the plans should be valued only at their surrender value, or whether their fund value could be included in the amount that might be realised.

1. The appeal failed in substance. The court upheld the judge’s inclusion of the pension fund values when assessing the appellant’s realisable assets under sections 71 and 74 of the Criminal Justice Act 1988.

2. The plans could not be assigned and had no ordinary sale market. That did not decide the issue. The appellant retained an interest in the plans and had not proved that he could not raise money by reference to that interest. In particular, he called no evidence that he could not obtain the relevant sum from any source.

3. R v Cornfield [2007] 1 Cr App R(S) 124 did not assist the appellant. Its critical feature was that the defendant was bankrupt and had no remaining interest in the pension fund, which had vested in the trustee in bankruptcy. This appellant was not bankrupt and retained his interest.

4. There was no unfairness in the conclusion. If the appellant surrendered the policies and could obtain only their surrender values, he could seek a certificate of inadequacy under section 83 of the Criminal Justice Act 1988. That procedure would address any proved overvaluation while preventing him from retaining a substantial pension asset after serving his sentence.

5. The confiscation order was corrected for an agreed calculation error to £113,354.58. The twelve-month period for payment and the consecutive 18-month term of imprisonment in default were upheld.

• Court of Appeal (Criminal Division): upheld the confiscation order in principle, but corrected its amount to £113,354.58.
• Crown Court at Southwark: following the appellant’s conviction, made a confiscation order under the Criminal Justice Act 1988 and fixed the period of imprisonment in default.