R v Green (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

Where money or property connected with drug trafficking is received on behalf of several offenders jointly, each offender receives the whole property for confiscation purposes. The decisive matter is the capacity in which the recipient acts, rather than whether every offender physically handles the proceeds.

A confiscation order which deprives an offender of a benefit obtained in fact and law is not disproportionate merely because joint receipt may expose several offenders to orders calculated by reference to the same property. The order remains limited by each offender’s realisable assets. Clear United Kingdom legislation is construed according to its own meaning, irrespective of different legislative approaches adopted abroad to implement common international obligations.

The appellant directed a conspiracy involving the importation, distribution and laundering of the proceeds of large quantities of controlled drugs. Following his guilty pleas, the Crown Court assessed his drug-trafficking benefit by including proceeds received and partly retained by fellow conspirators. It made a confiscation order for £2.5 million.

The Court of Appeal, Criminal Division, in [2007] EWCA Crim 1248, revised aspects of the benefit calculation and reduced the order to £1,985,725. It nevertheless held that property received by one conspirator on behalf of the conspirators jointly was received in full by each of them.

The certified question was whether, where a payment or reward connected with drug trafficking is received jointly by two or more principals, each person’s proceeds under section 4(1)(b) of the Drug Trafficking Act 1994 include its whole value.

Appeal dismissed. The five-member Appellate Committee delivered a unanimous considered opinion. It held that the Court of Appeal had reached the correct conclusion for the correct reasons.

1. Per the Committee, the relevant reasoning in R v May [2008] UKHL 28 was to be treated as incorporated into the present opinion. Where two or more defendants obtain control of property jointly, each obtains the whole property for confiscation purposes. The corresponding rule applies under the drug-trafficking confiscation legislation.

2. Per the Committee, when one conspirator receives money or property on behalf of several conspirators jointly, every conspirator is regarded as receiving the whole of it under section 2(2) of the Drug Trafficking Act 1994. It is immaterial that the immediate recipient retains an agreed share before transferring the balance. The controlling question is the capacity in which the property was received.

3. Whether a recipient acted personally or for the conspirators jointly is a question of fact for the sentencing judge. Evidence that the appellant was the conspiracy’s directing mind entitled the judge to infer that the others followed his instructions and received sale proceeds for the conspiracy as a whole before retaining agreed amounts.

4. Per the Committee, the possibility of recovery calculated by reference to the same property from more than one offender did not invalidate the order. An order depriving an offender of a benefit obtained in fact and law is not disproportionate when confined to that offender’s realisable assets. Previous challenges to the proportionality of the confiscation regime had been unsuccessful.

5. Per the Committee, where the meaning of a United Kingdom statute is clear, its construction cannot be influenced by different legislation enacted abroad, even where other states may be implementing common international obligations.

The appeal was dismissed. The parties were invited to provide written submissions on costs within 14 days.

1. House of Lords: Dismissed the appeal and affirmed the Court of Appeal’s conclusion that each joint recipient receives the whole property for confiscation purposes: [2008] UKHL 30.
2. Court of Appeal (Criminal Division): Answered the certified question affirmatively, revised the benefit calculation and reduced the confiscation order to £1,985,725: [2007] EWCA Crim 1248, [2007] 3 All ER 751.
3. Manchester Crown Court: Following the appellant’s guilty pleas, Judge Steiger QC sentenced him to 13 years’ imprisonment and subsequently made a confiscation order for £2.5 million.