Whittington v R.

In confiscation proceedings under the Proceeds of Crime Act 2002, the court must follow the statutory questions in sequence. The prosecution must first prove, on the balance of probabilities, that the defendant obtained or held the property in issue, or incurred the expenditure. The assumptions in section 10 concern the criminal source of property already proved; they do not shift to the defendant the burden of proving that the property never existed or was not under his control.

The criminal standard applies only where the prosecution can establish past property or expenditure solely by proving uncharged criminal offending. Once benefit is proved, the defendant bears the burden of showing that the available amount is less than that benefit.

The appellant pleaded guilty to money laundering, conspiracy to supply amphetamine, and weapons and premises offences. At the Inner London Crown Court, a confiscation order of £9,672,176.69 was made under the Proceeds of Crime Act 2002, with ten years’ imprisonment in default.

The principal disputed benefit arose from a notebook in the appellant’s handwriting. The prosecution contended that its figures recorded cocaine or cash worth £8.8 million. The judge rejected the appellant’s account that he had merely copied information for another person, but stated that the burden of proof lay on him.

On appeal, the central issue was whether the judge had applied the correct burden and standard of proof when determining benefit and the recoverable amount.

1. Appeal dismissed. Although the judge misdirected himself by placing on the appellant the burden of disproving that the notebook represented property under his control, the Court of Appeal could determine the matter afresh and uphold the confiscation order.

2. The statutory exercise had to be conducted in sequence. The court must determine whether the defendant has a criminal lifestyle; whether he benefited from general criminal conduct; and whether he obtained property as a result of or in connection with that conduct. The prosecution bears the burden, on the balance of probabilities, of proving the existence of the property, including property obtained in the past.

3. The section 10 assumptions do not assist the prosecution on that prior issue. They address the source of property once the prosecution has proved that the defendant held it, received it, or incurred expenditure. They cannot reverse the burden where the defendant disputes that a document records property over which he had any power of disposition or control.

4. The Court applied the confined rule in R v Briggs-Price [2009] 2 WLR 1101. The criminal standard is required only where the Crown can prove past property or expenditure only by proving uncharged offences. It was not required here. The notebook and associated material were capable of proving, on the civil standard, that the appellant had obtained property; the Crown did not have to prove a separate cocaine-trafficking offence.

5. The unexplained cash, the notebook, and the reconstructed shredded documents established that the appellant had control or disposition over cocaine or cash worth about £8.8 million. The section 10 assumptions then applied. The appellant had not shown that their application was incorrect or created a serious risk of injustice.

6. Having proved benefit, the burden lay on the appellant to show that his available amount was less than that benefit. He gave no acceptable explanation of what had happened to the assets. The available amount was therefore no less than the benefit, and the order was upheld.

• Court of Appeal (Criminal Division). The appeal against the confiscation order was dismissed.
• Inner London Crown Court. On 1 August 2008, the judge made a confiscation order of £9,672,176.69 and imposed ten years’ imprisonment in default.