Mejia & Anor, R v

For confiscation under the Proceeds of Crime Act 2002, the market value of unlawfully imported drugs may be their value in the illicit market where no legitimate market exists. A later seizure does not remove the benefit obtained when the property was obtained.

An appellant cannot ordinarily advance wholly new valuation, obtaining, proportionality or abuse arguments for the first time on appeal where they would have required further evidence and findings at the confiscation hearing.

The appellants were convicted in connection with a conspiracy to import cocaine concealed in fibre-board doors. The doors were seized before the cocaine was extracted. At confiscation proceedings in the Crown Court, the judge valued the drugs at £537,540 and divided that benefit equally between the appellants.

They appealed against the valuation. Their original contention was that unlawfully saleable drugs had no market value. They also sought to advance new arguments about the value of cocaine-impregnated doors, whether Mejia had obtained property, and whether confiscation was disproportionate or an abuse of process.

The central issues were the applicable market for valuing the property and whether those new points could be raised for the first time on appeal.

1. Both appeals were dismissed. The court held that the appellants’ original challenge to the valuation could not succeed after R v Islam [2009] UKHL 30. In confiscation proceedings, the relevant market depends on the nature of the goods and the context. Where drugs have no legitimate market, their illicit-market value may be used to calculate benefit.

2. The court held that the appellants could not replace their Crown Court case with wholly new submissions on appeal. Had they argued that the property was the doors rather than extracted cocaine, that their value was limited to invoice or source cost, that Mejia had not obtained it, or that confiscation was disproportionate, the Crown could have called further evidence and the judge could have made additional factual findings. It was too late to raise those matters for the first time on appeal.

3. In any event, the new valuation arguments lacked merit. The value of 17.34 kg of pure cocaine was a reasonable indicator of the value of doors imported to enable its extraction and sale. The relevant question was the United Kingdom market value, not the apparent invoice price of the doors or the cocaine’s cost at source. R v Rose [2008] 2 Cr App R 15, concerning stolen goods, was inapposite.

4. The court also considered that Mejia’s organisational role, his involvement with the premises and the inference that he was present for delivery and the start of extraction gave a sufficient basis for finding that he had obtained the doors. Possession alone does not necessarily establish obtaining, but the circumstances did so here. The later seizure of the property did not reduce the benefit or prevent confiscation.

5. The unsuccessful conspiracy and seizure of the drugs did not make the order disproportionate, oppressive, punitive, or an abuse of process. R v Morgan [2008] EWCA Crim 1323 concerned a limited and materially different class of case. Leave to add the new grounds was refused.

• Court of Appeal (Criminal Division): Dismissed both appeals against confiscation orders and refused leave to advance new grounds.
• Inner London Crown Court: Judge Burn made confiscation orders on 31 October 2007 following convictions for conspiracy to supply cocaine.