Mustafa, R. v Ayhan

Property included in a confiscation benefit figure under the statutory assumptions because it was said to be held after conviction cannot remain included where it is established that it belonged, and always belonged, to a third party. Such property was not held by the defendant and was not obtained through general criminal conduct.

The Court of Appeal may correct the benefit figure on appeal despite the defendant having agreed it at the confiscation hearing, particularly where an inflated figure could support a future increase in the recoverable amount.

The appellant had been convicted at Reading Crown Court of conspiracy to supply heroin and was made subject to a confiscation order under the Proceeds of Crime Act 2002. The agreed benefit figure included £440,000 for an alleged interest in two flats at Frome Road.

During later enforcement proceedings, the appellant's parents asserted third-party rights. By consent, the flats were removed from the recoverable amount and restraint order because they belonged to the parents. The benefit figure was not reduced.

The appeal concerned whether the benefit figure should also be corrected, notwithstanding the appellant's earlier agreement to it.

Appeal allowed. The court reduced the benefit figure from £3,675,000 to £3,223,000.

1. The flats had been included because the Crown Court found that the appellant had an interest in them. Since he had a criminal lifestyle, the court applied the assumptions in section 75 of the Proceeds of Crime Act 2002 and treated property held after conviction as obtained through his general criminal conduct.
2. The subsequent consent order acknowledged that the flats belonged to the appellant's parents, not to him. They had never belonged to him. The premises of the earlier assumption were therefore absent: the appellant had not held the flats after conviction and they could not be treated as obtained through his general criminal conduct.
3. The adjustment to the recoverable amount did not itself correct the benefit figure. That correction remained material because, if the appellant acquired assets later, the prosecution could seek under section 22 of the Proceeds of Crime Act 2002 to increase the realisable amount up to the recorded benefit figure.
4. The Court of Appeal had jurisdiction to entertain the appeal despite the appellant having agreed the benefit figure at the confiscation hearing. The Crown did not oppose the appeal, which was allowed to correct the artificially inflated figure.

• Court of Appeal (Criminal Division)—allowed the appeal and reduced the benefit figure to £3,223,000: [2009] EWCA Crim 2506.
• Crown Court at Reading—following the appellant's conviction, made a confiscation order. In later enforcement proceedings, a consent order removed the parents' flats from the recoverable amount but did not reduce the benefit figure.