Griffin, R v

A confiscation order reduced to a nil amount under section 17(4) of the Drug Trafficking Act 1994 may later be increased under section 16 when realisable assets increase. The original order, made for less than the assessed benefit under section 5(3), remains the statutory basis for reopening the amount recoverable. Nothing in sections 5, 16 or 17 removes that power because a previous reduction was to nil.

For Article 6(1) purposes, confiscation proceedings must be assessed over the whole period from charge. The decisive practical inquiry is whether the state acted without unreasonable delay after obtaining significant and clear evidence of the defendant’s means. The Crown Court’s discretion under section 16(4) is a further procedural safeguard.

R v Griffin concerned confiscation following the appellant’s guilty plea to conspiracy to supply heroin. The Crown Court originally assessed his benefit from drug trafficking at £95,000 and ordered confiscation of £10,100, being his then realisable assets.

After that cash was forfeited under section 27 of the Misuse of Drugs Act 1971, a High Court certificate of inadequacy led the Crown Court to reduce the amount recoverable to nil. Following his release, the appellant acquired assets of £33,897. High Court certificates under section 16 of the Drug Trafficking Act 1994 were issued, and Judge Lea increased the amount recoverable to that sum.

The appellant contended that a nil reduction prevented any later increase and that the renewed proceedings breached Article 6(1) of the ECHR.

1. Appeal dismissed. The Crown Court had power to increase the amount recoverable to £33,897, and the renewed confiscation proceedings did not breach Article 6(1) of the ECHR.
2. Section 17(4) of the Drug Trafficking Act 1994 was wide enough to permit substitution of a nil amount where that was just in all the circumstances. The statutory contrast in section 5(3)(b) between a nominal amount and nil concerned the form of an initial confiscation order. It did not restrict the later variation power in section 17(4).
3. The original order had been made under section 5(3) for less than the assessed value of the appellant’s benefit. Section 16 therefore remained engaged. Neither section 16 nor section 17 provided that a later reduction to nil extinguished the power to reopen the amount recoverable when realisable assets increased. That construction accorded with the confiscation regime’s purpose of recovering criminal benefit, and with Soneji [2005] UKHL 49, In the matter of Saggar [2005] EWCA Civ 174 and Tivnan [1999] 1 Cr App R (S) 92.
4. Once the High Court issued a section 16(2) certificate, section 16(4) gave the Crown Court a discretion whether to substitute the increased amount. No separate issue arose on the exercise of that discretion, subject to the Article 6 argument.
5. Confiscation forms part of sentencing, so the reasonable-time requirement applied from charge and covered the whole period. However, the relevant inquiry was whether the state had sat on its hands after significant and clear evidence of the defendant’s means emerged, or had moved without unreasonable delay. The appellant knew the assessed benefit and remained at risk of a section 16 application while assets existed and the assessed benefit remained undisgorged. The discretion under section 16(4) also protected against unfairness.
6. There was no assertion or evidence of unreasonable delay by the prosecution, police or court in obtaining certificates or seeking the increase. The time elapsed and completion of the substantive sentence did not, without such delay, establish an Article 6 breach. Judge Lea’s order was therefore proper.

• Court of Appeal (Criminal Division) Dismissed R v Griffin’s appeal and upheld the order increasing the amount recoverable under the confiscation order to £33,897.
• Crown Court at Derby Judge Lea rejected the appellant’s statutory-construction and Article 6 arguments and increased the amount recoverable from nil to £33,897.
• Crown Court at Derby After a High Court certificate of inadequacy, Judge Wait reduced the amount recoverable under the original confiscation order to nil on 30 September 2005.
• Crown Court at Derby Judge Stretton made the original confiscation order for £10,100 on 19 December 2002.