Shabbir, R. v

Under the Criminal Justice Act 1988, statutory assumptions about property must be applied to the particular asset and supported by the necessary findings of fact. An undisputed mortgage cannot be included as a defendant’s benefit. Where the source of an original deposit remains material, the court must first make a specific finding about that source before deciding whether, and to what extent, the net equity is benefit.

If those issues have not been properly determined, an appellate court should not resolve disputed facts itself. It may quash the confiscation order and direct a full rehearing, even though the property was acquired long before the offending.

The appellant pleaded guilty in the Crown Court at Wolverhampton to assisting illegal entry and to seven offences of assisting unlawful immigration. He received concurrent sentences of 54 months’ imprisonment. Following confiscation proceedings, the Recorder made an order for £148,550, calculated in part by treating the value of the appellant’s home as benefit.

The home had been bought in 1992 with a £17,000 deposit and a £50,000 mortgage. On appeal, it became common ground that the mortgage should not have been included in the benefit figure. The remaining dispute concerned the assumptions applicable to the deposit and to the home’s net equity. The central issue was whether the Recorder had made the findings necessary to sustain the confiscation order.

1. Appeal allowed. The court quashed the confiscation order and remitted all confiscation issues for a full rehearing before a differently constituted tribunal.
2. The Recorder’s approach to the home was misconceived. It was common ground that the £50,000 mortgage could not be included in the benefit figure. Further, the Recorder had not made a specific finding about the source of the £17,000 deposit before determining whether the home’s net equity was benefit under the statutory assumptions in the Criminal Justice Act 1988.
3. The court declined to decide those factual issues itself. Although the Recorder had generally found the appellant unreliable, the appellant’s evidence about the existence of the mortgage was, at least in that respect, correct. The age of the purchase did not make a rehearing inappropriate, particularly because the whole net equity, approximately £105,000, might be material to the benefit figure.
4. The court rejected the Crown’s proposed approach of treating only a proportion of the current equity as benefit by reference to the original deposit. Paragraphs 15 and 16 of Roach [2008] EWCA Crim. 2649 showed that, where the assumptions apply, it may be proper to treat the whole net equity as benefit.
5. As a partial rehearing was inappropriate, the court exercised its power under section 11(3A) of the Criminal Appeal Act 1968 to direct a full rehearing. Any sum already paid was not to be repaid unless and until the Crown Court made no fresh confiscation order.

• Court of Appeal (Criminal Division): Allowed the appeal against the confiscation order, quashed it, and remitted all confiscation issues for a full rehearing under the Criminal Appeal Act 1968.
• Crown Court at Wolverhampton: Following guilty pleas, imposed concurrent terms of imprisonment and later made a confiscation order for £148,550.