Young, R. v

Where a defendant has a criminal lifestyle, the court must apply the required assumptions under Proceeds of Crime Act 2002, subject to the safeguards where an assumption is shown to be incorrect or would create a serious risk of injustice. A confiscation assessment is not flawed merely because it includes the value of criminal property and related tax liabilities, provided the calculation does not unjustly duplicate transactions. A court may assess substantial undisclosed realisable assets where the evidence shows concealment and the defendant gives no credible account of assets. An appellate court will not interfere with factual findings or a recoverable amount that are justified by the evidence and reached without legal error or unfairness.

Noel Young pleaded guilty to conspiracy to defraud HM Customs and Excise by evading VAT on imported high-value motor vehicles, and to concealing criminal property. The Crown Court at Liverpool made a confiscation order of £6,946,747.62 after finding that he had a criminal lifestyle, had organised the scheme for substantial profit, and had failed to disclose significant assets.

Young appealed against the order. He contended that the benefit calculation improperly double-counted vehicle values, sale proceeds, VAT and bank-account credits. He also challenged the assessment that he retained hidden assets and alleged unfairness in the confiscation hearing. The central issue was whether the judge's approach to benefit and the recoverable amount under the Proceeds of Crime Act 2002 was legally flawed or unjust.

1. Appeal dismissed. The court held that the Crown Court judge's approach and conclusions were not open to proper criticism.

2. The appellant had a criminal lifestyle. The required assumptions under section 10 of the Proceeds of Crime Act 2002 therefore applied, subject to section 10(6). The appellant did not dispute those matters or the relevant period for the inquiry.

3. The judge had made sustainable findings that the appellant was the organiser and driving force of the fraud, had acquired and dealt with assets under false names, and was neither truthful nor frank about his assets. The Court of Appeal rejected the suggestion that the judge's assessment of his role, credibility or the property transferred to him involved legal error or procedural unfairness.

4. The double-accounting challenge failed. The prosecution and judge had recognised the danger of a mechanical application of the assumptions and had adopted a pragmatic calculation. The final benefit figure included the value of vehicles transferred to the appellant and the VAT relating to them, rather than the much larger figure initially produced by a strict application of the assumptions. The treatment of bank-account lodgements was also deliberately limited to substantial credits into known accounts.

5. The judge was entitled to find that the appellant possessed appreciable hidden assets. Identified assets worth about £446,747 did not preclude that finding, given the evidence of aliases, foreign banking arrangements, the appellant's lifestyle, and his failure to provide credible disclosure. The judge took a broad and just assessment, fixing undisclosed assets at £6.5 million and making an order for a recoverable amount materially below the assessed benefit.

• Court of Appeal (Criminal Division) Dismissed Young's appeal against the confiscation order.
• Crown Court at Liverpool On 18 April 2008, made a confiscation order of £6,946,747.62 under the Proceeds of Crime Act 2002.