Hindley, R. v

Clear and reliable fresh evidence may establish that assets treated under the Proceeds of Crime Act 2002 assumptions as benefits of general criminal conduct were instead derived from an inheritance. Those assumptions are rebutted to that extent.

A confiscation order must exclude inherited monies which the evidence identifies. It may nevertheless include a separate sum for which the assumptions remain unrebutted, together with attributable interest. The appellate court may quash the original order and substitute an order reflecting the corrected benefit and available amount.

The appellant pleaded guilty at the Crown Court at Aylesbury to possessing cannabis, a class C controlled drug, with intent to supply. He received 21 months’ imprisonment. The same judge later made a confiscation order for £209,995.06 under the Proceeds of Crime Act 2002.

The order treated the balance in an ING bank account as available property derived from general criminal conduct. The appellant had maintained that nearly all of it was inherited from his mother, but did not produce the underlying material during the confiscation proceedings.

After leave and an extension of time had been granted, the appeal concerned whether fresh evidence of the will, probate, deed of variation and bank transactions should be admitted, and whether it rebutted the statutory assumptions.

1. Appeal allowed. The court admitted the appellant’s fresh evidence. Although his difficulty in obtaining it was partly of his own making, the evidence was clear, comprehensive and accepted by the Crown. It established the source of the ING account funds.

2. With the exception of the appellant’s initial £500 deposit, the account balance derived from payments made by his father pursuant to a deed of variation concerning the appellant’s mother’s estate. The identified payments totalled £188,000 and had accrued interest. They were not the appellant’s benefit from general criminal conduct.

3. The evidence therefore rebutted the assumptions applied under the Proceeds of Crime Act 2002 in respect of those inherited monies. The court indicated that evidence whose provenance was doubtful might not have been admitted under section 23 of the Criminal Appeal Act 1968, but that concern did not arise on the evidence before it.

4. The original confiscation order was quashed. The court deducted the ING account balance from the benefit figure found below, but added £500 and £60 interest because the assumptions remained unrebutted in relation to that sum. It substituted a confiscation order, representing both the benefit and available amount, of £23,153.26.

5. Payment was ordered within 28 days, with 12 months’ imprisonment in default. A defendant’s costs order was made.

• Court of Appeal (Criminal Division) — allowed the appeal, quashed the confiscation order of £209,995.06 and substituted an order for £23,153.26.

• Court of Appeal (Criminal Division) — the Full Court granted leave to appeal and an extension of time in [2011] EWCA Crim 680, leaving the admissibility of the fresh evidence to the appeal court.

• Crown Court at Aylesbury — the appellant pleaded guilty on 2 July 2008 and was sentenced to 21 months’ imprisonment. On 18 December 2008, the judge made the confiscation order under the Proceeds of Crime Act 2002.