Barnett, R v

For confiscation proceedings under section 8 of the Proceeds of Crime Act 2002, an earlier assessment of benefit from general criminal conduct fixes the starting point for a later assessment where the earlier court was required or entitled to apply the statutory assumptions. This remains so where the earlier benefit figure was agreed and did not result from a full financial investigation.

A prosecutor’s failure to serve the notice required by the earlier confiscation regime does not remove the court’s jurisdiction or entitlement to consider confiscation. The earlier assessment therefore prevents a later court from reassessing benefit before the date on which it was made.

The appellant had operated brothels in Manchester. In 2005 he pleaded guilty to offences of living on prostitution. The Crown and defence agreed that a confiscation order of £21,017.34 should be made under the Criminal Justice Act 1988.

Following later convictions for further brothel-related offences, the appellant was found to have a criminal lifestyle. At a confiscation hearing in 2011, the Crown Court assessed his benefit from general criminal conduct at more than £5 million, while making a confiscation order of £4,000. The assessment included benefit obtained before the 2005 order.

The appeal concerned whether sections 8(8) and 10(9) of the Proceeds of Crime Act 2002 required the 2005 assessment to be treated as fixed when calculating later benefit.

Appeal allowed. The court left undisturbed the confiscation order of £4,000, but set aside the Crown Court’s benefit assessment and substituted £873,010.

1. Sections 8(3) and 8(4) of the Proceeds of Crime Act 2002 apply where an earlier confiscation order concerned benefit from general criminal conduct. The earlier assessment must then be treated as the defendant’s benefit at that time. Under section 8(8), the relevant earlier regime is one under which the court was either required or entitled to make the statutory assumptions.

2. The 2005 order qualified. Although its £21,017.34 benefit figure was agreed and was substantially below the actual proceeds of the criminal activity, it was still an assessment for these purposes. The court rejected the proposition that the earlier agreement could be reopened merely because no full proceeds-of-crime investigation had then been undertaken.

3. The absence of a prosecutor’s written notice under section 71(1)(a) of the Criminal Justice Act 1988 did not deprive the earlier court of jurisdiction or entitlement to consider confiscation. The court followed Sekhon and Others [2003] 1 WLR 1655 and R v Simpson [2004] QB 118. Defects in such a notice did not prevent the court from exercising confiscation powers, particularly after the amendments giving it power to act of its own motion.

4. Accordingly, section 10(9) fixed the relevant day at 10 October 2005, when the earlier benefit was assessed. Benefit before that date could not be included in the later assessment. The parties agreed that the benefit for the remaining period was £873,010.

• Court of Appeal (Criminal Division): Allowed the appeal against the benefit assessment in the confiscation order. The court substituted £873,010 for the Crown Court’s assessment, while leaving the £4,000 confiscation order in place.
• Manchester Crown Court: In 2011, assessed benefit from general criminal conduct at more than £5 million following later convictions for brothel-related offences.
• Manchester Crown Court: In 2005, made an agreed confiscation order of £21,017.34 under the Criminal Justice Act 1988.