Harriott v R

A confiscation order must reflect the defendant’s actual beneficial interest in property. Legal title alone does not permit the whole beneficial ownership to be treated as the defendant’s realisable asset. Although a third party must ordinarily assert an interest at the High Court enforcement stage, the defendant may prove before the Crown Court that the available amount is lower because another person already has a beneficial interest. That interest exists independently of a court declaration. An appeal from a consent confiscation order may succeed where the hearing proceeded on an erroneous legal basis. The restriction on appeals founded merely on erroneous advice in negotiating an agreement does not prevent correction of such an error.

The appellant had been convicted of possessing cocaine with intent to supply. The Crown Court at Birmingham made a confiscation order of £37,349.84 under the Drug Trafficking Offences Act 1994.

The order treated the appellant’s share in the matrimonial home as entirely hers. Her husband had contributed to the mortgage and asserted an interest, but the judge held that he had no right to be heard and that any equitable interest had to be established in separate civil proceedings.

After subsequent divorce and enforcement steps, the appellant contended that her husband’s pre-existing beneficial interest meant that the original available amount was wrongly assessed. The central issue was whether the Crown Court could take that interest into account when fixing the available amount.

1. Appeal allowed. The confiscation order was quashed and replaced by an order specifying a recoverable amount of £15,671.84.

2. Under section 62(5)(a) of the Drug Trafficking Offences Act 1994, property held by a person includes the beneficial interest actually held. It does not make the whole beneficial ownership that person’s property merely because the legal title is in that person’s name. The court applied R v Buckman [1997] 1 Cr. App. R. (S.) 325 and Gibson v RCPO [2008] EWCA Civ 645.

3. The statutory scheme, explained in In Re Norris [2001] 1 WLR 1388, ordinarily requires a third party to pursue an interest at the High Court enforcement stage. That did not remove the Crown Court’s duty to determine the appellant’s realisable assets and available amount. The husband had no locus to intervene in the confiscation proceedings, but the appellant could herself have given evidence, or called him, to establish that she owned only a 12.5% interest.

4. The trial judge confused the evidential route with the substantive question. A beneficial interest, if established, exists without a court order creating it. The judge was led into error by insufficient or incorrect information and wrongly included the husband’s share in the available amount.

5. Hirani [2008] EWCA Crim 1463 did not bar the appeal. That case concerned alleged erroneous advice in agreeing a confiscation order. Here the hearing had proceeded on a mistaken legal basis, so the original result was wrong despite the parties’ earlier agreement.

• Court of Appeal (Criminal Division): Allowed the appeal against the confiscation order and substituted an order for £15,671.84: [2012] EWCA Crim 2294.
• Crown Court at Birmingham: Following the appellant’s conviction, made a confiscation order of £37,349.84 on 23 June 2005.