Lambert & Anor v R. (Rev 1)

Under the Proceeds of Crime Act 2002, a defendant who jointly obtains criminal benefit obtains the whole benefit in law. Where the statutory conditions are met, the court must make a confiscation order for that benefit, subject to the defendant’s available amount. It has no discretion to apportion joint benefit merely because separate orders may in aggregate exceed the benefit obtained by the joint enterprise.

Such an order is not disproportionate under article 1 of the First Protocol where it deprives the individual defendant of benefit which he obtained and does not exceed his realisable assets. The risk of aggregate recovery does not itself establish an abuse of process.

Lambert and Walding pleaded guilty to offences arising from their joint operation of a commercial cannabis-growing enterprise. The Crown Court at Swindon found that each had benefited from criminal conduct by £107,860 and had sufficient realisable assets. It made confiscation orders against each appellant for that full sum.

The appellants accepted that the statutory conditions for confiscation were met. They contended that the benefit should have been divided equally between them because otherwise the aggregate orders could exceed the joint benefit. Alternatively, they alleged an abuse of process. The central issue was whether the statutory duty to make confiscation orders permitted apportionment between joint participants on proportionality grounds.

1. Appeals dismissed. A person who jointly obtains criminal property obtains the whole joint benefit in law. Applying R v May [2008] AC 1028 and Green [2008] AC 1053, the court held that the statutory principles were of general application and excluded apportionment in the circumstances of these appeals.

2. The calculation of benefit under section 4, recoverable amount under section 7, and the duty under section 6(5) of the Proceeds of Crime Act 2002 had to be made by applying the statutory language. Section 6(5) imposed a duty to order payment of the recoverable amount. It did not permit an implied discretion to reduce that amount to a defendant’s perceived share of joint criminal benefit.

3. It was not disproportionate under article 1 of the First Protocol to require each appellant to pay the full joint benefit, provided that the order did not exceed his own realisable assets. Confiscation serves both to deprive drug dealers of criminal benefit and to deter drug dealing. In a drug-dealing case there was no identifiable financial loser seeking compensation, so the description of the result as “double recovery” was inapt.

4. The court clarified that the earlier Court of Appeal discussion in R v May [2005] 1 WLR 2092 did not preserve a power to apportion. The House of Lords’ general agreement with that court’s reasoning concerned its rejection, not its tentative suggestion, of apportionment.

5. The abuse of process argument also failed. A substantial confiscation order was inevitable on the proper statutory analysis. Shabir concerned oppressive use of the criminal-lifestyle regime through the framing of charges and was materially different.

• Crown Court at Swindon: HHJ Hart found that each appellant had benefited by £107,860 and made a confiscation order for that amount against each of them.
• Court of Appeal (Criminal Division): The court dismissed the appeals and upheld the confiscation orders: [2012] EWCA Crim 421.