Mahmood v R

In confiscation proceedings arising from a conspiracy, a participant may jointly obtain the full value of the property concerned. That conclusion depends on the capacity in which the participant received or controlled the property, not simply a label attached to his role in the conspiracy.

An assumption under Proceeds of Crime Act 2002, section 10(4), concerns the source of expenditure only after it is established that the defendant incurred it. It does not attribute all expenditure by co-conspirators to every conspirator. A defendant bears the burden of showing that the available amount is below the benefit figure, but the court may assess available assets from other evidence where appropriate.

The appellant pleaded guilty at Birmingham Crown Court to conspiring fraudulently to evade the prohibition on importing heroin. He was sentenced to 11 years and six months’ imprisonment and was later made subject to a confiscation order for £240,917.61.

The benefit figure comprised the value of the seized heroin, expenditure incurred during the conspiracy, and assumed subsistence expenditure during a criminal lifestyle. The appellant appealed the confiscation order. He challenged both the attribution to him of the drugs and co-conspirators’ expenses, and the finding that the recoverable amount equalled the benefit figure.

Following further submissions on R v Waya [2012] UKSC 51, the central issues were whether he had jointly obtained the drugs and whether the statutory assumptions permitted the attribution of all operational expenditure to him.

1. Appeal allowed in part. The court reduced both the benefit figure and recoverable amount by £3,756.01, representing expenditure on rugs, import duty and vehicle hire. In all other respects the confiscation order stood.

2. A conspirator may jointly obtain the whole value of property which is the subject of the conspiracy, as recognised in R v Waya [2012] UKSC 51. That result is not automatic. The inquiry is into the capacity in which the participant received the property: for personal benefit, for others, or jointly for both. Relative descriptions such as organiser, supervisor or courier may assist the evidential assessment but do not determine it. Applying that approach, the Recorder was entitled to find that the appellant, who supervised the drugs’ collection and onward transmission and occupied a central role with other conspirators, jointly obtained the drugs. The finding was neither unjust nor disproportionate.

3. The Recorder erred in attributing all the conspiracy’s operational expenditure to the appellant. Potential joint contractual liability between conspirators did not establish that each had actually incurred every expense. Section 10(4) of the Proceeds of Crime Act 2002 assumes the criminal source of expenditure only once expenditure by the particular defendant has been proved. Evidence or an appropriate inference was needed to show that the appellant paid a particular expense. No such finding was made for the excluded items.

4. The appellant failed to prove, on the balance of probabilities, that his available amount was lower than the remaining benefit figure. The court accepted that an assessment below benefit may in principle be made from other evidence, but the appellant had not given truthful or adequate disclosure and the Recorder was entitled to reject his account. The seizure and intended destruction of the drugs did not undo the benefit obtained or create double recovery.

• Court of Appeal (Criminal Division) — [2013] EWCA Crim 325: appeal against the confiscation order allowed only as to operational expenditure of £3,756.01; otherwise dismissed.
• Birmingham Crown Court — following the appellant’s guilty plea to conspiracy to import heroin, the Recorder imposed a confiscation order of £240,917.61. No lower-court citation was stated.