Jaffery v R.

In confiscation proceedings, the defendant bears the burden of showing that the available amount is less than the benefit. The court may infer hidden assets and assess a defensible not less than amount from all the evidence. That assessment must, however, be procedurally fair. Where the proposed lower-bound figure has not been properly canvassed with the parties, and may conflict with evidence, it cannot safely support a confiscation order.

A prosecutor’s statement under Proceeds of Crime Act 2002 section 16 need not identify every submission about hidden rewards or commission. The statutory focus is benefit, although the prosecution may advance relevant arguments at the confiscation hearing.

The appellant had been convicted of transferring criminal property contrary to section 327(1) of the Proceeds of Crime Act 2002. He operated a money service business through which approximately £48.3 million of criminal property was transferred overseas.

The Crown Court at Isleworth made a confiscation order for £4.83 million. The finding that the appellant’s benefit was £48.3 million was not challenged. The dispute concerned the available amount. Known realisable assets totalled about £42,000, but the judge inferred hidden assets by finding that the appellant had received commission of not less than 10% of the sums laundered.

On appeal, the appellant alleged procedural unfairness and contended that the 10% figure lacked an evidential basis.

Appeal allowed. The confiscation order was quashed and the issue of the recoverable amount was remitted to the Crown Court.

1. Under section 7 of the Proceeds of Crime Act 2002, the recoverable amount equates to benefit unless the defendant shows that the available amount is lower. A court may find that a defendant holds hidden assets worth at least a lower-bound amount where that conclusion is supported by the evidence.
2. The court applied the principles in Mehta [2009] EWCA Crim 1601. Those principles were equally capable of applying to a principal money launderer, rather than only to a person who committed the underlying profit-generating crime. The sentencing judge was entitled to infer that high-risk laundering attracted rewards exceeding ordinary commercial remittance rates.
3. There was no procedural error in the Crown advancing an argument about hidden rewards although its section 16 statement did not specifically allege a secret commission. Section 16 focused on benefit, and the statement had identified hidden assets and the reasons for the Crown’s belief. The appellant had not objected when the Crown advanced the argument at the hearing.
4. The judge’s selection of a 10% lower-bound commission could not safely stand. The parties had not been given a sufficient opportunity to address the level of reward or commission, and trial evidence may have indicated that money laundering could attract rates below 10%.

Exercising section 11(3A) of the Criminal Appeal Act 1968, the court directed the Crown Court to reconsider the available amount. Any fresh confiscation order must not deal more severely with the appellant than the quashed order, as required by section 11(3C).

• Court of Appeal (Criminal Division) — in [2013] EWCA Crim 360, allowed the appeal, quashed the confiscation order and remitted the recoverable-amount issue.
• Crown Court at Isleworth — made a confiscation order of £4,830,000 on 16 April 2012, with seven years’ imprisonment in default.