Druce v R.

In a confiscation appeal, a defendant who asserts that assets are no longer available bears the burden under section 7 of the Proceeds of Crime Act 2002. A judge may reject a speculative or unsupported account of what happened to funds and treat them as recoverable hidden assets. The same applies to alleged gifts where there is no evidence that they are irrecoverable.

An appellate court will not disturb those findings merely because an alternative explanation is suggested. It may correct a conceded double count in the benefit figure while otherwise dismissing the appeal.

The appellant had pleaded guilty at the Crown Court at Southwark to entering into or being concerned in a money-laundering arrangement and to possessing criminal property. He was sentenced to concurrent terms of 18 months’ imprisonment.

On 25 October 2010, Judge Robbins made a confiscation order for £326,906.74, with a consecutive default term of three years. The judge found that the available amount included £141,119.91 in hidden assets and £14,500.50 in tainted gifts to the appellant’s former girlfriend.

On appeal, the Crown accepted that £90,130 had been double counted in the benefit figure. The principal issues were whether the available amount wrongly included the alleged hidden assets and gifts, and whether the default period should be varied.

1. Appeal allowed to a limited extent. The Crown conceded that £90,130 recovered from a security box had been double counted. The benefit figure was therefore reduced from £1,257,275.14 to £1,167,145.14.

2. The court would not revisit the concession made before Judge Robbins that, subject to the double-counting point, the appellant had obtained the sums paid into the laundering accounts. The substantive appeal therefore concerned the available amount.

3. Under section 7 of the Proceeds of Crime Act 2002, the burden lay on the appellant to establish that the alleged assets were irrecoverable. His evidence gave no positive explanation for the £141,119.91. The suggestion that it might have been passed to unidentified men in car parks was no more than speculation. Judge Robbins was entitled to reject the appellant’s unreliable evidence and to find that the sum remained available as hidden assets.

4. The appellant likewise produced no evidence that the gifts to his former girlfriend were irrecoverable. The judge had been entitled to include them in the available amount. Neither finding was unjust or disproportionate.

5. The court refused to admit a fresh affidavit intended to explain the inadequacy of the appellant’s earlier oral evidence. It also declined to vary the default period. Save for correction of the benefit figure, the appeal was dismissed.

• Court of Appeal (Criminal Division): Allowed the appeal only to correct the conceded double counting in the benefit figure; otherwise upheld the confiscation order and default period.

• Crown Court at Southwark: On 25 October 2010, Judge Robbins made a confiscation order of £326,906.74, with a three-year consecutive term of imprisonment in default.

• Crown Court at Southwark: On 28 April 2009 the appellant pleaded guilty to offences under the Proceeds of Crime Act 2002; on 2 June 2009 he received concurrent sentences of 18 months’ imprisonment.