Lister, R. v

In confiscation proceedings, the valuation of benefit is a fact-driven exercise. Benefit from illegal drugs is assessed by reference to the illicit market in which the defendant was expected to dispose of them for profit. This differs from the available amount, for which the relevant market must be one that the defendant can use lawfully. Where the findings establish intended onward street sale, and there is no contrary evidence, immature cannabis may be valued by its likely mature yield and street value rather than its value when seized.

The appellant pleaded guilty to two offences of producing cannabis. Police had found an immature cannabis grow at one address and drying cannabis heads at his home. Following a Newton hearing, the Crown Court rejected his account that he had no financial interest in the grow and that the cannabis at his home was for personal use.

At a later confiscation hearing, the judge made an order for £11,730. The appeal challenged the inclusion in the benefit figure of the prospective yield of plants which were about two weeks from maturity. The central issue was whether benefit had to be valued at the plants’ worth when police seized them.

1. Appeal dismissed. The confiscation order of £11,730 represented a correct and proportionate assessment of the appellant’s benefit.

2. The valuation of benefit is fact-driven. In assessing benefit from illegal drugs, the court must use the market in which the defendant was expected to dispose of them for profit. For cannabis intended for street distribution, that was the illicit street market.

3. This inquiry differs from assessing the available amount. Under section 9 of the 2002 Act, the relevant market for available amount must be one to which the defendant can resort lawfully. The appellant’s reliance on Islam [2009] UKHL 30 therefore confused the two exercises. That case concerned available amount following early interception of imported drugs, not the valuation of benefit.

4. The court followed its earlier decision in Elsayed [2014] EWCA Crim. 333. The Crown Court’s findings showed that the drugs were being produced and dried for onward street transmission. In the absence of evidence that the appellant intended wholesale disposal, the judge was bound to use the expert’s uncontested street-value assessment of the likely mature yield. The agreed valuation before the confiscation order provided further support for that conclusion.

• Court of Appeal (Criminal Division) dismissed the appeal against the confiscation order.
• Chichester Crown Court sentenced the appellant on 30 October 2012 and, on 17 May 2013, made a confiscation order for £11,730.