Ali v R

In confiscation proceedings, a defendant subject to the criminal-lifestyle provisions must convincingly displace the statutory presumptions and provide a complete and honest account of assets if contending that the recoverable amount is below the benefit figure. The forfeiture of criminal property does not itself establish that the benefit figure must be reduced.

An appeal is not ordinarily an opportunity to introduce further and better evidence that could reasonably have been obtained for the original hearing. The absence of a reasonable excuse for failing to adduce such evidence is a powerful reason to refuse its admission under Criminal Appeal Act 1968.

The applicant was convicted at Winchester Crown Court of being knowingly concerned in dealing with controlled drugs, contrary to section 170(1)(b) of the Customs and Excise Management Act 1979. Confiscation proceedings were later conducted by a Recorder under Proceeds of Crime Act 2002.

The Recorder found that the applicant had a criminal lifestyle, rejected his account of the trading activity of his company, Wildberry Ltd, and made a confiscation order for £2,255,689.66. The applicant renewed his application for leave to appeal and sought to adduce a forensic accountant’s report as fresh evidence. He challenged the findings concerning alleged legitimate trading, the treatment of money in a Curaçao account, the valuation of a watch, and the inclusion of the value of forfeited drugs.

1. The renewed application for leave to appeal and the application to adduce fresh evidence were refused. The applicant had had 22 months between the two confiscation hearings to prepare evidence addressing Wildberry’s commercial activities. Those activities were plainly central because the statutory presumptions placed the burden on him to displace them. He had elected to rely on his accountant rather than obtain an independent forensic report. There was no reasonable excuse for failing to adduce the proposed evidence below. Having regard to section 23(2) of the Criminal Appeal Act 1968, the court refused to admit it. An appeal is not a means of having another opportunity to present further and better evidence.

2. The Recorder was entitled to find that the apparent Wildberry trading was not genuine. His rejection of the documents as false logically supported his rejection of evidence said to confirm that trading. Although the reasoning concerning that evidence was brief, it was adequate when read with the Recorder’s findings on the evidence as a whole.

3. The applicant did not displace the presumption concerning the balance in the Curaçao account. The account was involved in transactions amounting to many millions of pounds and there was evidence of more than one account. The Recorder was therefore entitled to reject the assertion that the balance was simply a residue of the VAT refund already included in the benefit figure.

4. The Recorder was also entitled to reject both competing valuations of the watch. Neither the prosecution’s proposed valuation nor the applicant’s lower valuation was reliable. His approach involved no error of principle.

5. The forfeiture of the drugs did not require their value to be deducted from the benefit figure. Under sections 7 and 9 of the Proceeds of Crime Act 2002, once benefit had been determined, the applicant bore the burden of proving that his available assets were worth less. The Recorder was entitled to find, on the balance of probabilities, that the applicant had not given a truthful account of the extent of his assets and had failed to discharge that burden.

• Court of Appeal (Criminal Division): Refused the renewed application for leave to appeal against the confiscation order and refused permission to adduce fresh evidence.

• Single judge: Refused permission to appeal on 27 July 2013.

• Crown Court sitting at Winchester: Mr Recorder Bowes QC made a confiscation order on 11 January 2013 under the Proceeds of Crime Act 2002.