Onuigbo (aka Okoronkwo) v R

For the transitional confiscation regime under the Proceeds of Crime Act 2002, the relevant question is whether the defendant was found guilty of an offence committed before the commencement date. The dates pleaded in an indictment do not override the necessary implications of the jury’s verdicts.

A court must not determine benefit on the mistaken basis that the defendant has conceded the prosecutor’s valuation. The defendant must have a fair opportunity to adduce evidence and make submissions on benefit. This remains important even where the recoverable amount is limited to the available amount, because a benefit figure may be relevant to a later reconsideration of assets.

The appellant was acquitted of a pre-commencement money-laundering count under the earlier statutory regime, but convicted at Southwark Crown Court of three money-laundering counts under the Proceeds of Crime Act 2002. The Crown Court found that she had a criminal lifestyle, assessed her benefit at over £21 million, and made a confiscation order for the available amount of £2,649,959.45.

She appealed the confiscation order on six grounds. They concerned the applicable confiscation regime, disclosure and particulars, refusal of an adjournment, the procedure by which benefit was assessed, and the valuation of assets. The central issue was whether the judge had fairly determined the appellant’s benefit from general criminal conduct.

1. The appeal was allowed in part. The Court of Appeal quashed the benefit assessment and ordered a rehearing in the Crown Court limited to benefit. Grounds concerning the applicable regime, adjournment, and available assets were rejected.

2. The confiscation regime in section 6 of the Proceeds of Crime Act 2002 applied. Under the transitional order, the relevant offences are those of which the jury found the defendant guilty, rather than the dates mechanically pleaded in the indictment. The acquittal on the count ending on 23 March 2003 meant that the jury had not found the appellant guilty of laundering proceeds of crime before 24 March 2003. The later counts therefore did not engage the transitional exclusion.

3. The judge’s benefit ruling was unfair. Counsel had accepted that the appellant had a criminal lifestyle and that benefit would exceed the available amount, but had not conceded the prosecutor’s valuation. Counsel had sought to address the available amount first, negotiate benefit afterwards, and, if necessary, contest it through evidence and submissions. The judge nevertheless treated the figure as effectively conceded and ruled upon it immediately.

4. The error was material. Once the prosecutor accepted that pre-24 March 2003 property was not criminal benefit, the section 10 assumption was shown to be incorrect in relation to the value of 12 Owena Street, Lagos, which had been acquired before that date. Its capital value should not have formed part of benefit, although it could remain part of the available amount.

5. The refusal to adjourn the original hearing created no separate unfairness. The appellant had sufficient time and material to prepare her case, and the judge remained willing to consider further disclosure or time if genuinely required during the hearing.

6. The prosecutor’s financial statements gave adequate particulars by identifying the transactions relied upon. In the light of the criminal-lifestyle finding and the statutory assumptions, the appellant was required to particularise why identified receipts were not criminal benefit. Before the rehearing, however, the unused-material schedule should be available for inspection. Material obtained through letters of request may be used or disclosed only within the consent given by the assisting state and subject to the ordinary disclosure test.

• Court of Appeal (Criminal Division) Allowed the appeal to the extent of quashing the assessment of benefit and ordering a rehearing on that issue.
• Southwark Crown Court The appellant was convicted on 2 June 2010 of three money-laundering counts. On 24 August 2011, the court made a confiscation order under the Proceeds of Crime Act 2002 for £2,649,959.45.