Ryan, R. v

In confiscation proceedings under the Proceeds of Crime Act 2002, the court determines the central confiscation question by a different standard of proof from that applied at the criminal trial. The civil standard may therefore be applied when determining benefit and whether the statutory criminal-lifestyle threshold is met.

An appellate challenge will fail where the sentencing judge adopted that approach and the proposed grounds disclose no arguable legal or factual error.

R v Steven John Ryan concerned a renewed application for permission to appeal against a confiscation order made at Birmingham Crown Court.

The applicant had been convicted of conspiracy to defraud and controlling an article for use in fraud. The Crown Court later found that he had benefited by £2,837,349.06, deemed his available assets to be the same sum, and made a confiscation order with a default sentence.

He contended that the order was made outside the time limit in section 14 of the Proceeds of Crime Act 2002, that he did not have a criminal lifestyle under section 75, and that the order was disproportionate. The central issue pursued was whether the judge had been entitled to find relevant benefit of at least £5,000.

1. The Court of Appeal refused the renewed application for permission to appeal. None of the three proposed grounds had arguable merit.

2. The principal challenge concerned the finding that the applicant had a criminal lifestyle for the purposes of section 75 of the Proceeds of Crime Act 2002. The applicant submitted that the proven conspiracy loss was only slightly over £4,200 and that the judge had adopted an incorrect legal approach in finding benefit of at least £5,000.

3. The court rejected that submission. The passages in the Crown Court ruling relied on by the applicant showed only that the judge had recognised that the central confiscation question arose in proceedings separate from, although allied to, the criminal trial. He was therefore right to apply a different standard of proof, namely the civil standard, to that question.

4. The court found no arguable basis for disturbing the judge’s conclusion on benefit. The fact that the offence was a conspiracy, together with the evidence identified in the application, did not disclose an arguable legal or factual error.

5. No oral submissions were advanced on the time-limit ground. As the criminal-lifestyle challenge failed, counsel did not pursue the proportionality ground. The application was refused.

• Court of Appeal (Criminal Division): renewed application for permission to appeal against the confiscation order refused: [2014] EWCA Crim 811.

• Crown Court at Birmingham: following convictions on 17 December 2010 and sentence on 3 February 2011, His Honour Judge Creed made a confiscation order on 8 January 2013 under the Proceeds of Crime Act 2002.