R v Ahmad and another

Where offenders obtain property together through a joint criminal enterprise, each may have obtained the whole property for confiscation purposes. This depends on evidence that each assumed an owner’s rights over it; participation in the offence does not automatically establish joint obtaining.

Once joint obtaining is established, each offender’s benefit is the market value of the whole property. The supposed interests of accomplices do not reduce that value. A confiscation order may therefore be made against each offender for the whole benefit. To prevent disproportionate double recovery, each order must prohibit enforcement to the extent that the state has recovered the same joint benefit under another confiscation order.

Two conjoined appeals concerned confiscation orders following fraud convictions. In the first, two principal participants in a VAT carousel fraud were each ordered to pay £16.1m. In the second, three principal participants in a conspiracy to obtain goods and services without payment were each ordered to pay £1.6m.

The Court of Appeal upheld liability for the whole jointly obtained benefit in [2012] EWCA Crim 391 and [2013] EWCA Crim 2042. The defendants did not challenge the aggregate benefit or the findings of joint obtaining. They contended either that benefit should be apportioned or that payments by one joint obtainer should reduce the liability of the others.

The central issue was how a court should assess and enforce confiscation orders where several offenders obtained property together through criminal conduct.

Appeals allowed to a limited extent. The Court unanimously directed that each confiscation order be amended to prevent recovery of the same joint benefit more than once.

1. The confiscation inquiry asks three separate questions: whether the defendant benefited from the relevant conduct; the value of that benefit; and the recoverable sum. Those questions must not be elided.

2. A person obtains property when that person assumes an owner’s rights over it, ordinarily through receipt, control or a power of disposition. Criminal obtainers need not acquire legal title. Where offenders act together, “jointly” describes obtaining together in the ordinary sense rather than technical joint ownership.

   Participation in a conspiracy does not automatically prove joint obtaining. The judge must examine the evidence and may draw common-sense inferences about each offender’s role. A courier, paid intermediary, drugs mule or late entrant may obtain nothing. Separate obtainings must be found where the evidence supports them, and convenience cannot justify a finding of joint obtaining.

3. Where the evidence establishes that an offender obtained property together with others, the offender may have obtained the whole property. The market value of the whole property is then the value of that offender’s benefit under sections 76, 79, 80 and 84 of the Proceeds of Crime Act 2002. Unlawful claims or supposed beneficial interests among accomplices are not interests requiring apportionment under section 79(3). The courts below were therefore entitled to assess each defendant’s benefit at the whole jointly obtained amount.

4. Confiscation legislation targets the proceeds rather than merely the profits of crime. Nevertheless, enforcement which takes the same proceeds twice does not further the statutory aim and is disproportionate under article 1 of the First Protocol. Each order concerning a joint benefit must therefore provide that it is unenforceable to the extent that the state has recovered a sum in satisfaction of another confiscation order relating to that same benefit.

5. The orders against the Ahmad defendants and the Fields defendants were amended accordingly. No apportionment of their assessed benefits was ordered.

1. United Kingdom Supreme Court: Allowed both appeals only to the extent of directing that each confiscation order be amended so that it could not be enforced for a joint benefit already recovered under another confiscation order.
2. Court of Appeal (Criminal Division), Ahmad: In [2012] EWCA Crim 391, fixed each defendant’s benefit and recoverable amount at £16.1m and upheld ten-year default terms.
3. High Court, Ahmad: Following a confiscation hearing under the Criminal Justice Act 1988, Flaux J found that the defendants had jointly obtained the benefit through their company.
4. Court of Appeal (Criminal Division), Fields: In [2013] EWCA Crim 2042, upheld confiscation orders of £1.6m against each of the three defendants.
5. Crown Court, Fields: Following confiscation proceedings under the Proceeds of Crime Act 2002, the judge found joint benefit of approximately £1.6m and ordered each defendant to pay that amount.