Kakkad, R v

A prior forfeiture order made contrary to Proceeds of Crime Act 2002 requirements does not remove the Crown Court’s jurisdiction to complete properly postponed confiscation proceedings. The error may instead be corrected on appeal, including by excluding assets already forfeited where necessary.

For confiscation, a defendant obtains property if he has the requisite power of disposition or control. Benefit is assessed when property is obtained, rather than by reference to subsequent seizure. Seizure is relevant to the available amount, not ordinarily to benefit. Market value may reflect intended processing with property already under the conspirators’ control, but cannot assume additional processing material which they did not possess.

The Crown appealed process resulted from confiscation proceedings following the respondent’s conviction for conspiracy to supply class A and B drugs. At sentencing, the Crown Court made an order under section 27 of the Misuse of Drugs Act 1971 for forfeiture and destruction of seized drugs, while setting a timetable for confiscation proceedings under the Proceeds of Crime Act 2002.

The judge later assessed benefit at £2,286,472.80 and the recoverable amount at £324,184.53. The respondent challenged the court’s jurisdiction after the forfeiture order, the inclusion of drugs seized before distribution, the effect of seizure on proportionality, the valuation of cocaine intended to be cut with benzococaine, and the available amount.

The central issues were whether forfeiture prevented a later confiscation order and how benefit and market value should be assessed for seized drugs.

1. The appeal was allowed in part. The benefit figure was reduced to £1,106,672.80. The challenge to the recoverable amount and all other grounds failed.
2. A breach of section 15(2) of the Proceeds of Crime Act 2002, by making a forfeiture order during a postponement of confiscation proceedings, does not extinguish the court’s duty or jurisdiction to make a confiscation order. R v Donohoe and Soneji established that the statutory scheme gives confiscation priority, but does not prescribe loss of jurisdiction as the consequence of that procedural breach. Any risk of double counting can be addressed by appeal, variation, or by leaving the forfeited asset out of account.
3. The respondent had obtained the intercepted drugs for the purposes of section 76. A conspirator need not have physical possession if the evidence permits a finding of a power of disposition or control. On the judge’s findings, the respondent had an equal operational role in importing, processing and distributing the consignment. The approach in R v Ahmad and Fields was applied.
4. Seizure of drugs after they are obtained does not ordinarily extinguish benefit or make confiscation disproportionate. The statutory inquiry into benefit concerns value when the property was obtained. The later seizure instead affects the available amount. R v Waya was confined to property restored to its owner, which engages different policy considerations. The court followed R v Smith (David) and R v Islam.
5. The cocaine could be valued in its intended cut form only to the extent that matching benzococaine was already available to the conspirators. The judge erred by valuing all 18 kilograms on that basis. The 14.846 kilograms without matching cutting agent had to be valued as undiluted wholesale cocaine. The recoverable amount was upheld because the judge was entitled to treat unexplained payments as concealed assets, subject to the reduction he had already made.

• Court of Appeal (Criminal Division) Allowed the appeal to the limited extent of reducing the benefit figure: [2015] EWCA Crim 385.
• Crown Court at Northampton HHJ Bray made a confiscation order on 25 September 2013 following the respondent’s conviction for conspiracy to supply class A and B drugs.