Brooks v R.

For post-conviction confiscation under the Proceeds of Crime Act 2002, a conspirator may have obtained drugs without purchasing them where the evidence shows substantial managerial and operational control and a right of disposition. Seizure of the drugs does not remove their value from the defendant’s benefit, but it ordinarily prevents their value from forming part of the available amount.

The available amount must be assessed justly and proportionately on all the evidence at the time of the confiscation order. Rejecting a defendant’s account does not automatically justify equating available assets with benefit. Payments made from criminal proceeds towards another’s property may instead be treated as tainted gifts.

Brooks v R concerned an appeal against a confiscation order made at Birmingham Crown Court following the appellant’s conviction for conspiracy to import cocaine. The court below found a criminal lifestyle, assessed benefit at £3,601,818, and made an order for that sum, with a seven-year default term.

The appellant challenged the inclusion of the seized cocaine in the benefit and recoverable figures, and the finding that he held a half beneficial interest in a Spanish property registered in his partner’s name. The principal issue was the proper assessment of benefit and available assets under the Proceeds of Crime Act 2002.

1. Appeal allowed. The recorder erred in finding that the appellant had purchased, or contributed to the purchase of, the cocaine. There was no evidence for that finding. Nevertheless, the evidence of his central role in arranging the vessel, crew, transport and delivery demonstrated substantial control and a right of disposition over the drugs. He had therefore obtained them for the purposes of section 76(4) of the Proceeds of Crime Act 2002.

2. The value of the drugs properly remained part of benefit. Property obtained through crime remains benefit even if it is not retained. The Irish Navy’s seizure of the cocaine did not alter that conclusion.

3. The recorder’s assessment of the available amount was, however, flawed. The approach in R v Green [2007] 3 All ER 751 had been superseded by later authority. Rejection of the appellant’s evidence did not end the inquiry. The court had to assess the available amount justly and proportionately on the whole evidence.

4. Under section 9(1), the inquiry concerns property held when the confiscation order is made. The seized drugs were no longer assets held by, or available to, the appellant and had no market value for this purpose. Their value could not be included in the recoverable amount, although hidden assets could be inferred from the appellant’s cash-based criminal lifestyle.

5. The recorder also erred by attributing a half beneficial interest in the Spanish property to the appellant. The correct approach was to treat mortgage payments made from criminal proceeds, without consideration, as tainted gifts. The court valued those gifts conservatively at about £135,000.

6. Taking the identified assets, tainted gifts and hidden assets into account, the appellant had not shown that the available amount was below £500,000. The original confiscation order was quashed and replaced with an order for £500,000, payable within six months. The default term was reduced from seven years to five years.

• Court of Appeal (Criminal Division). Allowed the appeal against the confiscation order, quashed the order for £3,601,818, and substituted an order for £500,000: [2016] EWCA Crim 44.
• Birmingham Crown Court. Following conviction for conspiracy to import cocaine, made a confiscation order for £3,601,818 with a seven-year term in default.