Lowther & Ors, R. v

In a criminal-lifestyle confiscation case, statutory assumptions under the Proceeds of Crime Act 2002 remain effective unless the defendant proves, on the balance of probabilities, that the property or income was not derived from general criminal conduct. A conspirator may obtain the whole proceeds jointly where the evidence shows that the conspirators acted as a team and each assumed the rights of an owner.

Property tracing is not defeated because criminal property has been converted and later sold lawfully. At the benefit stage, property is valued at its objective market value. Prospective costs of selling property still held reduce the available and recoverable amount, but do not reduce the benefit figure.

The three appellants pleaded guilty to conspiracies involving blackmail, money laundering, intimidation and perverting the course of justice. The Crown Court at Nottingham held that each had a criminal lifestyle and made confiscation orders after applying the statutory assumptions in the Proceeds of Crime Act 2002.

They sought leave to challenge findings about joint benefit, the provenance of cash and property, and payments made to the National Crime Agency. Limited leave was granted on one conceded issue: whether prospective costs of sale should reduce the value of properties still held. The central issue on the appeal was whether those costs reduced only the available amount or also the benefit figure.

1. The appeals were allowed to a limited extent. The court refused renewed leave on all other grounds, but quashed and substituted the confiscation orders to reflect agreed costs of sale.
2. Joint benefit. Applying R v Ahmad and Fields [2014] UKSC 36, the court held that the brothers jointly obtained the full £29,500 paid by the Horobins. The evidence entitled the Crown Court to find that they acted as a team throughout one indivisible course of blackmail and jointly assumed ownership of its proceeds. It was immaterial which brother physically received a particular payment.
3. Criminal-lifestyle assumptions and tracing. The Crown Court was entitled to reject the appellants’ evidence of legitimate income as incredible. They had not displaced the assumptions in section 10 of the Proceeds of Crime Act 2002. A narrow construction of section 10(2), under which only the last lawful sale transfer could be treated as the result of criminal conduct, would defeat tracing and undermine the confiscation regime. The cash deposits had not been added separately to the benefit figures, so there was no double counting.
4. Benefit and available amount. Following R v Cramer (1992) 13 Cr App R (S) 390 and R v Pattison [2007] EWCA Crim 1536, prospective sale costs had to be deducted when valuing realisable assets and fixing the available amount. They did not reduce the benefit represented by properties still held. Benefit is the objective market value of what was obtained, rather than the net sum which might later be realised on a sale.
5. Double recovery. The court accepted the principle in R v Ahmad and Fields that joint benefit must not be enforced twice. However, because substantial unrecovered general-criminal-conduct benefit remained, no present restriction on enforcement was needed. Any future increase in an order following an increase in available assets could be addressed under section 22.

The substituted confiscation orders were £194,443.29 for John Lowther, £164,967.73 for Luke Lowther and £178,963.59 for David Lowther.

• Court of Appeal (Criminal Division): By [2020] EWCA Crim 1387, renewed leave was refused on the unarguable grounds. The appeals were allowed only to deduct agreed sale costs from the available amounts and substituted confiscation orders were made.
• Crown Court at Nottingham: On 10 May 2019, following rulings in February and March 2019, confiscation orders were made against each appellant after convictions for serious conspiracy offences.