Nawaz, R. v

Where the proceeds of criminal activity have been obtained jointly, a confiscation order may require each participant to pay the whole jointly obtained benefit. Apportionment is appropriate where the evidence establishes severally held shares, but proportionality does not require fairness between co-offenders. The public interest in full disgorgement, the absence of reliable evidence of shares, and a defendant’s lack of candour may justify an unapportioned order. The state must not recover the same proceeds twice.

Equitable constructive-trust principles do not provide a further basis for apportioning a statutory confiscation liability between defendants. A person seeking renewal of permission to appeal has no automatic right to attend personally; physical attendance during self-isolation is unnecessary where representation or remote participation is available.

The applicant was convicted of conspiracy to produce cannabis. On 1 August 2019, Cardiff Crown Court made a confiscation order of £599,623.79 under the Proceeds of Crime Act 2002. The judge found that he and his co-conspirators had jointly obtained the benefit and held him liable for its full amount.

After the single judge refused permission to appeal, the applicant advanced amended grounds concerning apportionment, proportionality, evidential fairness and constructive trusts. Before the renewed application was heard, he claimed to have Covid-19 but sought to attend the Royal Courts of Justice without supplying supporting evidence. The court excluded him from the building, while his counsel attended and made submissions. The issues were whether that exclusion was justified and whether the confiscation order should have been apportioned.

1. The application was refused. Permission to amend the grounds was granted because the points could properly be aired, but none disclosed an error in the confiscation order.

2. The exclusion from the Royal Courts of Justice was justified. The applicant had given inconsistent information about Covid-19 and declined to provide the information needed to resolve whether the self-isolation regime applied. The court was entitled to protect court users and staff. Even if the regime applied, personal attendance was not necessary because counsel was present and remote attendance was available. A renewed application for permission to appeal could be determined without the applicant’s personal appearance under section 22(2) of the Criminal Appeal Act 1968; Monnell and Morris v UK (1988) 10 EHRR 205 supported that conclusion.

3. For confiscation, the relevant question is whether property was obtained, rather than who owned it. Following R v Ahmad [2014] UKSC 36, where proceeds were jointly obtained, or where there is no reliable evidence of individual shares, the court may find joint obtaining and make an order for the whole benefit against each defendant. The fact that such an order may appear harsh as between conspirators does not itself make it disproportionate. The statutory policy of securing full recovery of criminal benefit carries considerable weight.

4. The trial judge had found on the evidence that the benefit was joint. The absence of evidence dividing the proceeds did not prevent that finding. A 50/50 apportionment would have left a substantial part of the benefit unrecovered, given the co-defendants’ means. The applicant could have adduced reliable evidence of a smaller personal share but did not do so. The criminal nature of the assets also attenuated the weight of his property-rights argument under Article 1 of Protocol No. 1 to the European Convention on Human Rights. Although the state may recover the proceeds only once, any resulting windfall to another conspirator is an inherent consequence of joint criminality.

5. Constructive-trust principles did not alter the result. The liability arose from the statutory, in personam confiscation regime, whose structured proportionality analysis left little or no scope for an additional equitable allocation between defendants. The authorities concerning bribes and secret commissions were not confiscation cases and did not require a 50 per cent division.

• Court of Appeal (Criminal Division): renewed application for permission to appeal against the confiscation order refused: [2020] EWCA Crim 1715.

• Cardiff Crown Court: on 1 August 2019, made a confiscation order of £599,623.79 against the applicant following his conviction for conspiracy to produce a controlled drug.