REGINA v PAUL JOHN ASPLIN

In confiscation proceedings under the Criminal Justice Act 1988, salary included in benefit is calculated net of tax, but a pension’s cash equivalent transfer value is included gross because drawdown tax depends on the amount realised and the defendant’s circumstances. A pension may remain a realisable asset while it has not been forfeited and remains capable of transfer. Any later shortfall may be addressed through a certificate of inadequacy. Compensation may reflect relative culpability, subject to the defendant’s realisable assets. Where payment is prevented by the conduct of trustees or the victim, the court may extend time for payment.

Paul Asplin, David Kearns and Sally Jones appealed against confiscation and compensation orders made by His Honour Judge Beddoe at Southwark Crown Court following their convictions for conspiracy to defraud. The Court of Appeal had addressed the principal issues in an earlier judgment, [2021] EWCA Crim 1313, but consequential matters remained unresolved.

The court reconsidered whether Asplin’s and Kearns’ occupational pensions were realisable assets, whether pension values should be calculated net of tax, which cash equivalent transfer value should be used, the resulting confiscation and compensation figures, the time for payment, the recipient of compensation, costs, and certification for a Supreme Court appeal.

1. Reopening and pensions. The court reopened the pension issue because the earlier proceedings had proceeded on a false understanding of the trustees’ position. Nevertheless, the pensions remained beneficial interests for the purposes of the confiscation regime under the Criminal Justice Act 1988. They had not been forfeited and remained capable of realisation by transfer of the cash equivalent transfer value into a SIPP.
2. Tax and valuation. Salary included in the benefit calculation was to be taken net of tax. By contrast, the pension value was to be included gross. Tax arising on drawdown depended on the amount drawn and the defendants’ circumstances, making a net calculation illusory. Any resulting inability to satisfy the tax liability could be addressed by a certificate of inadequacy. Under section 71(6) of the Criminal Justice Act 1988, the relevant pension value was the cash equivalent transfer value at the date of the confiscation order in the Crown Court.
3. Compensation and enforcement. After salaries were excluded from the loss calculation, the total loss was £5,960,155. Applying a broad assessment of relative culpability, compensation was fixed at £3.5 million for Asplin and £1,230,077 each for Kearns and Jones. Compensation was payable from sums recovered under the confiscation orders, and the total recovered by confiscation or compensation could not exceed each defendant’s realisable assets. If the pensions were not transferred within six months, the defendants would have an irresistible case for certificates of inadequacy and reduction of the sums recoverable.
4. Further orders. Time for payment was extended to six months from the judgment. Compensation was made payable to DAS Services Ltd. The prosecution’s application for costs from central funds was refused because of the court’s criticisms of DAS’s lack of candour. Certification of a question of general public importance was also refused.

• Southwark Crown Court: His Honour Judge Beddoe made confiscation and compensation orders following the appellants’ convictions for conspiracy to defraud.
• Court of Appeal (Criminal Division): In [2021] EWCA Crim 1313, the court determined the principal confiscation issues and left consequential matters for further decision. In the present judgment, the court varied the orders, reduced the compensation payable by each appellant, extended time for payment, refused the prosecution’s costs application, and declined Supreme Court certification.