The court decided that when dealing with co-defendants under a joint enterprise who are made the subject of a confiscation order under POCA, the orders should be made joint and several putting each co-defendant’s entire realisable assets at risk, up to the sum of the joint benefit obtained. It is not acceptable to attempt to apportion liability to the limit of their personal share of that sum.
The Appellants were found guilty after trial of offences including producing cannabis and acquiring criminal property. They were made subject to confiscation proceedings under section 6 of the Proceeds of Crime Act 2002 (POCA). The judge found that they stood to benefit jointly by £107,860. This was the total benefit of their criminal conduct.
One defendant had realisable assets of £116,887.49 and the other had realisable assets of £153,027.00 and then made confiscation orders against both men in the sum of £107,860.00 each, payable within 6 months.
We challenged the confiscation orders as unlawful as the judge had failed to apportion the benefit figure of £107,860.00 between them. The basis of this submission was that the duty to make a confiscation order under section 6(5) of POCA should necessarily be subject to the We argued the orders were disproportionate as the total sum confiscated would far exceed the total benefit and their combined effect would result in “double recovery” of the full benefit figure. Alternatively, it was argued that to pursue each Appellant for the full benefit was an abuse of process.
It was held, dismissing the appeal, that it is a legitimate and proportionate statutory aim that the entire realisable assets of a person who embarks on a joint enterprise drug dealing venture should be put at risk, up to the sum of the joint benefit obtained.
The present statutory framework does not permit the apportionment sought in these circumstances. Further, the argument in relation to “double recovery” had no basis in drugs cases as there is no identifiable financial loser.
Such confiscation orders are made to deprive drug dealers of the profits of their crime and also to deter them and others from drug dealing. In any event the offender has a degree of protection as a permissible order cannot exceed either the joint benefit or their own realisable assets. In light of these findings the abuse of process argument also failed.
Whislt we appreciate the decision is based on an application of the law, however, the POCA regime still remains openly and unapologetically draconian.
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