Application for confiscation of £462,775.36 resisted - order to pay £168,000

An order was made for K to pay a confiscation order of £168,000 - 36% of the amount for which a financial prosecuting authority had applied in its application (£462,775.36). 

 

The defence had served and filed evidence to show that the contested confiscation order should be made for £161,209.09 plus a further sum to reflect unattributed funds - 96% of the amount ultimately ordered. 

 

There was no benefit from particular criminal conduct. The question was whether the Crown could prove benefit from general criminal conduct. There are four assumptions in the statute of which three applied in this case: those relating to transfers, expenditure and property held since the date of conviction. Where a defendant elects to contest confiscation proceedings, the burden is on him to displace the assumption or to show that there would be a serious risk of injustice if a judge were to act on that assumption. 

 

The learned judge, HHJ MacDonald Q.C., agree with the analysis of defence counsel and observed that the applicant financial prosecuting authority had significantly revised its position in the course of what was a five-hour contested POCA hearing. The learned judge observed that the Crown had made substantial modifications to its case in the course of the contested hearing. ‘[…] In their closing written submissions, the Crown further modified their case. They conceded that the interested party, the wife, owned half of the matrimonial home. They abandoned from benefit calculation all the property held by the defendant.’  

 

The defence cross-examined the financial investigative officer on whom the applicant prosecuting authority relied to present the prosecution case. The defence called three witnesses to give evidence on oath to rebut the various types of statutory assumption on which the prosecution relied in order to demonstrate that several rental properties in the defendant’s own name were clean properties. The defence submitted that bank loans for the balance of monies owing on properties were not serviced with monies resulting from general criminal conduct. It was successfully argued that all that such servicing merely functioned as protection of the defendant's investment. The learned judge agreed with the defence that there would be a serious risk of injustice, per the statutory test, if he concluded that the defendant’s investments had significantly grown in value. 

 

A third party, the defendant’s wife, who was represented, submitted that the defendant, convicted of rape, had abused and duped her such that she had, unknowingly, acted against her own financial interests and had had concealed from her various financial assets. Those submissions by the third party were challenged and resisted by the defendant as baseless and false. 

 

The defendant was multiply convicted. The defence made submissions on how the Court should direct itself regarding those convictions in its assessment of the defendant’s evidence on oath in confiscation proceedings - credibility and reliability. 

 

Erim Mushtaq and Abigail Bright were instructed as referral counsel in the confiscation proceedings by solicitors for K.  

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