Court of Appeal Criminal Division

Published June 15, 2007

Regina v Green Before Lord Justice Moore-Bick, Mr Justice David Clarke and Mr Justice Swift
Judgment May 25, 2007

Where two or more persons acting together as principals in a drug-traffick-ing offence jointly received payment or reward in connection with that offence, the value of each person’s proceeds for confiscation purposes included the whole value of that payment or reward.

The Court of Appeal, Criminal Division, so held when allowing an appeal by Mark Green against a confiscation order imposed on him by Man-chester Crown Court (Judge Steiger, QC) on February 17, 2006 under section 2(5) of the Drug Trafficking Act 1994, for £2.5 million, following his convictions for conspiracy to supply class A and B drugs, to launder the proceeds of drug trafficking and to import class B drugs.

Confiscation orders had been made against a number of his co-conspirators who were convicted of offences on the same indictment.

The judge assessed the total value of his proceeds of trafficking under section 4 of the 1994 Act at £7,345,450. When determining the value of his realisable assets under section 5(1) of the 1994 Act, the judge was not satisfied that the offender’s identifiable assets, amounting to £577,533, represented all his assets.

However, as confiscation proceedings against the co-conspirators found that they had received proceeds totalling over £4 million, the judge considered it unfair to treat the offender as having assets to the value of the whole of the proceeds and deducted that amount, making a confiscation order of £2.5 million.

Mr Andrew Bodnar,assigned by the Registrar of Criminal Appeals, for Green; Mr David Farrer, QC and Miss Jennifer Carter-Manning for the Crown.

MR JUSTICE DAVID CLARKE, giving the reserved judgment of the court, said that the offender submitted that because part of the proceeds had been retained by co-conspirators, the court could not treat him as having received the whole amount and had to identify payments or rewards that actually passed through his hands.

In R v May ([2005] 1 WLR 2902) the Court of Appeal held that for the purposes of confiscation proceedings under the Criminal Justice Act 1988, where two or more defendants obtained control of property jointly, each benefited to the full value of the property and obtained the whole of it and there was no requirement to apportion the benefit between them.

His Lordship said that those same principles applied to the 1994 Act. Section 7 of that Act made no specific provision for assets received jointly to be subject to limitation in value.

In principle, where money or property was received by one defendant on behalf of several defendants jointly, each defendant was fully interested in it and to be regarded as having received the whole of it for the purposes of section 2(2) of the 1994 Act.

It did not matter that proceeds of sale might have been received by one conspirator who retained his share before passing on the remainder; what mattered was the capacity in which he received them. In the circumstances, the judge was entitled to find that the co-conspirators received proceeds on behalf of the conspirators as a whole.

On the evidence, the judge was not justified in rejecting figures for quantities and prices of the drugs agreed between the offender and the Crown and wrong to treat expenditure on new stock as deriving from extraneous sources.

He should have assessed the proceeds of trafficking at £6,831,175, but was right when making the order to give the offender credit for the value of proceeds received by and amounts recovered from his co-conspirators. Accordingly the confiscation order would be reduced to £1985,725.

Solicitors: Crown Prosecution Service, York.

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