The recent long awaited judgement in R v Waya will patently have far-reaching effects in future post-conviction confiscation proceedings of significance for the profession. The Supreme Court ruled that, in line with the European Convention on Human Rights, criminal courts must not make disproportionate confiscation orders.
There can be little doubt that defence practitioners will need to make frequent references to the judgement in Waya to assist in tactical approaches to confiscation proceedings from now on.
The facts of Waya are well known to many and are not repeated here. The significance of the judgement is that the Supreme Court looked at the existing legislation in light of European law and concluded that confiscation orders under POCA must be proportionate with the aims of the legislation and further POCA legislation must be compliant with European law.
How will this be played out in future cases? Well the Court stated that the usual safeguard to protect a defendant against a ‘disproportionate’ order would normally be the common sense approach of either the Crown not to seek one or the Court not to make one.
We as defence practitioners are quite aware there have been many orders made against defendants that have been disproportionate and, indeed, ludicrously high, resulting in prisoners serving time in default. This judgement, I believe, will lead to a greater sense of fairness when the Court considers the issue of confiscation orders post-conviction.
Furthermore, this case opens the gateway for defence practitioners to argue matters that have not previously been questioned in the courts.
There may be circumstances, even where a defendant has obtained property as a benefit from criminal conduct, when it may be argued that it would be disproportionate to make an order in the sum that would otherwise be recoverable.
So the word ‘proportionate’ is the new buzzword and one that will be before the courts in cases that warrant arguments to be advanced in the future.
What is for certain is that there will be cases coming before the Court of Appeal where judges will reconsider exactly what proportionality means. For now in confiscation cases where these issues may be important, the judgement should be looked at and argued by the defence practitioners in support of their client’s case.
One of the first cases where the principles laid down in Waya have been referred to was in R v Mahmood. In this case, the Appellant had conspired with others to import large quantities of heroin from Afghanistan. He was sentenced on the basis that he played a vital role in the conspiracy, and the prosecution argued in confiscation proceedings that the Appellant should be treated as having joint liability and those assumptions under the criminal lifestyle provisions should be applied.
The Court found that the Appellant lacked credibility and must have hidden assets. It was ruled his benefit consisted of the value of the heroin seized; expenditure incurred during the length of the conspiracy and due consideration was given to the criminal lifestyle led by the Appellant.
The Court held the recoverable amount to be the same as the benefit as the Appellant had been unable to show that the value of his assets was less than the benefit figure.
The appeal was lodged on the basis the judge was wrong in the valuation of the benefit for heroin seized and also the expenses incurred by the co-conspirators.
In respect of the valuation of the heroin, Mahmood contended that he had not had ownership of the full value of the heroin seized and that as he did not have the leading role, therefore the confiscation order was disproportionate under the principles discussed in Waya.
The Court held on this point that with a conspiracy each member of it can be regarded as having jointly obtained the whole benefit and that each member can be required to pay its full value as had been confirmed in Waya. To this extent the appeal was unsuccessful.
As to the issue of expenditure, the Court stated the judge was wrong as joint liability and a conspiracy does not assist in identifying which member incurred what expenditure in the course of an operation.
Consequently the Court stated that the assumptions does not mean that each conspirator is treated as having incurred all of the expenditure, inferences may be drawn and in many cases it will be found that co-conspirators contribute equally to such expenses. In this case, however, there was no finding about the Appellant’s expenditure and it was therefore wrong it was held to attribute the expenses to the Appellant.
In light of this judgement all criminal defence practitioners will need to consider when advising their clients not only as to the valuation of the benefit of in this case the drugs but also the expenses incurred during the conspiracy.
In Mahmood the argument as to disproportionality failed; this will be one of many cases where confiscation orders not previously contested in the Crown Court will now be contested on this point and there will be more appeals to the Court of Appeal.
As a consequence of Waya, the extent of the investigation and legal work involved in many confiscation cases can only increase.
All defendants are entitled to have all of these issues considered carefully and in detail and at Lewis Nedas Law we are well placed to do that.
We have successfully contested cases in the Crown Court and most recently in the cases of R v P Charlery. Through diligent defence work undertaken by Miles Herman and Jeremy Ornstin, the Court has been invited to make a nominal order against a defendant who was initially treated as equally benefitting from other co-conspirators in a million pound conspiracy.
For further advice and guidance please contact Miles Herman.