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Confiscation Update – by Miles Herman

confiscationThe Court of Appeal recently handed down a judgment as to valuation of benefit for the purpose of confiscation proceedings under the Proceeds of Crime Act 2002 in the context of a drugs case Shearif Stephen Elsayed, Citation No. 2014 EWCA CRIM 333. The appeal was on the basis that the trial judge assessed the valuation of the drugs on a retail basis and the appellant argued that the judge was wrong and was obliged to value the drugs on a wholesale basis.

Both the prosecution and the defence agreed as to lifestyle provisions should apply in this case, but differed as to the valuation of the drugs. At the confiscation hearing the prosecution asked the Crown Court to put a street value on 169g of cocaine for a retail basis of £108,160. The prosecution put that sum forward as the street value of the relevant benefit amount estimating the value of each drug deal being £40.00

The appellant argued that the valuation of £108,160 was incorrect and that the true value of the drugs for confiscation purposes should be the wholesale value of £6,857.

The argument put forward was with a view to limiting the recoverable amount from the appellant.

In an interesting case, the appellant was arrested when the police recovered 169g of cocaine at 80% purity and a small wrap containing cocaine of 5% purity. The prosecution’s case was that the 169g would have been cut down to individual wraps of 5% purity and the appellant was sentenced on that basis.

The appellant argued that the judge was wrong on a finding of fact to apply a retail basis of the valuation as opposed to a wholesale basis.

Counsel argued that the 169g of cocaine as seized was at 80% purity and the value of the property it was said should be assessed at the time the appellant obtained it. Accordingly, it was the value of those drugs that was to be decided i.e. the wholesale value. It was wrong it was submitted for the judge to substitute the prospective retail street value which was based on speculation and therefore the emphasis was placed on what the appellant had obtained, not what he might thereafter obtain.

The prosecution responded that, whilst in confiscation proceedings drugs may frequently be valued on a wholesale basis, that all depends on the circumstances of the particular case and, on the facts submitted, the judge was entitled to adopt the retail valuation advanced by the prosecution.

In a total rejection of the appellant’s arguments the Court of Appeal stated the trial judge was entitled to find on the facts that he did.

Unsurprisingly, the court also made reference to the case of Waya in that the Confiscation Order made in this present case did not amount to a disproportionate outcome.

The conclusion reached in this case was that the valuation of benefit is essentially a fact driven exercise and therefore in like cases or cases of similar characteristics it is vital that practitioners and clients are aware of the arguments that can be advanced in terms of the benefit.

In confiscation cases it is necessary to consider how the prosecution reaches the benefit figures that they do and at Lewis Nedas Law we have expert lawyers who will challenge assertions made by the prosecution and advance arguments on behalf of clients facing Confiscation Orders in the Crown Court. We have an enviable success rate in getting the prosecution and the courts to revise initial figures of benefit particularly in fraud, drugs and money laundering cases.

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Blog on Confiscation Featured on Defero Law

Miles Herman's confiscation update blog, published here on 14 January 2014, has been featured on the website Defero Law. The site features posts which they consider to be interesting to their readers or relevant to the community.

Check out Defero's feature here.

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LNL Blog Published on Defero Law

Miles Herman's latest blog on computer hacking law has been published on Defero Law. Click here to see the full article.

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LNL Blog Published On Society for Computers & Law Website

To read the full article titled 'New Offences Proposed for Remote Gambling Operators' please click here.

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Media Mentions

Lewis Nedas Law has published articles this month in Financier Worldwide and Defero Law on current financial crime issues.

SuperLawyers has included Lewis Nedas Law as one of the leading business crime firms in their new specialist directory, also this month.

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