Ian Whitehurst granted leave to appeal in confiscation case

October 11, 2019

Ian Whitehurst from Exchange Chambers, instructed by Adrian Williams from Forbes Solicitors, has this week appeared in the Court of Appeal Criminal Division where he has been granted leave to appeal by the Lord Chief Justice (sitting with a full court) in a confiscation case.

The court directed that full argument needs to be advanced on the issues in the case and a date is to be fixed for the next hearing.

At the next hearing, the Court of Appeal is likely to consider how, in multi handed drugs conspiracies involving large scale criminal activity, a bespoke approach should or could be adopted in assessing the criminal benefit figure of individual defendants who are not involved in the overarching conspiracy.

The potential question that may arise at the next hearing – and in any event is an important issue generally in the field of confiscation law – is as follows:

How is an individual’s criminal activity to be valued for POCA benefit obtained, based on the established criminal case evidence?

The Supreme Court in R-v-Ahmed & Fields [2014] UKSC 36 has stated that if such evidence is available, then the Court should take it into account. Absent the same, then it is all joint benefit.

The House of Lords in R-v-Islam [2009] UKHL 30 said clearly that the benefit in any case is based upon the market value within which the defendant intended to dispose of the same, in relation to his role/criminal activity. Wholesale is significantly different to Street Level and this issue is one which the court will want full argument upon.

It is anticipated that the next hearing will be early in the new year.