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R v Ahmad; Field [2014] 2 Cr.App.R.(S.) 75

R v Ahmad; Field [2014] 2 Cr.App.R.(S.) 75

Now the dust has settled

  • Long awaited and much anticipated after R v Waya [2013] 2 Cr.App.R.(S.) 20 radically added to the principles applicable in POCA proceedings, the case of Ahmad; Field was something of a disappointment to some in terms of continuing the Waya theme of addressing the potential injustice which strict adherence to the POCA can produce.

 

  • Since before R v May [2009] 1 Cr.App.R.(S.) 28, R v Green [2009] 1 Cr.App.R.(S.) 32 and R v Jennings [2009] 1 Cr.App.R.(S.) 29, the well-known trio of House of Lords’ cases which represent the most senior courts’ first attempt to grapple with POCA, practitioners and first instance judges alike have struggled conceptually with the notion that property passing through the hands of multiple participants or which is jointly held in a criminal enterprise can generate a separate benefit for each of those participants in the full sum. This gives rise, in theory at least, to the State recovering the sum actually generated by a crime many times over. Practitioners with an interest in this area awaited with interest the case of Green expecting, many of us, that the obvious risk of injustice would permit their Lordships to read down the statute and create a situation where the benefit was apportioned between participants.

  • It is now relatively ancient history, in POCA terms, that in Green the House of Lords did not subscribe to the apportionment approach and as a result the statute was interpreted such that in many, many cases since, the same benefit figure has been applied to more than one person where they have either jointly held property or have received it consecutive to others.

 

  • The case of Ahmad revisited the issue of apportionment, although by reference to the amount of the order, rather than the calculation of the benefit. The conjoined case of Field argued that apportionment should take place at the benefit stage on the facts of that case [see paragraphs 24 and 25].

 

  • The Supreme Court in Ahmad; Fields took the three staged approached set out in May. At stage one the court concluded that, on the facts of both cases, the first instance finding that each of the defendants obtained a benefit in the full amount of the criminal enterprise was justified on the facts.

 

  • So far, so unremarkable. Of some interest, however, at the stage one analysis in the Ahmad; Field judgment is the very useful remainder to those practising in this area of how a benefit figure can be approached in a conspiracy/joint enterprise case. Their Lordships reaffirmed the judgment in R v Allpress [2009] EWCA Crim 8 (already reaffirmed in the less widely covered Supreme Court case from Northern Ireland of R v Mackle [2014] 2 Cr.App.R.(S.) handed down at the beginning of 2014), stating that “there has sometimes been a tendency to equiparate joint involvement in the crime with joint ownership of the fruits of the crime. But the fact that the defendants were jointly responsible for the crime in question does not automatically justify a conclusion that they jointly obtained the resulting property” [paragraph 50].

 

  • Their Lordships go on in Ahmad; Field to make the following statement of general practical application:

 

Judges in confiscation proceedings should be ready to investigate and make findings as to whether there were separate obtainings. Sometimes of course this is too difficult or impossible. In many cases the court will not have before it all the conspirators for a variety of reasons. The indictment may well name other conspirators (as well as including the usual phrase “and other persons unknown”). A court should never make a finding that there has been joint obtaining from convenience, or worse from laziness. Where the evidence supports a finding that the asset acquired from a crime was obtained effectively on a several basis, the judge should make it, but there are cases in which a finding of joint obtaining is the proper, indeed the only available finding, especially but not only where an inference or presumption that the defendants before the court were the only joint obtainers would be contrary to the probabilities.

[paragraph 51]

 

  • The judgment goes to explain why the apportionment argument presented on behalf of Field should be rejected with 6 reasons being given. It cites the settled state of the law as per Green and it rehearses the practical difficulties faced by courts in complex conspiracy cases if it is not possible to proceed on the basis that each major conspirators have not obtained the full benefit. Finally, it identifies that in not providing truthful evidence, defendants themselves contribute to court choosing to proceed on the basis that major conspirators obtain the full benefit each. In giving this sixth reason, the Supreme Court expressly recognise the possibility, at least, of defendants showing that on the right facts a conclusion of apportionment may be justified.

 

  • The judgment goes on to deal with the issue more eagerly awaited by practitioners in this area, namely the apparent injustice of recovery by the State of greater than the total sum jointly or consecutively obtained by participants in a crime. The conclusion the Supreme Court reached was that should, on the facts of a particular case, this situation ever arise the benefit is calculated in the conventional way but the order should provide that it is not to be enforced to the extent that a sum has been recovered by way of satisfaction of another order made in relation to the same joint benefit.

 

  • What this means in practice can perhaps best be illustrated by example.

 

John Smith is arrested for involvement in a drug conspiracy.  He is said to be one of the prime movers and an Allpress argument is not a runner.  The value of drugs seized from the warehouse he and David Jones own is £100,000.  David Jones is also a prime mover.  Both have assets in excess of £100,000.

 

Scenario 1

Both Smith and Jones are arrested and prosecuted to conviction at the same time.  Lifestyle assumptions aside, both are liable for a confiscation order of £100,000 on the face of the statute.  However, Ahmad; Field comes to the rescue of both and an apportionment is possible meaning that only a total of £100,000 is paid between them.

 

How then is the £100,000 to be divided?  Smith’s assets are valued in the millions.  Jones owns a house with £105,000 equity.  On a 50/50 split Jones loses half of what he has, whilst Smith has cash left to burn.  That doesn’t seem on the face of it to be applying proportionality to all parts of the calculation.  However, anything other than a 50/50 split will result in each defendant having a vested interest in the other having more assets them then.  Are they then to start cutting each other’s throat? The calculation under the Act has hitherto interested itself only in whether a defendant has at least the amount of the benefit (it is only when it is less than the realisable amount becomes the available amount).  However, if there is to be a proportionate apportionment the exact value of each defendant’s estate must be determined.

 

Ahmad; Field provides no answers to this issue.  But there appears to be a legitimate argument in relation to each point of view (with one leading to more protracted litigation as between defendants).

 

Scenario 2

Smith and Jones are arrested and prosecuted together.  However, Smith’s only asset is the equity in his house worth £70,000.  Jones owns a Range Rover worth £35,000.  So between them they have more than the sum, but not by much.  Jones’ estate is worth only half of Smith’s.  How then is the sum due to be paid?

 

Does Jones pay everything he has and Smith make up the balance?  Or vice versa?  Or is each to be left with £2.5k?  What if Smith doesn’t accept that Jones only has a Range Rover, despite the Crown believing that to be the case?  In addition to responding to the Crown’s s.16, can he have a go at Jones’ s.17?  Again, no answers to these questions are to be found in Ahmad; Field.  It will take a senior court on another occasion to set out the principles for these situations.

 

  • The above are, of course, not necessarily commonly occurring. However, the difficulties displayed by each of these scenarios will be magnified when the lifestyle assumptions kick in and consideration has to be given to whether available money is first to be applied to the index offending benefit or whether it is spread to across all areas of benefit. Furthermore, the situation becomes yet more complex when defendants have some elements of index offending benefit in common but not all.

 

  • It seems, however, that Ahmad; Field is likely to be the last word on the argument that the prospect of double recovery means the statute should not be applied strictly. In summary, the Court held that the fact that the statute creates this potential problem is not problematic unless it eventuates; should it eventuate, then an adjustment is to be made. How this adjustment should be applied as between defendants who may have different means is likely to be contentious in some cases. A further problem (for the one caught first) is fact that a conspirator may be identified much later than others are tried may give rise to a boon for them as the full benefit may already have been paid. However, this problem, if it is that, places the first defendant in no worse position that he is pre-Ahmad; Field.

 

  • It was not the result some were hoping for as it seems likely to apply strictly to a very small minority of cases and does not address the arguable injustice of the more common situation of two defendants who jointly obtain property – one with substantial assets, one with no apparent means – in which the wealthy defendant (who may be wealthy through entirely legitimate channels) is stripped of all of their assets up to the value of the benefit simply because their co-accused has nothing.

 

  • Notwithstanding the limit of the change this case brings about, until the senior courts give guidance as to how scenarios such as those set out above are to be resolved, it seems that there is scope to argue about the detail of the approach to be taken as the broad brush of Ahmad; Field provides only the outline principle.

 

  • Apportionment aside, Ahmad; Field is also a useful reminder of importance of analysing a defendant’s role when determining benefit. A defendant has the authority of the Supreme Court to be heard on how proceeds were to be arranged between conspirators and, in the right case, that has the potential at least to make the difference. Furthermore, at the very critical stage of negotiation, defendants have support from the highest court in the land that such a point is arguable, which may lead to a settlement of less than the full amount of the benefit obtained by a criminal enterprise in which they are a participant.

 

NICHOLAS DE LA POER

NEW PARK COURT CHAMBERS

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