The court refused to grant a certificate of inadequacy under the Drug Trafficking Act 1994 s.17 in respect of a confiscation order imposed after the applicant was convicted of importing cocaine. Instead of providing an honest account of the profit he made from his criminal activities, he simply ignored the evidence that he had made substantial sums from the illegal drugs trade and merely asserted that he was unable to meet the confiscation sum.
The applicant (P) applied for a certificate of inadequacy under the Drug Trafficking Act 1994 s.17.
In 2005, P was convicted of being knowingly concerned in the importation of cocaine. In 2007, a confiscation order was made in the sum of £2.3 million, which represented the value of the benefits derived from the drug trafficking. The judge found that P had realisable assets in that sum. In 2015, P was committed for 10 years in default of payment of the order. The realisable amount included substantial unidentified assets. The only remaining asset not realised was a property in France.
P argued that his assets were insufficient to meet the order.
HELD: The approach to applications for variation of confiscation orders in the Criminal Justice Act 1988 s.83 enunciated in B, Re  EWHC 3217 (Admin) applied equally to s.17. P sought to modify that approach by reference to O’Donoghue (James Keith), Re  EWCA Civ 1800, (2004) 148 S.J.L.B. 1316 and Glaves v Crown Prosecution Service  EWCA Civ 69,  4 Costs L.R. 556. Four conclusions could be drawn from those cases: (a) the principles in B provided a convenient starting point for consideration of a s.17 application, but they were not to be construed as if they were statutory rules; (b) the 1988 Act contemplated that there would be cases when an applicant could establish that a confiscation order made properly against him was in a larger sum than he was able to pay; (c) an applicant was entitled to try and persuade the court that his identified assets had diminished in value and consequently he was unable to pay the amount outstanding. He could attempt that task even where he could not provide full disclosure of what had happened to his assets, including previously unidentified assets; (d) it was a matter for the judgment of the court, on the facts of an individual case, whether the applicant’s case was made out. In reaching that decision, the court had to maintain a sense of proportion, however dishonest the applicant had been about his assets, Re B applied, O’Donoghue and Glaves considered. Neither case permitted an applicant to attack the findings of the judge who made the order. If the judge had erred, the remedy was an appeal to the Court of Appeal. P had already pursued such an appeal without success. He could not challenge those findings so far as they related to circumstances existing at the time they were made. The focus had to be on what had happened since the judge’s order and what his position was at the instant date.
The trial judge had found that P (a) was in charge of the drug importation and would have funded the purchase of the drugs through previous drug dealing, (b) had carried out previous smaller scale importations, (c) had bought the drugs at the lowest end of the valuations, (d) was clever and experienced in money laundering, (e) had gifted monies to his daughter or, alternatively, used her accounts to launder money, (f) would have been well aware of the undesirability of having assets registered in his name, (g) had made arrangements in advance to hide his considerable assets, (h) had the full amount of the confiscation order available. No appeal to “a sense of justice or proportion” could entitle P to challenge those findings, which had been comprehensively upheld by the Court of Appeal. It could not properly be said that he was “unable” to give any further account of what happened to those assets. The only proper conclusion was that he chose not to do so. The fact that a management receiver had not discovered any assets was irrelevant as he had not been commissioned to hunt for them. Additionally, the fact that none had been discovered demonstrated how well hidden they were. It had been found as a fact that P had £1.9 million available prior to the offending to purchase the drugs. Furthermore, the trial judge had found that he had obtained a further £400,000 from his criminal activities, none of which was openly held. When P was arrested he was found to have with him more than £22,000 in cash. A search of the French property turned up alcohol, entertainment equipment, gym equipment and a sunbed worth over £14,000. That supported the suggestion that he led an extravagant lifestyle and was entirely inconsistent with his contention that he lived on social security in a council flat. While the evidence concerning P’s lifestyle concerned events prior to his arrest, he had failed to explain either how he was able to live that high life or what had changed since. P had needed to provide an honest account of the profit he derived from drug trafficking, what he had done to earn those sums, where he had hidden the profits, what had become of the monies acquired and where the remaining monies were kept. He had not attempted to do any of those things. He had blandly ignored the evidence that he had made substantial sums from the illegal drug trade and resorted to mere assertion that he was not in a position to meet the confiscation sum. That was plainly inadequate to discharge the burden on him.