Confiscation order – Realisable property – Defendant being convicted of drug offence
R v Harriott: Court of Appeal, Criminal Division (Lord Justice Rafferty, Mr Justice Thirlwall and Judge Gilbart QC): 7 November 2012
The defendant was convicted of possession of cocaine with intent to supply and sentenced to five years’ imprisonment. During confiscation proceedings under the Drug Trafficking Offences Act 1994, the defendant’s counsel identified the only realisable property as the defendant’s 25% share in a house. Her husband (the husband) contended that he had been paying for the property with the appellant.
The judge failed to consider the husband’s equitable interest on the basis that he was bound to regard the asset as entirely that of the person in whose name it stood, namely the defendant. He explained that the husband would have to assert his equitable interest in separate civil proceedings and that he was powerless to declare an interest. Subsequently, a confiscation order of £37,349.84 was made. The Crown Prosecution Service stated that a certificate of inadequacy could be agreed on the payment of £15,000. The husband paid the £15,000 as the purchase price of the defendant’s share.
The CPS subsequently requested details of the defendant’s salary so that a monthly payment plan could be set up and contended that no certificate of inadequacy could be agreed whilst she had means. The defendant agreed with the CPS to begin monthly payments, but enforcement proceedings were recommenced because she had not been paying enough. The defendant appealed on the basis that the confiscation order was flawed, as it had been made on the presumption that she had full control over 25% of the equity in the matrimonial home and the husband’s half share in the property should have been deducted from the available amount. She contended that the recoverable amount should be recorded as £15,000. It fell to be determined whether the judge had erred in making the confiscation order.
The appeal would be allowed.
The judge’s conclusion that, without a court order, he could not find that the husband had had an equitable interest had been in error. He had been correct to find that the husband had had no locus before him, but it had been open to the defendant to lead evidence that she had owned but 12.5%. Had that been done, the judge, if persuaded, would have been entitled to find that the burden on her had been discharged and that her equity had been as she and her husband had contended (see  of the judgment). The confiscation order would be quashed and substituted by one nominating the recoverable amount as £15,671.84 (see  of the judgment). R v Hirani  EWCA Crim 1463 considered.
Alistair Fell (instructed by Williamson & Soden) for the defendant; Michael Newbold (instructed by the Crown Prosecution Service) for the Crown.