Source: All England Reporter
Publisher Citation: [2006] All ER (D) 109 (Jul)
Court: Court of Appeal, Criminal Division
Judge:

Latham LJ, Forbes and Simon JJ
Representation Huw Evans (assigned by the Registrar of Criminal Appeals) for the first defendant.
  Peter Davies (assigned by the Registrar of Criminal Appeals) for the second defendant.
  Ieuan Bennett (assigned by the Registrar of Criminal Appeals) for the third defendant.
  Hugh Wallace (assigned by the Registrar of Criminal Appeals) for the fourth defendant.
  Gerard Elias QC and Michael Jones (instructed by the Crown Prosecution Service) for the Crown.
Judgment Dates: 10 July 2006

Catchwords

Sentence - Confiscation order - Proceeds of crime - Benefit - Criminal lifestyle - Assumptions - Serious risk of injustice - Judge finding defendants to have benefited from criminal lifestyle - Judge failing to calculate benefit - Judge finding serious risk of injustice - Whether judge having discretion not to make order where defendant found to have benefited - Whether judge erring in approach - , ss 6, 10(6).

The Case

The serious risk of injustice in s10(6) of the had to arise from the operation of the assumptions in the calculation of benefit and not from eventual hardship in the making of a confiscation order. What was contemplated was some unjust contradiction in the process of assumption, for example double counting of income and expenditure, or between an assumption and an agreed factual basis for sentence. The purpose of s10(6) was to ensure that the assumptions under s10 were not so unrealistic or so unjust in relation to a particular defendant that they should not be made. It was not a discretionary exercise by a judge to determine whether it was fair to make an order in respect of a particular defendant.

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