||All England Reporter
|| All ER (D) 400 (Apr)
|| EWCA Crim 1049
||Court of Appeal, Criminal Division
Gage LJ, Morison J and Judge Zucker
||Tim Owen QC and Gary Summers (assigned by the Registrar of Criminal Appeals) for the defendant.
||Andrew Stubbs and Linda Saunt (instructed by the Customs and Excise Prosecution Authority) for the Crown.
||28 April 2005
Sentencing - Confiscation order - Assessment - Proceeds of drug trafficking - Determination of amount to be recovered - Burden of proof - European Convention on Human Rights, art 6(1) - , ss 4,5.
The correct approach for the court to take in determining the amount to be recovered in confiscation proceedings under s5 of the (determination of the amount to be recovered) was the same whether the benefit was proved by evidence in addition to the statutory assumptions. Once the prosecution had established the benefit, there was no requirement on it to provide a prima facie case. At the stage at which the court determined the amount to be recovered, the burden of proof would shift to the defendant to establish, if he could, his realisable assets to the satisfaction of the court. Moreover, in the instant case, the judge had been entitled to make the finding that the defendant had failed to discharge the burden of proving that he had no realisable assets other than his house. However, the confiscation order would be varied from 1525,615 to 1,460,615 in order to reflect a concession made by the prosecution as to an amount that ought not to have been included in the final order.
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