R. v Kakkad (Freshkumar)  EWCA Crim 385.
Where a judge had sentenced an offender for drug offences after postponing confiscation proceedings and, despite the prohibition on doing so in the Proceeds of Crime Act 2002 s.15(2), had made a forfeiture order, the court was not deprived of jurisdiction to make a later confiscation order in the postponed proceedings. The fact that the drugs had been seized did not mean that the appellant had not received any benefit for the purposes of confiscation proceedings.
Abstract: The appellant appealed against a confiscation order made following his conviction for conspiracy to supply class A and B drugs. A lorry had been stopped at Ramsgate and found to be carrying 11kgs of cocaine. Cocaine from the same source, cannabis and amphetamine had subsequently been found at the appellant's home address, together with cash and paraphernalia for weighing, cutting and packing drugs. The appellant had been convicted of conspiracy to supply class A and B drugs. When sentencing him, the judge made an order under the Misuse of Drugs Act 1971 s.27 for forfeiture and destruction of the drugs seized. In confiscation proceedings the judge heard expert evidence about the value of the drugs. He found that the appellant's home address was the centre for wholesale distribution of cocaine, cannabis and amphetamine which had been imported by him with his co-conspirators. He assessed the value of the appellant's benefit from criminal conduct at £2,286,472.80 which represented his assessed value of the drugs found. He then assessed the recoverable amount at £324,184.53.
The appellant submitted that:
(1) once a forfeiture order had been made, there was no jurisdiction to make a confiscation order under the Proceeds of Crime Act 2002;
(2) the Ramsgate consignment was never "property obtained" by him and once the drugs had been seized the appellant's benefit had been extinguished and it would be disproportionate to make a confiscation order by reference to their value;
(3) the judge had erred in assessing the value of the cocaine.
Appeal allowed in part.
(1) Under s.15 of the 2002 Act, if the court postponed confiscation proceedings, it could proceed to sentence, as happened in the instant case. Under s.15(2) the court was required, when sentencing the offender in the postponement period, not to make an order falling within s.13(3), which included a forfeiture order under the 1971 Act. However, the making of such an order did not deprive the court of jurisdiction to make a later confiscation order, whether by reason of s.14(12) or otherwise. Neither s.15(2) nor s.14(11) and (12) had the effect of depriving the court of jurisdiction to make a confiscation order when there had been a failure to observe the prohibition in s.15(2), R. v Donohoe (Mark Edward)  EWCA Crim 2200,  1 Cr. App. R. (S.) 88 followed and R. v Soneji (Kamlesh Kumar)  UKHL 49,  1 A.C. 340 applied (see paras 10-13 of judgment).
(2) The existence of the conspiracy did not in itself establish that the Ramsgate consignment had been "obtained" by the appellant. However, it was open to the judge to find that the appellant had a power of disposition or control over the consignment, playing an equal role to that of his co-conspirators, R. v Ahmad (Shakeel)  UKSC 36,  3 W.L.R. 23 applied. Questions of passing of property in the consignment were not argued, because the appellant denied any knowledge of the consignment, a point on which he had been disbelieved (see para.20). The argument that because the drugs had been seized the appellant did not receive any benefit was contrary to authority, R. v Smith (David Cadman)  UKHL 68,  1 W.L.R. 54 and R. v Islam (Samsul)  UKHL 30,  1 A.C. 1076 followed. The court was concerned with the value of the property to the offender when he obtained it, and it made no difference if the property was then seized. Different policy considerations arose where property was restored by an offender to a victim, R. v Waya (Terry)  UKSC 51,  1 A.C. 294 considered. Proportionality should be considered in the context of the final order made and the legislation as a whole. The amount confiscated was limited to the recoverable amount which was the lesser of the defendant's benefits and the available amount. Self-evidently, property seized and forfeited would no longer be part of the available amount, Islam considered (paras 21-32).
(3) The judge wrongly assessed the benefit on the basis that all the cocaine would have been diluted with benzocaine, when the available benzocaine would not have been sufficient for that purpose. The overall benefit figure had to be reduced accordingly to £1,106,672.80, and to that extent the appeal was allowed (paras 33-39).
Judge: Pitchford LJ; Cooke J; Lang J