Andrew Mitchell QC and Kennedy Talbot appeared in the Supreme Court on the 10th and 11th of February 2014 to argue for the appellants in R v Ahmad and Ahmed. The arguments relating to the vexed issue of multiple recovery are likely to have a very significant impact on future asset recovery cases.
The Appellants submit that the issue is:
Can confiscation orders against defendants which, aggregated, exceed their joint benefit from the offences and/or loss(es) to the victim(s) be, for that reason, in breach of Article 1 of Protocol 1 of the European Convention of Human Rights? If so, should this be cured by the court making joint and several orders and/or dividing the total amount between the defendants?
The Respondent submits that the issue is:
Where two or more defendants jointly obtain property (in this case £12.6 million) as a result of or in connection with criminal conduct, is it proportionate within the meaning of Article 1 of the First Protocol of the European Convention of Human Rights for a court to make a confiscation order against each defendant, each order being in an amount equal to the value of the benefit obtained.
The respondents were convicted of conspiracy to defraud Her Majesty’s Revenue and Customs (HMRC) in relation to a Missing Trader Intra Community fraud. By the fraud, VAT of over £12.6m was lost to HMRC. In subsequent confiscation proceedings, orders were made against each respondent for over £92m, on the basis that the respondents had benefited by the total of the sums passing through bank accounts they controlled. The Court of Appeal quashed the orders and substituted an amount which corresponded to the VAT fraudulently reclaimed.
Judgement has been reserved