In R v Ahmad and Fields [2015] AC 299 the Supreme Court were asked to consider apportionment when defendants had joint roles in the criminal activity. The Court stated that in these cases the full benefit figure should be awarded to each of the Relevant defendants but with the codicil that the defendants as a whole should not pay more than the benefit figure; so that in simple terms, it is only ever paid off once.

This makes all the defendants liable for the benefit figure and allows the benefit to be enforced against all defendants. The whole benefit is therefore counted towards the default sentence of each defendant. It also provides an incentive for Defendants to try and delay the realising of assets, in the hope that other defendants realise their assets first. Though this can be seen as perverse, the Supreme Court have decided that doing this, rather than splitting the benefit is the correct way forward.

The purpose of this article is not to look at the Game Theory ramifications of R v Ahmad, but to look at the effect of the decision on enforcement proceedings. It does not appear that the decision will have any particular effect on enforcement receivers unless an enforcement receiver is being appointed against co-defendants with a total of assets more than the benefit figure. In those circumstances finding an equitable outcome where defendants pay a fair amount will have to be reached. A scenario like this should be carefully handled and could lead to a number of challenges.

Enforcing default sentences produces more issues. Two in particular. First, if a default sentence is enforced against a number of co-defendants who have the same benefit against them, should they in essence only serve the equivalent of one default sentence rather than each serving the default sentence set for their benefit. As an example, four defendants commit burglary and the benefit from that burglary was found to be £10,000. The Court then ordered that each of the four defendants had a benefit and available amount of £10,000, with a default of 6 months. The question will be if each defendant was ordered to serve their default sentence, should they serve 6 months, or should it be 1 ½ months, on the basis that each default sentence counts towards the total?

Collins v DPP

The Judgement of Edis LJ in Collins v DPP [2021] EWHC 634 (Admin), seems to answer this question very clearly. The Court found that the benefit is not joint and several. Therefore, though the amount of benefit that can be paid back is capped, it is not jointly shared between each of the co-defendants. Therefore, the Court found that the default sentence should also not be shared as it is linked to the available amount.

This leaves whether the money paid by every defendant should take time off the other co-defendant's default sentence If a defendant alone has an available amount of £10,000, and a default sentence of 6 months, generally if he paid £5,000, he would only have to serve half his default sentence. So, the question is, if two co-defendants had paid £5,000 would this cut another co-defendant’s default sentence even if he had not paid anything towards the benefit. In my view, there is a clear arguable case that this should happen, on the basis that the co-defendant will only have to pay a maximum of £5,000, so should serve the proportional amount of default sentence.

In my experience, this principle has not been tested and Collins v DPP did not answer it. It will be interesting if this question is answered shortly. Though it appears a logical result of R v Ahmad, it does produce some practical difficulties, such as will the court be able to calculate default sentences in these circumstances? If the system is not up to it, it could lead to a number of unlawful imprisonment cases and writs for habeus corpus. It will be interesting to see how this issue develops in the coming years....

Barnaby Hone is a barrister with specialist expertise in all types of asset recovery and financial crime. He is ranked in Chambers and Partners and the Legal 500 for his knowledge within POCA, asset recovery, and forfeiture.  Barnaby writes the chapters on International Asset Recovery and Terrorism Finance for Millington and Sutherland Williams on POCA.