Karl Masi examines the recent case of R. v Brooks (John Alan)  EWCA Crim 44, which provides useful guidance in relation to the recoverable amount in confiscation proceedings.
The defendant was convicted of conspiracy to import 1,504 kg of cocaine with a street value of approximately £150 million. The drugs had been seized by the Irish Navy. The defendant was found to have benefited in the sum of £3.6 million and to have realisable assets in the same sum. The realisable assets included the purchase value of the drugs, which were valued at approximately £2.947 million. It also included a 50% beneficial interest in a Spanish property 'owned' by the defendant's partner, valued at £296,000.
It was argued by the defendant that the Recorder had erred in:
- using the value of the seized drugs in calculating the benefit figure and recoverable amount;
- that the calculation of the interest in the Spanish property was wrong in law;
- and the finding that the defendant had contributed to the purchase of the drugs.
The Court accepted that the valuation of the seized drugs could be considered as part of the benefit figure due to ample evidence that the defendant had obtained the drugs by virtue of his control and disposition of them, despite the fact that there was no evidence that he had contributed to their purchase price. However, the Court held the Recorder had erred in including the value of the seized drugs in the realisable amount as once they had been seized the drugs no long represented an asset held by or available to the defendant. The Court found that the defendant had no interest in the Spanish property, but rather the mortgage payments made by the defendant were a tainted gift and should be calculated accordingly. The Court held a fair and proportionate conclusion was that the value of the available assets were no less than £500,000.
This case is useful for underpinning a number of principles when assessing the recoverable amount.
Firstly, seized goods are no longer an available asset to the defendant although they can be included in the benefit figure if the defendant is found to have obtained them.
Secondly, approval of the approach in R v McIntosh  1 Cr App R (S) 60, namely that the inquiry under section 9 of POCA into the assessment of the recoverable amount was not brought to a close by the rejection of the defendant’s evidence of his available assets. There is a need to continue to make a just and proportionate view based on the whole of the available evidence. In this case, there was substantial evidence before the Court of a cash lifestyle and efforts to avoid an audit trail from which one could infer the defendant had substantial amounts of cash still available to him and the Court was able to make a finding of hidden assets.
Thirdly, when assessing interest in a property, where the defendant held no legal title but had contributed to mortgage payments for no consideration, the proper approach is to treat such payments (adjusted for inflation) as a tainted gift and include them as an available asset pursuant to ss77 and 78 POCA.