Introduction

The case of Seed v [2021] EWCA Crim 1198 addresses pivotal issues surrounding confiscation orders under the Proceeds of Crime Act 2002 (POCA). Michael Seed, convicted for his role in the notorious 2015 Hatton Gardens burglary, appealed against a confiscation order that assessed his "available amount" and recoverable benefit at £5,997,684.93. Central to this appeal was the contention regarding whether unclaimed stolen property seized by the police constitutes an "available amount" for confiscation purposes. This commentary delves into the judgment, exploring its implications for future confiscation proceedings.

Summary of the Judgment

Michael Seed appealed against the confiscation order imposed by Judge Kinch QC, challenging the inclusion of £318,386 worth of unclaimed jewellery seized from Sterling Road and Enfield cemetery, as well as £66,415.54 from Birkenhead House, in his "available amount". The Court of Appeal found that the inclusion of the Sterling Road and Enfield cemetery jewellery was incorrect because Seed had lost his possessory rights through the consent of his co-defendants to its sale by the police. Consequently, £318,386 was removed from his available amount. To ensure fairness and prevent Seed from being more severely penalized, the default term was reduced by 136 days. Additionally, Seed was not permitted to introduce new arguments post-hearing.

Analysis

Precedents Cited

The judgment extensively referenced several key cases to underpin its reasoning:

• Costello v Chief Constable of Derbyshire Constabulary [2001]: Established that possession rights are not overridden by statutory seizure unless the police retain the property.
• R v Rose [2008]: Clarified that stolen property lies within a defendant's benefit if there's a possessory right.
• R v Islam [2009]: Held that illegal goods retain value for benefit calculations even if they are unsellable post-seizure.
• R v Brooks [2016]: Demonstrated that the available amount should exclude property that cannot be lawfully realized.

These precedents collectively shaped the court's understanding of "available amount" by emphasizing the significance of possessory rights and the ability to realize assets lawfully.

Legal Reasoning

The court's analysis hinged on the interpretation of POCA sections 9, 79, 82, and 84. It scrutinized whether the jewellery in question was truly part of Seed's available amount. The key points included:

• Possessory Rights: Seed's initial possession of the jewellery granted him an interest, but this was suspended upon seizure by the police under PACE sections 19 and 22.
• Consent to Sale: The consent of Seed and his co-defendants to the police selling the jewellery effectively terminated Seed's possessory rights, rendering the jewelry non-available for confiscation.
• Market Value Assessment: The value of the remaining jewellery was assessed based on its market value, aligning with POCA section 79.

By applying these principles, the court determined that the £318,386 from Sterling Road and Enfield cemetery should not constitute Seed's available amount, while the £66,415.54 from Birkenhead House remained valid.

Impact

This judgment clarifies the boundaries of what constitutes an "available amount" under POCA, particularly in cases involving unclaimed stolen property. It underscores the necessity of distinguishing between property that defendants can lawfully realize and that which cannot, thereby promoting fairer assessments in confiscation proceedings. Future cases will reference this decision to better define and calculate available amounts, ensuring that defendants are not unjustly penalized for property beyond their control.

Complex Concepts Simplified

Available Amount

Under POCA section 9, the "available amount" refers to all free property a defendant holds, minus any obligations that have priority. It's essentially the total assets that can be targeted for confiscation to address the benefits gained from criminal activity.

Recoverable Benefit

The "recoverable benefit" is the financial gain a defendant has derived from their criminal conduct. This figure forms the basis for the confiscation order, aiming to strip the defendant of illicit gains.

Confiscation Order

A court order requiring a defendant to give up money or property obtained through criminal activities. Failure to comply can result in imprisonment.

Conclusion

The Seed v EWCA Crim judgment provides critical insights into the application of confiscation orders under POCA, particularly concerning the treatment of unclaimed stolen property. By delineating the extent of "available amount" and emphasizing the importance of lawful realization of assets, the court ensures that defendants are treated justly and proportionately. This case serves as a precedent for future confiscation proceedings, reinforcing the need for precise and fair asset assessments in the pursuit of justice.