Barnett v REGINA

Factual and Procedural Background

This opinion concerns a renewed application for permission to appeal against a confiscation order made by His Honour Judge Hernandez at Manchester Crown Court on 11 February 2011. The appellant had previously been convicted of offences related to the running of brothels in the Manchester area and had been subject to an earlier confiscation order in October 2005 under the Criminal Justice Act 1988. The initial confiscation order was based on an agreed sum of cash seized during police raids, without a full investigation into the appellant's benefit from criminal conduct. Subsequently, the appellant continued his criminal activities, resulting in further convictions and a later confiscation hearing in 2011. The principal issue arose from the assessment of the appellant's benefit from his general criminal conduct, particularly the treatment of benefits derived prior to the 2005 confiscation order under the Proceeds of Crime Act 2002.

Legal Issues Presented

1. Whether the assessment of benefit from the appellant's general criminal conduct prior to the 10 October 2005 confiscation order could be taken into account in subsequent confiscation proceedings under section 8(8) of the Proceeds of Crime Act 2002.
2. Whether the failure to serve a written notice under section 71(1)(a) of the Criminal Justice Act 1988 affected the court's jurisdiction or entitlement to make assumptions regarding the appellant's benefit from criminal conduct.
3. The correct "relevant day" to be used for the purpose of calculating the appellant's benefit under the Proceeds of Crime Act 2002 in light of earlier confiscation orders.

Arguments of the Parties

Appellant's Arguments

• The appellant contended that the prosecution was precluded from relying on the period covered by the 2005 convictions for calculating his benefit from his criminal lifestyle in subsequent proceedings.
• The appellant argued that the confiscation proceedings were an abuse of process.
• The appellant suggested that the court should not take into account any benefit derived prior to 11 October 2005.

Appellee's Arguments

• The Crown accepted that the date used by the judge for the "relevant day" was incorrect but argued that this made little difference to the overall calculation of benefit.
• The Crown contended that the failure to serve the section 71(1)(a) notice did not deprive the court of jurisdiction or entitlement to make assumptions about benefit.
• The Crown submitted that the earlier confiscation order, although based on an agreed figure, constituted a valid assessment of benefit for the purposes of subsequent calculations under the Proceeds of Crime Act 2002.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the statutory framework governing confiscation orders, particularly the provisions of the Proceeds of Crime Act 2002 and the Criminal Justice Act 1988 as amended. It identified the central issue as the interpretation of section 8(8) and related subsections of the 2002 Act concerning the treatment of prior confiscation orders when calculating benefit from general criminal conduct.

The court noted that the earlier confiscation order made in October 2005 was based on an agreed figure of seized cash without a full investigation or application of the extended benefit provisions under section 72AA of the Criminal Justice Act 1988. Despite this, the court held that the order constituted a valid assessment of the appellant's benefit at that time.

The court rejected the appellant's argument that the prosecution was precluded from relying on benefits derived prior to the 2005 order, emphasizing that the statutory provisions prevent double counting by requiring deduction of amounts ordered under previous confiscation orders.

Regarding the failure to serve the written notice under section 71(1)(a), the court relied on precedent from Sekhon and Simpson to conclude that such procedural defects do not deprive the court of jurisdiction or entitlement to make assumptions about benefit. Thus, the court was entitled to consider confiscation on 10 October 2005.

Consequently, the "relevant day" for calculating benefit in the 2011 proceedings could not be earlier than 10 October 2005, as per section 10(9)(a) of the 2002 Act. The court accepted the parties' agreement on the relevant period from 10 October 2005 to 12 September 2006 and the agreed benefit figure for this period.

Holding and Implications

The court ALLOWED the appeal.

The court set aside the previous assessment of benefit in the confiscation order made in February 2011, which had incorrectly calculated the benefit at over five million pounds. Instead, it substituted a figure of £873,010, reflecting only the benefit derived from criminal conduct after 10 October 2005.

The confiscation order of £4,000 was not disturbed. The decision clarifies the application of section 8(8) and related provisions of the Proceeds of Crime Act 2002, confirming that prior confiscation orders, even if based on agreed figures rather than formal assessments, fix the relevant day for subsequent benefit calculations. Procedural defects such as failure to serve notices do not invalidate the court's jurisdiction to make confiscation orders.

No new precedent beyond the interpretation of the statutory provisions and confirmation of existing case law was established. The decision primarily affects the parties by limiting the benefit calculation period to post-2005 conduct for confiscation purposes in this case.