APPLICATION FOR A COFNISCATION ORDER BY HMA AGAINST GRANT ROBERT BROADFOOT

Factual and Procedural Background

The opinion concerns an application for a confiscation order under section 92 of the Proceeds of Crime Act 2022 against the Defendant, who pleaded guilty at a preliminary hearing on 5 April 2022 to charges involving serious organised crime related to the purchase, sale, and supply of cannabis, possession of ammunition, and use of encrypted communication devices. The Defendant was sentenced to imprisonment for 5 years and 3 months on 10 May 2022, with co-accused persons receiving lesser sentences for related charges. Statements of information were tendered under section 101 of the Proceeds of Crime Act 2002, and settlements were reached with co-accused. The matter proceeded to a determination hearing concerning the value of the Defendant's benefit from criminal conduct and whether the value of drugs recovered should be included in this benefit.

Legal Issues Presented

1. Whether the value of the drugs recovered should be included in the Defendant's benefit from criminal conduct for the purpose of a confiscation order under the Proceeds of Crime Act 2022.
2. How to interpret the concept of "benefit" and "obtains" under section 143 of the Act in relation to the Defendant's role and control over the criminal property.
3. The applicability of the proportionality proviso under section 92(6) in assessing the amount of benefit obtained versus the recoverable amount.

Arguments of the Parties

Prosecutor's Arguments

• The Defendant had "obtained" all the drugs seized and thus his benefit should be the entire value of those drugs.
• The Defendant had joint power of disposition or control over the drugs, negating any basis for apportioning benefit among co-accused.
• The Defendant was more than a courier; he controlled the movement of drugs, including sending some to Edinburgh, and had a central role in the criminal operation.
• The proportionality proviso in section 92(6) is irrelevant to the assessment of benefit and applies only to the recoverable amount.

Defendant's Arguments

• No sum should be added to the benefit figure for the value of the drugs as the Defendant had not paid for the cannabis and had no opportunity to realise its value.
• If any value is to be added, it should be limited to the 10 kilograms of cannabis the Defendant was entitled to dispose of for personal profit.
• The remaining 20 kilograms should be excluded as the Defendant was merely a courier with no right of disposal over that portion.
• The bag of cannabis found at the co-accused's home, valued at £1,000, should also be excluded as it was not referenced in the statement of information.
• Including the full value would be disproportionate in the circumstances.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v May [2008] 1 AC 1028	Definition of "benefit" as total value of property obtained; distinction between ownership and control; minor contributors unlikely to have obtained property.	Used to interpret the concept of obtaining property, emphasizing control and disposition rather than mere involvement.
R v Ahmad and Fields [2015] AC 299	"Obtains" connotes control over use, not ownership; co-conspirators may be treated as having jointly obtained the whole property.	Supported the finding that the Defendant and co-accused jointly obtained the drugs despite differing roles.
Mooney v HM Advocate 2020 JC 1	Benefit assessment is fact sensitive; "obtain" includes securing and procuring; role and control are relevant factors.	Guided the court in assessing the Defendant's benefit based on his central role and control in the criminal operation.
R v Elsayed [2014] 1 WLR 3916	Value of benefit is based on the sale value, not purchase price.	Applied to determine the value of the cannabis at £3,800 per kilo bag, reflecting the resale value intended by the Defendant.

Court's Reasoning and Analysis

The court analysed the statutory framework under the Proceeds of Crime Act 2022, focusing on the definition of "benefit" in section 143 and the court's duty under section 92 to assess the recoverable amount. The critical consideration was whether the Defendant "obtained" the drugs in question, with the court interpreting "obtains" broadly to include securing and procuring property, not limited to ownership. The court found the Defendant was more than a mere courier; he played a central role in the transportation and distribution of the cannabis, including control over the movement and resale arrangements. The Defendant's lack of personal financial interest in a portion of the drugs did not preclude him from being deemed to have obtained them. The court rejected the proportionality argument at the benefit assessment stage, clarifying that proportionality applies only when deciding whether to require payment of the recoverable amount, not in determining the benefit itself. Regarding valuation, the court accepted the resale value of £3,800 per kilo rather than a discounted bulk price, as the Defendant intended to sell the cannabis in smaller quantities. The bag of cannabis found at the co-accused's home was also included in the benefit calculation. Consequently, the court assessed the Defendant's total benefit from criminal conduct at £177,500, combining the previously agreed benefit and the value of the recovered drugs.

Holding and Implications

The court issued a confiscation order under section 92(6) of the Proceeds of Crime Act 2022, assessing the Defendant's benefit from general criminal conduct at £177,500 and ordering payment of £29,309.15, subject to any future application regarding time for payment.

The decision directly affects the Defendant by increasing the assessed benefit to include the full value of the drugs recovered, thereby influencing the confiscation order's amount. The ruling clarifies the interpretation of "obtains" within the statutory framework, emphasizing control and procurement over mere ownership or financial interest. However, no new legal precedent was established beyond the application of existing case law to the facts of this case.