Practice and Procedure


PUBLISHED October 31, 2003

Whilst a confiscation order had to be reduced in accordance with s.17(3) and (4) Drug Trafficking Act 1994 following a certificate of inadequacy being granted in the High court, in all the circumstances it was just to only reduce the order by the nominal amount of ?1.00 as, on the facts, to do otherwise would defeat the will of Parliament and would be unjust.Appeal, with leave of the single judge, against the decision of HH Judge Carrol at Woolwich Crown Court on 14 March 2003, refusing to reduce a confiscation order made under s.6 Drug Trafficking Offences Act 1986. On 17 May 2000 the defendant ('D') pleaded guilty to conspiracy to import Class B drugs, namely cannabis resin and was sentenced to three years three months' imprisonment. When D was released, in September 2000, £36,850, which had been seized as the proceeds of drug trafficking, was returned to him. D immediately gifted £36,000 to his sons. In Feb 2001 a confiscation order was made in the sum of £40,587.97, the judge was fully aware of the gifts and regarded them as realisable assets. In October 2002, following a hearing in the High Court where the Crown were not represented D was granted a certificate of inadequacy pursuant to s.17(1) Drug Trafficking Act 1994. D accordingly sought a reduction in the confiscation order pursuant to s.17(3) and (4) of the 1994 Act. In refusing the application the judge ruled that the court had been aware of the gifts made by the defendant at the time the confiscation order was made and, therefore, no reduction would be made. D appealed on the grounds that, in all the circumstances, the ruling was wrong in principle. The judge had treated the application as a request to unmake the order. The Crown Court was not the appropriate venue to question the certificate of inadequacy and it would defeat the intention of Parliament if the order was not reduced as the court was obliged, under s.17(4)(a) of the 1994 Act, to substitute a lesser amount.HELD: (1) The duty of the court then and now was to consider the matter in accordance with s.17 of the 1994 Act. The court's task was to substitute for the original amount such lesser amount the court though just in all the circumstances. The circumstances were that in September 2000 D gifted £36,000 and he now asserted that the court should reduce the order accordingly. (2) It would be unjust and would frustrate the will of Parliament to reduce the order. Uncertainty was created by proceedings that required examination of a defendant's means in the two different jurisdictions of the High Court and the Crown Court. If the Crown was unrepresented in the High Court it might be that the court thought the merits were conceded. (3) The present court was unpersuaded that justice demanded anything more than a nominal reduction and would therefore reduce the £40,587.97 by £1.00.Decision accordingly.