The confiscation regime is intended to deprive defendants of the proceeds of crime. But what happens when a co-defendant has already paid the criminal benefit attributed jointly to both defendants?
Can the prosecution recover the same benefit again?
The answer is no.
The principle in R v Ahmad and Fields
The Supreme Court considered this issue in R v Ahmad and Fields [2014] UKSC 36.
The Court confirmed that, where property has been obtained jointly, each defendant may be treated as having obtained the whole of that property. A confiscation order can therefore initially reflect the full value of the jointly obtained benefit.
However, that does not entitle the state to recover the same proceeds more than once.
A confiscation order should not be enforced to the extent that the same joint benefit has already been recovered through a confiscation order made against a co-defendant. Recovering the same proceeds twice would be disproportionate.
A recent result for our client
We regularly act for clients whose confiscation liability included benefit that had also been attributed to a co-defendant.
By identifying the overlap and relying on the principle established in Ahmad and Fields, we successfully secure reductions in the amount sought from our clients.
Without that challenge, the state would effectively have recover the same criminal benefit twice.
Why payments by co-defendants matter
Confiscation proceedings should not be approached as a purely mathematical exercise. Where there are multiple defendants, it is important to examine:
- whether the benefit was obtained jointly or individually;
- whether the same benefit appears in more than one confiscation order;
- what payments have already been made by co-defendants; and
- whether continued enforcement would result in double recovery.
A careful review of the payment history may significantly reduce the amount that remains enforceable.
Reviewing a confiscation order
The decision in Ahmad and Fields provides an important safeguard against disproportionate enforcement. It does not prevent the court from attributing jointly obtained benefit to more than one defendant, but it does prevent the state from keeping the same proceeds twice.
Anyone facing enforcement of a confiscation order involving jointly obtained benefit should therefore establish whether a co-defendant has already paid all or part of the same sum.
Our business crime and civil recovery team advises on confiscation orders, enforcement proceedings and applications arising from payments made by co-defendants.
How to get in contact
If you are involved in confiscation proceedings or need advice on enforcing or challenging a confiscation order, our specialist Business Crime and Civil Recovery team is here to help. Contact James O’Hara today by calling +44 204 600 9900 or email us at info@culbertellis.com.
Accurate at the time of writing. This information is provided for general information purposes only and should not be relied upon as legal advice.
