Daniel - confiscation - statutory assumptions - Criminal Justice Act 1988 as amended by Proceeds of Crime Act 1995
In 2002 Daniel met a man in a pub in Norwich who offered to sell him a nearly new Mercedes car, worth approximately £30,000, for £4,000 cash in hand. Daniel bought the car. Later the same year Daniel traded-in the Mercedes with the same man and, on payment of a further £1,000 in cash, acquired a nearly new BMW worth approximately £35,000.
Some months later Daniel was stopped whilst speeding on Norwich by-pass in his BMW. Police enquiries revealed the car had been stolen and, by checking Daniel's motor insurance history, the police also uncovered his previous ownership of the Mercedes (which also proved to have been stolen). Daniel was convicted on two counts of handling stolen property.
Confiscation proceedings were initiated. A report from the local Regional Asset Recovery Team, relying upon the statutory assumptions contained in section 72AA (4) Criminal Justice Act 1988 (as inserted by the Proceeds of Crime Act 1995) was prepared. This calculated Daniel's benefit from crime as just over £250,000.
We were instructed by the defence to give an opinion on the validity of this benefit figure.
There was evidence that Daniel was engaged in legitimate gambling on a substantial scale. He had accounts with national firms of bookmakers and monies were paid to these firms by direct debit from his bank accounts. Winnings were similarly received by direct credit into his bank accounts. Indeed Daniel had several bank and building society accounts in which there had been numerous deposits and withdrawals over the six year period prior to his arrest and charge in connection with the stolen cars.
Daniel also informed his solicitors that he was an active gambler in cash at local bookmakers and that he made a substantial income from his cash betting (although the evidence showed that he had lost money overall on the betting conducted through his bank accounts). He had not retained any records or evidence in relation to the cash betting.
We were able to show that the RART calculations were flawed in a number of respects. In particular where Daniel had transferred money between his various bank and building society accounts the RART had treated the deposits as assumed additional proceeds of crime.
Also the RART calculations had included one of Daniel's bank accounts twice, describing it as a Barclays account on the first occasion and, erroneously, as an HSBC account on the other.
The RART report had not considered transactions on an Abbey National account because this was used primarily for legitimate gambling payments and receipts. However the RART had failed to recognise that cash withdrawals from the Abbey National account could explain some of the 'unidentified' deposits in Daniel's other bank accounts.
On the basis of our report Daniel's legal team were able to agree a substantially reduced benefit figure with the prosecution.