POCA Success: Assumptions defeated and confiscation order reduced by £1.15 million
In March 2020, police were called to a Travelodge in east London after maintenance staff discovered an open suitcase in a room containing what appeared to be a large quantity of drugs. Once in the room, police found a large amount of cash, two mobile phones, self-seal bags, a set of digital scales, the keys to a Porsche 911 and its insurance policy, and five “tic” lists.
A 61-year-old man was located nearby and arrested. He used the duty solicitor at the police station and did not answer questions in interview.
He was charged with possession with intent to supply Class A drugs (cocaine) and possession of criminal property (the cash). At the magistrates’ court, no plea was indicated, bail was denied, and the case was sent to the Crown Court. At this point Sonn Macmillan Walker was instructed on a private basis.
Our bail application was successful, and a basis of plea was accepted by the prosecution. Our client admitted using cocaine from the middle of 2019 due to the pressure of looking after his ill mother and brother. He began dealing the drug to friends and acquaintances due to pressing financial pressures. In July 2020, our client was sentenced to 4-and-a-half years in prison.
During the confiscation proceedings, the prosecution valued the drugs at £75,300 and “tic” lists as evidence of dealing to the sum of £180,725. The cash seized totalled £6,971.96 and the prosecution alleged that our client had made tainted gifts to his wife of £138,600, made of up of three payments by her to conveyancing solicitors to purchase a property in Kent in November 2017.
The prosecution invited the court to apply the statutory assumptions and include some £850,000 in the overall benefit figure as this, they claimed, represented his benefit from his general criminal conduct. Our client and his wife owned two properties overseas (in Thailand and Spain) as well as the property in Kent. The prosecution combined our client’s share of the properties with the value of the Porsche and that connected to the offences, and asserted a benefit figure of £1.25 million with identified available assets of some £539,000.
Finally, the prosecution produced HMRC records showing income generated from a pension and highlighted that this had not been declared in our client’s s.18 POCA statement of assets.
We provided a comprehensive s.17 POCA response to the prosecution’s statement and 410 pages of supporting evidence. This included clear and cogent evidence of conveyances over 25 years and across three countries. It included a witness statement from the owner of the Porsche, who explained that he had bought the car new, loaned it to our client, and subsequently sold it. He provided paperwork evidencing his purchase and sale of the car.
We were able to provide our client’s wife’s banking records, which traced the source of funds for the Kent property to legitimate rental income in bank accounts in Thailand, Spain and Jersey, derived from the two overseas properties and a substantial civil settlement in Thailand.
Finally, we were able to provide confirmation from the pension company that payments had been to a holding bank account. It transpired that they had been writing to our client at address he sold in 2003 and our client had forgotten that an old employer in 1990 set up this policy. The unintended consequence of the financial investigation was the discovery of this £25,000 pension pot!
With respect to the drugs, our response drew forensic attention to what was said by the prosecution and judge at the sentencing hearing. We made clear the double counting on the “tic” list and inequity of double recovery of the cash.
The prosecution revised their position and advanced a benefit figure of some £263,000, having accepted that the “lifestyle assumptions” did not apply to our client, who had been of previous good character, and that no tainted gifts had been made to his wife.
After prolonged negotiations, the prosecution agreed to use the wholesale value of the drug of £30,000 and the middle value of the “tic” list at £78,000 with a deduction to the benefit figure for the seized cash. In September 2021, the court made a Confiscation Order in the sum of some £101,000 and allowed 3 months to pay and set a period in default of payment of 3 years. Our client and his wife were delighted with this outcome.