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On appeal from: [2010] EWCA Civ 1465

The appellant had previously been convicted of drugs offences and was subject to a confiscation order.

After the appellant’s release from prison he acquired assets through legitimate means; a certificate of increase in the appellant’s realisable assets was obtained by the Crown. The appellant appealed the lawfulness of the certificate.

The Supreme Court dismissed the appeal, with Lord Hope and Lady Hale dissenting in part. The transitional provisions implemented alongside the Proceeds of Crime Act 2002 disapplied the entire POCA confiscation order regime (which would have applied to ‘after acquired assets’) in respect of offences committed prior to 24 March 2003, so accordingly the Drug Trafficking Act 1994, s 16 applied to the appellant’s circumstances. Nothing in the definition sections of the 1994 Act required s 16(2) to be construed as if it referred to the amount that might have been realised at the time the confiscation order was made. Parliament could have made it clearer had its intention been to exclude after-acquired assets from the scope of  s16 and deliberately left it open for the courts in order to deprive a defendant of their criminal gains on an ongoing basis irrespective of how they came by any increased wealth.

Lord Hope, dissenting (with the agreement of Lady Hale) disagreed on the basis that reading s 16(2) to include legitimate after-acquired assets could penalise a defendant for their own enterprise and hard work after their release from custody. The general principle of construction is that a statute should not be held to take away property rights without compensation unless the intention to do so is expressed in terms which are clear and unambiguous.

For the Court’s press summary, please download: Press Summary
For judgment, please download: [2012] UKSC 5
For a non-PDF version of the judgment, please visit: BAILII