Assets acquired after confiscation are a legitimate target for pre-POCA cases

In the matter of Peacock [2012] UKsC 5 the supreme Court was asked to decide whether assets acquired perfectly legitimately after a confiscation order made under the Drug Trafficking Act 1994, can lawfully be assessed against the benefit figure in that Order for the purpose of a re-determination. In January 1997, the Appellant pleaded guilty to conspiring to supply class A and class B drugs and he was sentenced to 12 years imprisonment (reduced to ten years on appeal). The benefit from his offending was assessed at £273,717.70 but his realisable assets at that time were only £823 and the Order was made in that sum. However, following his release from prison, the Appellant acquired assets amounting to some £350,000 through a legitimate property business. The Crown sought satisfaction of the original order by application to the High Court under section 16(2) DTA 1994 for a certificate that the Appellants assets are greater than that assessed under the original order and this was granted. This paved the way for a successful application under section 16(4) for an increase in the original order which was also granted. The Appellant contended (firstly unsuccessfully before the Court of Appeal) that section 16(2) ought not to be construed in a way that allows for the inclusion of legitimately after acquired assets. The supreme Court rejected this contention (Lord Hope and Lady Hale dissenting) finding no support for the proposition that Parliament did not intend for such assets to be the subject of such application. It is perhaps important to emphasise that the Proceeds of Crime Act 2002 makes specific provision for this eventuality in any event (section 22(3)).