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Benefit obtained from seized drugs

In Regina v Freshkumar Kakkad [2015] EWCA 385 the Court of Appeal sought to draw a line in the sand on the question of applying the Waya proportionality principle to the benefit obtained by the acquisition (and loss) of controlled drugs. This was an appeal against a confiscation order in the sum of £324,184 following the calculation of £2.286m in criminal benefit. The benefit was made up of the assessed value of the drugs some of which had been seized by HMRC. The Appellant sought to argue, inter alia, that as the drugs had been seized it was disproportionate in the Waya sense to include their value in calculating the criminal benefit. The Court of Appeal disagreed: "different policy considerations may arise in the different classes of case, regardless of the appellant's contention that the principle should be no different". Cooke J, giving the judgment of the Court went on : "the points made in Waya at paragraphs 32-33 are restricted to the position of goods which are restored to the owner. The position on seizure remains governed by smith and Islam". The Appeal was partially successful on another unrelated ground which reduced the benefit figure accordingly.



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