Enforcing confiscation beyond benefit disproportionate rules Supreme Court

In the conjoined appeals in the cases of Ahmad and another and Fields and others [2014] UKSC 36 the Supreme Court heard submissions from a stellar array of counsel. Tim Owen QC and Andrew Bodnar from Matrix appeared on behalf of Fields, Andrew Mitchell QC and Kennedy Talbot from 33 Chancery Lane appeared on behalf of Ahmad and Simon Farrell of 3 Raymond Buildings was instructed on behalf of the Crown. In essence, the appeals concerned the apportionment and enforcement of confiscation orders where criminal benefit had been apportioned amongst more than one defendant. So in Ahmad both defendants were ordered to pay the £16.1 million obtained by them following their conviction for an MTIC fraud. And in Fields the judge ordered that each defendant should be made subject of an order in the total benefit of £1.6m. Whilst each of the original defendants challenged their liability for the whole amount, the basis upon which this argument was advanced differed between Field's team on the one hand and Ahmad's team on the other. Ahmad's lawyers contended that each defendant ought to be jointly and severally liable for the whole amount whilst Field's lawyers submitted that the benefit ought to have apportioned equally ie each defendant liable only for his share as opposed to the entire benefit. Lord Neuberger, Lord Hughes and Lord Toulson gave the unanimous judgment of the Court which sided with Ahmad's approach. Their Lordships said that: "judges in confiscation proceedings should be ready to investigate and to make findings as to whether there were separate obtainings" but to "take the same proceeds twice over would not serve the legitimate aim of the legislation and, even if that were not so, it would be disproportionate...accordingly, where a finding of joint obtaining is made, whether against a single defendant or more than one, the confiscation order should be made for the whole value of the benefit thus obtained, but should provide that it is not to be enforced to the extent that a sum has been recovered by way of satisfaction of another confiscation order made in relation to the same joint benefit.  A subsequent confiscation order made against a later tried defendant in relation to the same benefit may well be such an order. In theory a court might therefore need to consider whether to stay the enforcement of a confiscation order made against one or more defendants to await the outcome of a later criminal trial against other defendants in respect of the same criminal conspiracy".