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No statutory or other basis to apportion benefit between co-defendants

Anyone harbouring any doubt about the harsh effect that can be produced by a strict application of the provisions of the Proceeds of Crime Act 2002 would be well advised to read the judgment of the Court of Appeal in Lambert and Walding 2012 EWCA 421 into which the Home secretary sought fit to intervene. Having been convicted of drug trafficking and money laundering offences Lambert and Wadling were assessed to have benefited in the sum of £107,860. That figure, it should be emphasised, was the assessed total benefit of the criminal enterprise in which both defendants were involved. somewhat unusually, both defendants had realisable assets greater than that sum and the Crown Court, following May 2008 AC 2018 made an order against both men in the sum of £107,860. This, it was argued before the Court of Appeal, was disproportionate as the state recouped twice the value of the criminal enterprise. section 6(5) ought to be construed in such a way that apportionment is permitted where such obvious anomaly ensues. In the alternative, it was argued that to pursue each defendant for the entire amount of benefit was an abuse of process. The Court held that there was no basis for reading in to the Act any power to apportion in such circumstances.  Pill LJ said: it is legitimate that the entire realisable assets of a person who embarks on a joint drug dealing venture should be put at risk, up to the sum of the joint benefit obtained, and not merely his assets up to the limit of his share of that sum. While the present statutory scheme is in place, the refusal to apportion is a legitimate part of it.


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