section 8(8) POCA precludes double counting of assessment for benefit under 'lifestyle' provisions

In Barnett [2011 EWCA 2936] the Court of Appeal was required to interpret section 8(8) of the Proceeds of Crime Act 2002. In 2005, Barnett had been convicted of living on prostitution. Under the terms of an agreement between the Crown and the defence, the Judge made a confiscation order in the sum of £21,017.34. That Order was made under the provisions of the Criminal Justice Act 1988. Barnett continued to run brothels and was convicted again in February 2008 leading to a general assessment of his criminal benefit under the lifestyle provisions in the sum of £5,071,222.70. However, this assessment had been made by calculating benefit for six years preceding the date of charge (section 10(8)). Barnett argued that section 10(9) precluded them from so doing as a confiscation order had already been made against him in connection with the period leading up to the 2005 conviction. section 8 precluded double counting. The Crown argued that the Court was not ˜entitled to assess benefit from general criminal conduct in 2005 because of its failure to serve the requisite notice under section 71 of the 1988 Act (under which that order was made). The Court of Appeal was not impressed with this argument and rejected it. Accordingly, it re-assessed Barnetts benefit at £873,010 as calculated from the date of the 2005 assessment to the date of charge. In fact, it was a largely academic exercise as the 2008 order was for £4,000.