Jersey Unreported Judgments

Confiscation Order - application by the Attorney General

[2020]JRC006

Royal Court

(Samedi)

10 January 2020

Before     :

T. J. Le Cocq Esq., Bailiff, and Jurats Blampied, Ramsden, Thomas, Christensen and Austin-Vautier

The Attorney General

-v-

John O'Connor

Norman Templeton-Brown

S. C. Thomas Esq., Crown Advocate.

Advocate M. J. Haines for Defendant O'Connor.

Advocate J. W. R. Bell for Defendant Templeton-Brown.

JUDGMENT

THE BAILIFF:

1.        This is an application by the Attorney General for confiscation orders against John O'Connor ("O'Connor") and Norman Templeton-Brown ("Templeton-Brown") who each pleaded guilty to an offence of conspiring to supply cannabis and were sentenced respectively to 7½ years and 5 years 9 months imprisonment by the Superior Number of this Court on 23^rd May 2019 (AG v O'Connor Smitton Arrowsmith Howes Heskin Templeton-Brown [2019] JRC 093A). 

2.        The application is brought pursuant to Article 3 of the Proceeds of Crime (Jersey) Law 1999 ("the Law"). 

Preliminary point

3.        A preliminary point was taken as to whether or not the Crown's application was made too late and must accordingly fail.  The Court rejected that argument with reasons to follow.  What follows next are those reasons.

4.        Article 6(1) of the Law provides that the Court may postpone the making of a determination under Article 3 to obtain further information to be obtained for such period as it may specify.  Article 6(3) of the Law provides that the Court shall not unless it is satisfied that there are exceptional circumstances (our emphasis) specify a period that exceeds six months beginning with the date of conviction. 

5.        Templeton-Brown pleaded guilty to conspiracy to supply on 20^th July, 2018, and on a basis that was not accepted by the Crown.  Accordingly on 15^th May 2019 the Court sat to deal with a Newton hearing and thereafter Templeton-Brown was remanded in custody to be sentenced together with O'Connor and others on 23^rd May 2019.  As the Act of Court issued on that date shows, the proceedings against O'Connor and Templeton-Brown under Article 3 of the Law were postponed for further consideration to 30^th July 2019.  It appears, therefore, that when the matter was postponed on 23^rd May 2019, a period of six months had already passed.  The Crown made no application to the Court on that day justifying a further adjournment on the grounds of exceptional circumstances. 

6.        It is clear from the relevant Act of Court that in adjourning the Article 3 application to 30^th July 2019, the Court did so having heard all counsel.  There is no suggestion that any of the counsel argued at that time that confiscation orders could not be made because the Crown was out of time to seek such orders. 

7.        Templeton-Brown relies upon the case of R v Iqbal (Zaffar) [2010] WL 606013 (2010) which dealt with the court's approach to an application made out of time under the Proceeds of Crime Act 2002 (Section 14).  The note following the abstract in that case states:-

"The wording of S14 and in particular S14(3) and S14(8) made it clear that Parliament intended to give prosecutors a longer period than the six months provided for under the earlier legislation.  At the same time, however, it intended to make it clear that any application to extend a period of postponement had to be made before the two year permitted period expired.  Section 14(3) said that the period of postponement "must not end" after the end of the permitted period, and that was not to be taken to mean that the period of postponement should not, but might, end after the permitted period...." 

8.        Of course the statutory regime in Jersey is somewhat different and the Crown relied on the case of R v Johal [2014] 1 WLR 146 (2013), a decision of the Court of Appeal Criminal Division, in which the Court, at paragraph 23 of the judgment said this:-

"23. In R v Soneji [2006] 1 AC 340 the following passages from the headnote encapsulate the decision.  After a recital of the facts the headnote states:-

"On the defendants' appeal against those orders, the Court of Appeal (Criminal Division) held that although there was a power to postpone the making of a confiscation order under section 72A of the 1988 Act, and a power to adjourn such proceedings at common law, the provision in section 72A(3) that the period of postponement was not to exceed more than six months from the date of conviction save where the court was satisfied that exceptional circumstances existed, and the failure of the judge to consider or make any such finding, had deprived him of jurisdiction to make a confiscation order.  The Court of Appeal accordingly quashed the confiscation orders ...

"Held, allowing the appeal, that the correct approach to an alleged failure to comply with a provision prescribing the doing of some act before a power was exercised was to ask whether it was a purpose of the legislature that an act done in breach of that provision should be invalid; *152 that since section 71(1) of the 1988 Act as amended imposed a duty on the court when an offender had been convicted to consider confiscation proceedings, with the purpose of the sequence of such proceedings as required by section 71(1) and the postponement power under section 72A, which precluded any common law power of adjournment, being to make the sentencing process rather than the confiscation procedure as effective as possible; that the judge's failure to adhere to the requirements of section 72A(3) had caused  no prejudice to the defendants in respect of their sentences and any other prejudice to them caused by the delay was outweighed by the public interest in not allowing convicted offenders to escape confiscation for bona fide errors in the judicial process; and that, accordingly, that failure would not have been intended by Parliament to invalidate the confiscation proceedings, and the confiscation orders made by the judge would stand.""  

9.        And at paragraphs 34 and 35, the Court said:-

"34. The court then analysed the section.  The Crown had cited R v Soneji in support of its claim that there was a continuing jurisdiction, even when no order had been made at the time when the "permitted period" had expired.  In its conclusions in R v Iqbal [2010 1 WLR 1985 the Court of Appeal said:

"25. Mr Farrell QC submits that the intention of Parliament was that the application for a confiscation order should be heard within two years of conviction in the absence of exceptional circumstances and that the intention of the Parliament is clear: 'If there has been no application to extend the permitted period of two years before that period expired then the confiscation proceedings cannot continue.' 

26. In our view the wording of section 14 (and in particular of subsections (3) and (8)) makes it quite clear that Parliament intended to give prosecutors a longer period than the six months under the earlier legislation, but at the same time intended to make it clear that any application to extend a period of postponement had to be made before the permitted period expired. 

27. For these reasons we dismiss the appeal." 

35. it is possible that there is some tension between the approach taken in R v Iqbal and the approach of their Lordships in R v Soneji [2006] 1 AC 340.  However, the position in R v Iqbal was clearly distinguishable from the case before us.  In that case there had been no application and no order to extend the period; it had lapsed in silence.  There was no reliance upon "exceptional circumstances" to justify an extension of the "permitted period".  Whether at the time of an extension or a postponement retrospectively, no step had been taken." 

10.      It is clear from the headnote that "the court should not be deprived of its duty to make such an order by a breach which did not prejudice the defendant in any way, a broad approach should be taken to what constituted "exceptional circumstances" and to Section 14 of the Proceeds of Crime Act 2002.

11.      It appears to be common ground that the relevant statutory time limit was exceeded and that no application was made either before the time expired or indeed until today on the grounds of exceptional circumstances. 

12.      Advocate Bell for Mr Templeton-Brown argues that there are no exceptional circumstances and there was no reason why the Crown could not have proceeded sooner.  He points to the fact that disclosure had been required and there was a passage of time before disclosure was provided.  The Court had directed the Crown to serve financial information which had not happened and it was not until Advocate Bell had made a number of enquiries that he received underlying information.  Indeed he had asked for such information before the date of the Newton hearing. 

13.      It was suggested indeed that the Crown had simply forgotten about the requirements for a confiscation hearing and the time period that applies to it. 

14.      Crown Advocate Thomas for the Crown, did not accept that the Crown had forgotten about the confiscation.  In any event, on his submission, it was clear from the authorities that an application for an extension did not need to take place before the expiration of the six month period provided for in the Law.  The requirement for a pre-expiration application was expressly provided for within the current UK legislation but not within the Law. 

15.      He argued, therefore, that the Court should grant the application on the basis that there were exceptional circumstances.  These he characterised as the number of defendants, the fact that three defendants were facing a trial, one had not been apprehended and the others had pleaded guilty.  A trial had been listed for November 2018 but shortly before that pleas had been entered which left one defendant alone maintaining a not guilty plea and a date then had to be re-fixed to the end of January 2019. 

16.      There had been a Newton hearing concerning Templeton-Brown's basis of plea and on 15^th May, when certain defendants pleaded guilty, there were a number of what Advocate Thomas describes as "moving parts" to the prosecution overall.  He said the practical considerations in bringing this matter to a conclusion could be described as exceptional and the hearing before the Court today was agreed by all of the parties at the sentencing hearing and no issue was raised as to the jurisdiction or the ability of the Court to proceed. 

17.      It is clear that this matter was one of significant complexity and was, as described by Advocate Thomas, one of "moving parts" well above the norm that needed to be pulled together.  The defendants pleaded at different times, trial dates had to be fixed and then postponed, one defendant was absent and a Newton hearing was needed prior to sentence to consider a basis of plea. 

18.      Furthermore, in the Court's judgment it does not appear that there was any substantial prejudice caused to the Defendants currently before the Court and the issue of benefit does not appear to the Court to have been prejudiced by any delay. 

19.      In the Court's judgment, taking the matter in the round, there are sufficient exceptional circumstances to justify a significant extension to the six month period provided for under the Law and accordingly the matter could proceed. 

Substantive application

20.      We now turn to the substantive applications before us. 

The Law

21.      The statutory framework requires the Court to determine whether each Defendant has benefited from any relevant criminal conduct. 

22.      Article 1(2A) of the Law provides that:-

"(a) A person benefits from any criminal conduct if that person obtains property as a result of or in connection with the conduct;

(b) In particular, but without derogation from sub-paragraph (a), a person benefits from criminal conduct if the person receives any payment or other reward in connection with such conduct, whether carried on by that person or by another."

23.      Article 1(2B) of the Law provides that "relevant criminal conduct" means "the offences for which the defendant appears to be sentenced, together with any other offences which the Court may take into consideration in sentencing the defendant."   

24.      It is well-known that the English statutory regime is very similar in its terms to the Law insofar as it relates to confiscation and therefore a number of authorities of the courts of England and Wales are of assistance in this matter. 

25.      In R v May [2008] UKHL 28, the House of Lords, at paragraph 48(6) said this:-

"D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else.  He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject.  Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property."    

26.      In R v Green [2008] UKHL 30 at paragraph 15 the House of Lords said:-

"... where two or more defendants obtain control of property jointly each of them has obtained the whole of it within the meaning of the 1988 Act."

27.      In R v Lambert [2012] 2 CR App R(S) 90, the Court of Appeal at paragraph 47, said this:-

"We also respectfully express agreement with the statements of principle in May.  Confiscation orders are made to deprive drug dealers of the profits of their crime and also to deter them and others from drug dealing.  It is legitimate that the entire realisable assets of a person who embarks on a joint drugs 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.  Whilst the present statutory scheme is in place, the refusal to apportion is a legitimate part of it ...".  

28.      In R v Ahmad [2015] AC 299 the Supreme Court at paragraphs 45 and 46 said this:-

"45. The people involved in a criminal joint enterprise which results in the obtaining of a chattel, cash, a credit balance or land, as having jointly obtained the item concerned, in the sense of having obtained it between them.  The fact that the item may have been physically taken or acquired by or held in the name of one of them does not undermine the conclusion that they jointly obtained it.  The word "obtained" should be given a broad, normal meaning, and the non-statutory word "joint", referred to by Lord Bingham in May ... should be understood in the same non-technical way.

46. Accordingly, where property is obtained as a result of a joint criminal enterprise, it will often be appropriate for a court to hold that each of the conspirators "obtained" the whole of that property.  That is the view expressed in May....  However that will by no means be the correct conclusion in every such case."     

29.      At paragraph 56 of that judgment, the Supreme Court went on to say:-

"In many cases it is often completely unclear how many people were involved in the crime, what their roles were, and where the money went.  As a result, if the court could not proceed on the basis that the conspirators should be treated as having acquired the proceeds of crime together, so that each of them "obtained" the open "property", it would often be impossible to decide what part of the proceeds have been "obtained" by any or all of the defendants.  There is obvious cause for concern about having to enquire into the financial dealings between criminals who have together obtained property, especially given that the ring leaders are often not even before the court.  It is one thing for the court to have to decide whether a defendant obtained any property, which the 2002 Act requires.  It is another thing for the court to have to adjudicate on the respective shares of benefit jointly obtained, which the Act does not appear to require." 

30.      The Defendants referred to R v Allpress [2009] EWCA Crim 8, in which the Court of Appeal of England and Wales, at paragraph 31 of the judgment, stated in addressing two misconceptions which it thought might still be common:-

"One was that in assessing benefit in a conspiracy case each conspirator is to be taken as having jointly obtained the whole benefit obtained by "the conspiracy". A conspiracy is not a legal entity but an agreement or arrangement which people may join or leave at different times.  In confiscation proceedings the court is concerned not with the aggregate benefit obtained by all parties to the conspiracy but with the benefit obtained, whether singly or jointly, by the individual conspirator before the court.  The second misconception is a variant of the first.  It is that anybody who has taken part in a conspiracy in more than a minor way is to be taken as having a joint share in all benefits obtained from the conspiracy.  This is to confuse criminal liability and resulting benefit.  The more heavily involved a defendant is in a conspiracy, the more severe the penalty which may be merited, but in confiscation proceedings the focus of the inquiry is on the benefit gained by the relevant defendant.  In the nature of things there may well be a lack of reliable evidence about the exact benefit obtained by any particular conspirator, and in drawing common sense inferences the role of a particular conspirator may be relevant as a matter of fact, but that is a purely evidential matter."      

31.      The Defendant also relied on Archbold [2019 Edition] at paragraph 5B - 303 the learned author summarised Allpress as follows:-

"In R v Allpress [2009] ... it was held (considering R v May, above) that a person who acts as a mere courier or custodian of criminal property does not "obtain" the property which he is delivering or minding within the meaning of the 2002 Act."  

32.      Further, at paragraph 5B - 305, the learned authors summarised the case of R v Clark and Severn [2011] EWCA Crim 15 as follows:-

"R v Allpress was extended in R v Clark and Severn [2011] [...] to a person whose role in a conspiracy to handle stolen vehicles went beyond that of a mere custodian or courier.  As a bailee of the vehicles, it was his function to containerise them and transport them to a port in preparation for their shipment abroad.  Whilst he was an "integral facilitator" of the overall conspiracy, there was nothing to link him either with the original thefts or with the onward sales abroad or the proceeds of such sales or to suggest that the cars were jointly owned by him with the other principal conspirators.   It was held that the judge erred when he reasoned from the importance of the defendant's role directly to a value judgment that the assessment of his benefit for the purposes of sections 76 and 84 of the 2002 Act (5 - 154, 5B - 164) should the valuation of the motor vehicles that passed through his hands, and distinguishing Sivaraman, above and Allpress on the ground that there the offenders' conduct was "of a limited nature, such as a courier".  Talk of "mere" couriers or custodians is not, or not only, a reference to the possibility that the roles of such persons are generally of a more minor nature, but rather, as a matter of principle, that such persons who are paid a fee or salary for their involvement, and who will also be bailees, are not conspirators or participants of such a nature as to make it likely, or to suggest the inference, that the property concerned is in their joint ownership; that after all, the court said, is the ultimate question to which the trilogy of cases in the House of Lords (R -v- May, above, and Jennings -v- CPS, and R -v- Green, 5B - 305) directs attention; as pointed out in Jennings and again in Allpress, a defendant may play an important role in a conspiracy without obtaining property for the purposes of the test of benefit."   

33.      When sentencing O'Connor on 23^rd May 2019 the Superior Number said:-

"In the cases of O'Connor and Smitton and Heskin, there seems little doubt that they were the most involved of the defendants before us in this operation.  We do not say for a moment that they are the only persons involved and there may well be others above them in the chain, but nonetheless, O'Connor was responsible for co-ordinating the arrangements in Jersey by ensuring the drugs arrived and liaising with Smitton who is a Jersey resident who was going to be responsible for the Jersey distributions....We think they take full responsibility for the drugs in question which weigh over 30kgs."    

34.      Templeton-Brown submitted a basis of plea in which he asserted that he had agreed whilst be was on holiday in India for his lock-up garage to be used for the storage of cannabis for a brief period.  He stipulated that the drugs were to be removed by the time he came back to Jersey.  When he returned and found this had not happened, he contacted the individual responsible for the drugs and said he wanted the drugs removed.  He maintained that he did not have, nor did he want to have, any involvement in the onward movement of drugs from the lock-up.  The Crown did not accept the basis of plea and following a Newton hearing, the Superior Number characterised Templeton-Brown's involvement in the following way:-

"He said, in his evidence at the Newton hearing, that his involvement was limited to receiving a telephone call whilst he was on holiday in India, when he agreed to make his garage available to the storage of some drugs.  He told us he did not accept that he was involved in the conspiracy at an earlier stage because the discussions which he had had with one of his co-defendants in September related to some invitations to the Chester races.  He told us he did not know the quantity involved and it said that we should have regard to the amount that was actually found in his garage, which was 4.9kg.  He did tell us at the Newton hearing that he had gone to inspect the garage when he came back from holiday in India and to change the padlock on the garage, which of course secured the drugs in the garage for that much longer.  We did not accept that the Crown had established that a meeting which he had with one of his co-defendants Heskin was for the purposes of transferring money to Heskin.  However we also made it plain at the closing of the Newton hearing we did not accept his basis of plea either.  We found that his statement to us, that his involvement started when he was on holiday in India and that he simply accepted that he would make his garage available for an unknown quality of drugs to be left in that garage, we found that to be incredible.  We did not accept his evidence in relation to the Chester races.  So we said at the close of the Newton hearing that we concluded that he was more than a mere custodian, but he was a custodian, he had an important part to play.  Today we do not see that he should get any credit for not knowing how much cannabis would in fact be stored on the premises.  He agreed that he would be part of this conspiracy and he has to accept that in our view.  Accordingly we take the view that he has a lesser involvement than O'Connor, Heskin and Smitton....".

35.      In the instant case, the value of the drugs, which was not disputed, was assessed at £507,000 comprised of:-

(i)        drugs seized from a conspirator's apartment (£390,000);

(ii)       drugs seized from Templeton-Brown's lock-up (£79,500); and

(iii)      25 bars of cannabis recovered from the address of another conspirator (£37,500).    

36.      The Crown submits that based on the authorities referred to above it would be appropriate to assess O'Connor's benefit as the street value of the entirety of the drugs recovered in respect of the conspiracy.  The Crown argues that there is a clear basis for concluding that he "obtained" the drugs jointly with his fellow conspirators and was able to direct what happened to them.  The extent to which he may have been physically in possession of the drugs at any point is less important than the fact that he had overall control of the operation even though those at the top of the operation may not have been before the Court.  It would not, following Ahmad above, make it appropriate to decline to attribute benefit jointly between the conspirators nor should any form of apportionment of benefit be attempted and it would be inappropriate.  Accordingly the Crown sought a confiscation order in respect of O'Connor based on a benefit of £507,000 and an available amount of £429 making a confiscation order of £429.        

37.      With regard to Templeton-Brown, the Crown urges us that because the Superior Number rejected the description of Templeton-Brown's role as a "mere custodian" we may be satisfied that he was an important participant and was jointly responsible with the others for the drugs recovered in the course of the conspiracy even though only a portion of the drugs were stored at his premises.  Accordingly the Crown assesses Templeton-Brown's benefit also as £507,000 and from a list of his assets assesses the available amount for confiscation as £74,674 which is the order that it seeks. 

38.      The Crown's position is that the Defendants obtained within the meaning of the Law the street value of the cannabis.  The Crown relies on May and Ahmad cited above and makes the submission that if the Court accepts that there was a joint obtaining of the drugs then it is not appropriate to divide up those drugs by way of apportioning them between the Defendants unless there is a clear basis for doing so. 

39.      The Crown also refers to a number of paragraphs in the statement of facts as submitted to the sentencing court to show some of O'Connor's activities.  This was the basis on which he was sentenced and on which he accepted sentence.  It seems to us to be clear that he did indeed play a significant part in co-ordinating all of the arrangements in Jersey, ensuring the drugs arrived, and liaising with co-conspirators who were going to deal with the Jersey distributions.

40.      With regard to Templeton-Brown, the Superior Number's characterisation of his involvement was, of course, made after a Newton hearing considering the basis of plea that he entered.  The Superior Number, after hearing evidence, expressly rejected his assertion as to his limited involvement and of course he had changed the lock on the garage when he had returned to Jersey from India thereby securing his own control over the drugs that remained on the premises. 

41.      For O'Connor, Advocate Haines recalled the cases of Allpress and Clarke referred to above and pointed out that the Crown must prove their assertions by evidence and not supposition or assumptions.  No cannabis was found in the possession of O'Connor, he had been under surveillance and no-one could say that he had carried cannabis at any time.  The evidence did not support the overall control - those with control over the drugs so it was argued, were simply not before the Court. 

42.      He relies on the case of R v Brookes [2016] EWCA Crim 44, a judgment of the Court of Appeal of England and Wales, in which the court, at paragraphs 3 and 4 said this:-

"3. The defendant's case, rejected by the jury, was that he knew nothing about and had no involvement in any conspiracy to import the drugs.  The Crown's case against him was that his role in the conspiracy was as an organiser and procurer of the boats and yachts which would transport the drugs which had originated in South America to the United Kingdom.  He was also concerned with the hiring of the crew and directing arrangements of the importation.  The use of the yacht was central to the importation and the defendant had given directions about the loading and storage of the cocaine and must have been involved in liaising with the South American suppliers in determining where it would be transferred to the yacht off the coast of South America. 

4. There was evidence that the defendant had sent cash transfers to the crew after purchase of the yacht for the purpose of picking up the cocaine.  He had, prior to the yacht's departure, made two trips to South America for the purpose of arranging matters, using false identifies.  There was evidence showing his ability to be in contact with the satellite phone on the yacht as it made its journey, as well as evidence capable of showing involvement with arrangements for a rendezvous point off the coast of north Wales for transfer of the drugs.  There was also evidence that prior to the purchase of Dances With Waves the defendant had visited Trinidad and had been involved in the purchase or proposed purchase of two other boats using false identities.  In addition to that general summary, there was evidence of a lavish lifestyle well beyond the defendant's known or declared income."   

43.      Advocate Haines urges us to compare the role of Brookes in that case with O'Connor's much more limited role.  It was submitted that during the course of the sentencing Advocate Haines had submitted to the sentencing court that O'Connor did not participate at all in the organisation, supply and delivery of the cannabis into Jersey.  This, he said, had not been challenged.  He was not the money man and he had no power of disposition.  He had no interest in the drugs.  He had not obtained property in the drugs on the facts of that case. 

44.      On behalf of Templeton-Brown, Advocate Bell submits that the Crown has simply failed to prove any benefit and there was simply a lack of evidence to support the claims.  Mr Templeton-Brown had legitimate business activity and ran his own carpentry business. 

Conclusion

45.      There was a conspiracy to import a substantial amount of cannabis resin into Jersey.  Each of the Defendants before us played a part in that conspiracy. 

46.      We rely upon the characterisation of O'Connor's involvement as set out in the judgment of the Superior Number.  There is little doubt, as the Superior Number said, that he was among the most involved of the Defendants and co-ordinated the arrangements in Jersey, ensuring that the drugs arrived and were stored and liaised with the individual in Jersey who was to be responsible for the local distributions.  It was on the basis of this and other matters contained in the statement of facts submitted by the Crown that he was sentenced.  Those facts were not challenged.

47.      Amongst other things contained in the statement of facts was:- 

(i)        O'Connor had travelled from Liverpool to Jersey and on arrival made his way straight into St Helier where he met one of the co-conspirators. 

(ii)       There were mobile telephone conversations between him and other conspirators.    

(iii)      On 2^nd November he met one of the conspirators.  The record of their conversation which was undertaken on a covert basis, demonstrated that:-

(a)       O'Connor had access to a commercial amount of cannabis;

(b)       He needed to distribute some of the cannabis and had to give an off-Island third party supplier £50,000 to £60,000;

(c)       One of the conspirators arranged to take 2kg and 4kg of cannabis from O'Connor and indicated that he could pay O'Connor for 2kg upfront. 

(d)       O'Connor arranged for drugs to be stored. 

(e)       He was also subject to a covert recording of a telephone conversation with a co-conspirator indicating that O'Connor had an interest in certain drugs of an illicit nature and that he needed the drugs that one of the conspirators had to be distributed.  O'Connor would take responsibility for collecting payment. 

48.      This is not the full content of the Crown's statement of facts but it is clear that O'Connor was sentenced on the basis that he was a major player in the importation and arrangements for distribution at the Jersey side and he certainly, in our view, had control over the drugs in question. 

49.      In our judgment, accordingly, on the principles set out above, he did in fact have control and dispositive powers over the drugs in question (even though he may have been accountable to one or more individuals higher up the chain) and we assess his benefit in the full amount moved for by the Crown and make the orders accordingly. 

50.      With regard to Templeton-Brown, we think the position is somewhat different.  There does not appear to us to be a sufficient basis for saying that Templeton-Brown's interest in the drugs extended beyond the amount in his lock-up garage.  However, on the basis of the findings of the Superior Number, we are satisfied that for those amounts at least he obtained control and had in reality dispositive powers.  This is reinforced in our view by the fact that on his return to Jersey he changed the locks and could thereby have withheld or distributed the drugs from his lock-up garage at his discretion.

51.      We do not, however, see a sufficient evidentiary basis to suggest that he was involved in the entirety of the importation and in our judgment his benefit was the value of the drugs seized in his lock-up garage, some £79,500.  On the basis of that assessment we nonetheless make the order sought by the Crown given that the sum to be confiscated is less than the benefit that we have found.  We direct the Viscount to take such steps as are necessary to realise the assets held by her for the purposes of discharging the confiscation order

Authorities

AG v O'Connor Smitton Arrowsmith Howes Heskin Templeton-Brown [2019] JRC 093A. 

Proceeds of Crime (Jersey) Law 1999. 

R v Iqbal (Zaffar) [2010] WL 606013 (2010). 

Proceeds of Crime Act 2002

R v Johal [2014] 1 WLR 146 (2013). 

R v May [2008] UKHL 28. 

R v Green [2008] UKHL 30. 

R v Lambert [2012] 2 CR App R(S) 90. 

R v Ahmad [2015] AC 299. 

R v Allpress [2009] EWCA Crim 8. 

Archbold Criminal Pleading, Evidence and Practice [2019 Edition]. 

R v Clark and Severn [2011] EWCA Crim 15. 

R v Brookes [2016] EWCA Crim 44.