Mark Whittington – v – The Crown [2009] ECWA Crim 1641




This criminal defence case is an appeal in the Supreme Court of Judicature involving a disputed benefit order made under the proceeds of Crime Act 2002 in the sum of £9,672,176.69. The judgement is dated 30 July 2009 and although the appeal failed, it raises a number of issues in relation to the interpretation of POCA 2002 and the impact recent confiscation case law such as R – v – May and several other cases is having on the way such confiscations are being decided. The issue is whether or not a Court should apply the criminal or civil burden of proof when considering evidence that a person has benefited from crime – and circumstances where the different burdens are applicable.

The salient facts involve the interpretation by the Crown of partial records said to evidence substantial dealing in amphetamines. A large part of the benefit was inferred by the Crown from jottings in a notebook discovered at the defendant’s residence. Figures within the notebook included the number 29,800 several times which the Crown contended was the wholesale price for a kilo of cocaine. Other figures suggested a total of 295.8 which the Crown contended was kilos. Thus they said that the defendant had dealt with 295.8 x 29,800 = £8,814,840 which was a sum that was added to more readily identifiable sums forming the defendant’s overall benefit.

The Court had established that the defendant had a criminal lifestyle – there was no doubt here. To determine if the defendant had benefited from his criminal conduct, they needed to determine whether he had obtained property as a result of this conduct. The prosecution must prove the existence of such property to the civil standard of proof. Once the existence of the property has been established in respect of transfer, being held or by incursion of expenditure [sections 10.2, 10.3 and 10.4 POCA 2002] – the question of source of that property arises, as the defendant may seek to show that it is from a legitimate source – with the Crown only needing to prove their case on the balance of probabilities.

However, there is one circumstance that has been decided in R – v – Briggs – Price (Lord Rodger[76-79], Lord Brown [96] and Lord Neuberger [152]) the Crown must establish the possession or expenditure to a much higher criminal standard. This is where benefit was being assessed on past activities not subject of the current indictments for which the defendant had been charged. The Crown had to prove that the defendant obtained property in the past by showing proof of criminal offences for which he had not been charged.

The application of this case law is not straight forward as the fact that the matters are ending up in in the Courts of Appeal shows! However, it is clear that the potential need for better evidence being submitted by the Crown is also evidence of the need for a common sense approach by the defence team (including their expert forensic accountants) when responding to S16 statements that attempt to “throw the book” at defendants with little or no factual evidence backing up very substantial benefit figures.

In a forensic accountancy report providing expert evidence in a criminal defence confiscation it is clearly not appropriate for legal issues to be argued. However, at Mark Jenner & Co we take the view that certain matters should at least be highlighted to provide a base for such legal arguments to be fought – for example if a transfer considered to be benefit occurred prior to the relevant period (six years up to the date of charge), and the transfer was clearly unconnected to the indictments subject of the particular matter, then any forensic report would highlight the following:

  • the evidence presented concerning the existence of the alleged criminal property
  • the evidence presented concerning the source of the alleged criminal activity
  • a business or financial critique of such evidence

It is quite possible that the transfer of property must be established to be derived from separate criminal activity – i.e. proved beyond reasonable doubt.  This is rarely, if ever done by the Crown when often reaching back in time to add to the level of benefit being estimated – where it is often believed that the assumptions will still apply or that a civil burden of proof is all that is required.

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About Mark Jenner

Mark Jenner is an experienced forensic accountant specialising in fraud and white collar criminal matters. He provides independent financial investigation and expert accounting witness services to police forces, fraud regulators and criminal defence lawyers, also providing assistance and solutions to organisations embroiled in financial disputes.

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