Silcock & Anor, R v [2004] EWCA Crim 408

Case No 200205168/A8-200301022/A8-200302050/A8[2004] EWCA Crim 408
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 29th January 2004
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE POOLE
MR JUSTICE DAVIS]
Between
R E G I N ACrown-v-
Between
TERENCE JAMES FRAXIER SILCOCKDAVID LEVIN
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR N FOOKS appeared for APPELLANT SILCOCKMR FORTSON and MR A BAJWA appeared for APPELLANT LEVIN
J U D G M E N T
[1]MR JUSTICE POOLE: On 14th February 2002 in the Crown Court at Worcester, the appellant, Terence Silcock, pleaded guilty on rearraignment to count 2 of an indictment numbered T20010166/1 and was remanded in custody for sentence. On 24th April 2002, in the same court, the appellant, David Levin, was convicted on counts 1 and 2 of that indictment, after a trial, lasting 48 working days and remanded in custody for a pre-sentence report. On 26th July 2002, in the same court, they were sentenced by His Honour Judge Cavell as follows: Silcock, on count 2, conspiracy to deliver counterfeit notes, 6 years' imprisonment. In addition forfeiture orders were made in his case in respects of sums $98,000, $1,000, $1,100 £10,848.61. Levin was sentenced on count 1, for conspiracy to import counterfeit of currency notes to 9 years and on count 2, conspiracy to deliver counterfeit notes, to 9 years' imprisonment concurrent. Nine other offence were taken into consideration in his case.[2]A confiscation hearing began at the Worcester Crown Court on 6th January 2003, before the same judge. On 9th January the judge assessed Levin's benefit at £1,050,000 and his realisable assets at £789,300 plus interest on a property sold during 2002. A confiscation order was made in the sum of £789,300 plus the interest accruing on £298,503.09 since June 2002, that sum to be paid within 2 years and with 4 years' imprisonment consecutive to be served in default of payment.[3]There were co-accused, Mark Anthony Adderley, was a man of 46, with a total of 21 previous convictions who was also convicted on counts 1 and 2. He was in breach of licence following release from an earlier sentence and ordered to return to prison to serve 12 months balance of that sentence, before a sentence of 4 years' imprisonment was imposed on the instant matters. Another man, Jones, failed to answer to his bail, a bench warrant was issued and two other men, Charalampidis and Musin, were acquitted on counts 1 and 2. In the present proceedings Silcock appeals against his sentence and Levin against his sentence and the confiscation order, each by leave of the Single Judge.[4]The brief facts were these. The relevant counts charged Levin and Adderley with conspiracy to import high quality counterfeit US $100 bills from eastern Europe to Ireland and Levin, Silcock and Adderley with conspiracy to effect their subsequent distribution within the United Kingdom. Both conspiracies were charged as occurring between 1st January 1998 and 9th June 1999. The agreement was to smuggle the counterfeits into the United Kingdom and change them for genuine currency. The counterfeits were bought by or on behalf of the official IRA from sellers in Russia probably connected with the former KGB. They would be smuggled into Ireland and transferred from there to the United Kingdom, to be exchanged at banks or Bureau de Change for genuine dollars or sterling. Many people were involved in the venture. Some had connections with the former Soviet Union. Levin, for example, was believed to be Armenian but lived in his own house in Alberchurch. Charalampidis and Musin were also from the former Soviet Union, but living in the United Kingdom at the time of the conspiracy. Others were Irish, none of whom were before the court because they were outside the jurisdiction. They were initially involved in the purchase and transportation of the counterfeits from Russia to Ireland.[5]Later, Levin and his East European associates also became involved. A third group were English criminals, including the appellant, Silcock, and his co-accused, Adderley and Jones. Adderley was a go between for Levin and Silcock but more the agent of Levin for whom he acted for 6 months before his arrest. Silcock and Jones, who had been regarded as Silcock's right-hand man, collected the dollars from Ireland for laundering by people such as the London based Charalampidis who was said be a courier and Musin said to be a fairly lowly assistant of Levin, as the prosecution maintained, but all of them under the direction of Levin. Silcock was responsible for accounting to the Irish for their share of the laundered proceeds.[6]It was said that the counterfeits were of exceptionally high quality and even people experienced in handling notes were unable to detect the forgeries by sight or by feel. The amount involved was difficult to assess having mostly disappeared into the monetary system. But the indications were it was to be measured in millions. Very large amounts were detected world wide. The United States Secret Service investigation revealed that the distribution was being carried out by left wing and terrorist organisations with the intention of undermining the currency of the United States, the profit motive being a secondary issue.[7]The producers of the counterfeits were able to change the design to correspond with changes in the genuine currency. Surveillance, over a long period, was by means of conventional surveillance, undercover officers, covert listening devices and conventional detective work. The investigation culminated on 8th June 2000 when Silcock met with Adderley and others at an address in Birmingham. Another man arrived and Silcock handed him a bag which had been in the boot of his car. The man then drove a short distance before being stopped by police. It was found that the bag contained $98,000 and that the man had a further $1,000 in his pocket. Silcock too was arrested and he had $1,000 on him. Adderley was also arrested and on the same day Levin was arrested at an address where £6,300 was found upon a table. All their addresses were searched and further items were seized.[8]All save Levin were subsequently committed to the Crown Court on bail. Levin had failed to comply with the magistrates' bail conditions. Silcock failed to answer to his bail and was subsequently rearrested.[9]Levin's other offences, nine of them, related to the possession and the use of false passports during the conspiracy and after it.[10]The basis of Silcock's plea was that he was an agent of Irish and Russian principals but not directly involved in the negotiations between them. He had no direct role, he said, in the laundering. His gain was not substantial. He did not supply the counterfeits laundered by the co-accused, Jones, nor was he involved he said in any agreement with an Irish courier.[11]The sentencing judge concluded that Silcock, Levin and Adderley fell to be sentenced for taking part in the distribution of counterfeit $100 bills of exceptional quality. The conspiracy amounted to professional, sophisticated and organised crime. Enormous resources had been required to detect it. The court was satisfied that Levin was the main driving force in the conspiracies with links to Russia and Eastern Europe and closest to the actual forgers. He had been careful to stay in the background, while remaining a central player and making large sums of money for himself.[12]Silcock had acted as an agent between the Irish and Russian connections and was a partner of Levin. He made frequent trips to Ireland and even involved his own family as couriers. Adderley came into the conspiracy only after it was up and running thereafter playing his part as Levin's assistant or intermediary.[13]The maximum sentence was one of 10 years. The two counts were essentially facets of a single conspiracy. In the case of Levin he had contested the case and had been convicted on both counts. There would be concurrent sentences of 9 years on each count.[14]Silcock was convicted on one count. On his own admission he played a significant part but was placed at a lower level than Levin. Had he contested the case the judge said that the sentence would have been one of 7 years. It could be reduced because of the plea to one of six. Regard was had to the stage at which the plea was made, after he had absconded and had delayed the start of the trial.[15]Adderley, the judge said, was at the lower end of the scale compared with co-defendants though he had played his own significant part. He would be returned to prison to serve 12 months of the unexpired term of an earlier sentence on the completion of which he would serve a further 4 years for his part in the instant conspiracies.[16]A confiscation ruling was made on 9th January 2003 in Levin's case only. The learned judge had before him the prosecutor's statement, with supporting appendices. These included statements from witnesses which did not form part of the evidence given in the trial. The prosecutor's statement showed that Levin had been responsible for arranging the importation and distribution of about $4,250,000 worth of counterfeit notes throughout the United Kingdom, with a face value of £2,626,061 comprising the minimum benefit he had received. The amount that might be realised consisted of five properties worth a total of £835,000, together with £6,300 in cash found at one of his addresses. That amount totalled £841,300.[17]The defence reply did not accept the value of the benefit and disputed the amount that might be realised. In his judgment the learned judge assessed the benefit at £1,000,050 and the net realisable assets at £789,300 plus interest on a property that had been sold in June 2002.[18]In the course of his ruling he made this observations:
"In dealing with the prosecution application, I have taken into account the evidence in the trial as a whole, as I take the view I am entitled to do. The prosecution in their prosecutor statement have attached to that statement various statements from witnesses that did not form part of the evidence in the trial before the jury. As I indicated to defence counsel in the course of argument about those matters, I do propose to take those statements into account but I bear in mind that those witnesses have not given evidence and so what they say has not been tested in cross-examination. I take the view that that goes to their weight but not to their admissibility or relevance. I take the view that, as part of my sentencing powers, I am entitled to draw inferences from really a variety of sources and types of evidence and material that has been put before me and the jury and subsequent to the jury's conviction in this hearing."
It is that approach that forms the main basis of Levin's appeal against the confiscation order.[19]Silcock is now 58 years of age. He has four previous convictions, three involved dishonesty and one false imprisonment and kidnapping. In the past a custodial sentence and a further suspended custodial sentence have been imposed.[20]In Silcock's case there is a pre-sentence report, dated 5th June 2002. There he claimed to be a trader for a number of years importing and exporting goods between England and Ireland. It was during the course of that he said that he met Russian and Irish members of the counterfeiting operation and ended up as a facilitator. In that capacity he had taken a percentage of the profits totalling, he claimed, about £40,000. He was known to be associated with organised crime in Russia and with militant Irish republicanism. He had always been in employment up to 1999 when he had been diagnosed with angina, serious enough to be granted a disability allowance.[21]Levin is a Russian born Armenian national and has various aliases. He is now 38 years of age. No antecedents were with the papers and it is believed that no previous convictions are recorded. It is known that an attempt was made in 1988 by the Russian authorities to extradite him. The pre-sentence report in his case is dated 26th June 2002. He said he was brought up in former Soviet Union, served in the Soviet Army, saw service in Afghanistan and worked in military intelligence and the security services as a KGB officer. He moved to England in about 1993 and began trading in household goods and toiletries to Russia. Later he became involved in the building trade. He is a married man with a teenage daughter. He claimed to have met Silcock through a colleague in the building trade, namely Adderley. At that time Silcock was already involved in import and export of counterfeit United States dollars. Silcock had asked him to provide visas to facilitate travel for the smugglers and this he claimed was more or less the extent of his involvement. Those then were his claims within the pre-sentence report.[22]In grounds settled by counsel, with an advice, it is submitted on Silcock's behalf that his sentence was manifestly excessive, that insufficient credit was given for his guilty plea, that there is disparity between his sentence and that of Adderley and that insufficient account was taken of his age.[23]In grounds settled on Levin's behalf, it is submitted that the sentence of 9 years is manifestly excessive, falling little short of the maximum and that the role attributed to him was contrary to the weight of the evidence. It is therefore argued that the sentence was wrong in principle and the judge erred in drawing a distinction between him and Silcock. It is argued therefore that this sentence is manifestly excessive and that it failed to reflect the available mitigation.[24]There are further grounds 4 and 5 in these terms, that the judge erred in Levin's case, in law, in permitting the prosecution to rely in the confiscation proceedings on information and evidence that was inadmissible by the ordinary rules of criminal evidence, and improperly attached weight to it in making the confiscation order. Alternatively it is argued, if the prosecution was entitled to rely in confiscation proceedings on ordinarily inadmissible information and evidence, no weight should be attached to it.[25]Further to that, in his grounds of appeal, it is argued on Silcock's part that the sentence of 6 years was manifestly excessive on the grounds that if the case of R v Dossetter & Ors [1999] 2 Cr App R(S) 248 is good law, the applicant has effectively been sentenced as a principal. It is argued, too, that the basis of his plea was that he was not a principal and included his claim that he was not directly involved in the negotiations between principals and that he had no personal participation in the laundering. Therefore it is argued that the judge failed to give sufficient credit to his plea, which had saved approximately a month of the court's time. Whilst he could not claim full credit for that plea, given the timing and the circumstances of it, it is argued that he was entitled to more than 12 months' credit.[26]There is then advanced a disparity argument with Adderley. It is urged upon us that the appellant, Silcock, had no convictions for dishonesty in the past 25 years save for a conviction in 1997 and we were urged again to consider his angina condition. As to Silcock's sentence, we make these observations. The background, the sophistication and the scale of the present conspiracy, together with its international dimension take it onto a wholly different plain than that in Dossetter. In Dossetter two batches of counterfeit money were produced, the first had a face value of $200,000. Those were relatively crude forgeries and soon came to light, although an attempt was made to distribute some of them in the United States. A second, and improved batch, was produced with a face value of $6 million, but none of these were ever distributed and the conspiracy was swiftly extinguished through the good offices of an undercover officer. Nonetheless Dossetter's sentence of 7 years' imprisonment was upheld by this Court.[27]Dossetter played the major role in that conspiracy and like Silcock entered his plea very late in the day. But given the scale of the present conspiracy, we do not see how Silcock can extract any comfort from any decision in Dossetter.[28]It is true that, on his basis of plea, Silcock was not himself a principal nor directly involved in negotiations between the principals, nor personally involved in laundering, though he was fully aware of it. He was, however, knowingly participating in international crime and was an agent between the Russian and Irish connections and between Ireland and Great Britain, facilitating the transfer of the dollars so that they could be brought here for laundering. Many trips were made by him for this purpose. He even involved his family in the criminality.[29]Complaint is made of the disparity with Adderley but Adderley came into the conspiracy only after it was up and running. In our judgment, notwithstanding the absence of a plea in Adderley's case the judge was entitled to distinguish between them as he did.[30]Finally, it is complained that Silcock received insufficient credit for his plea, namely credit of only 12 months. But that plea was entered at a very late stage and only after Silcock had absconded on bail and had delayed the trial. Credit was bound to be limited and the judge was generous in not imposing an additional sentence for breach of bail.[31]Levin's complaints, so far as his sentence of 9 years' is concerned, are these. First, it was wrong to describe him as the driving force, or as essential player, or as closest to the actual forgers. Second, his sentence was out of line with those imposed in Dossetter. Third, there was disparity between his sentence and that of Silcock. Fourth, he was of previous positive good character, a submission developed in the skeleton argument which we have all read.[32]We make these observations. The judge was well placed to assess Levin's role and to compare and to contrast it with Silcock's. The descriptions of it that are complained of were not, in our judgment, inappropriate. He was able to acquire false documents and false identities with ease and to stay in the background whilst earning very large sums of money from the proceeds of the conspiracy, which he was able to convert into properties totalling well over £750,000 in value. Unlike Silcock he did not have the mitigation of a plea.[33]In our judgment, the sentence passed on Levin was neither manifestly excessive, nor disparate with Silcock's. His appeal against the sentence of 9 years is dismissed.[34]We now turn to grounds 4 and 5 on Levin's appeal which are that the judge erred in law in permitting the prosecution to rely in the confiscation proceedings on information and evidence that was inadmissible by the ordinary rules of criminal evidence, or alternatively, if the prosecution was entitled to rely on such evidence, that the judge improperly attached weight to it in making the confiscation order.[35]Levin's complaints, set out in a skeleton argument, originally dated 5th February 2003 but since revised and amplified by Mr Fortson who has addressed us today, are these: that the prosecutor's statement in the confiscation proceedings relied on two separate types of hearsay evidence in order to prove the appellant's benefit and realisable assets. First, Silcock's admission in interview that the imported currency had a face value of $4.25 million which was not led at trial and which would not have been admissible there against Levin anyway. Second, a number of other witness statements not led at trial nor by way of oral evidence during the proceedings. The judge, rejecting an argument of inadmissibility, ruled that the strict rules of criminal evidence did not apply and that it was for him, having admitted such material to decide what weight to attach to it.[36]So far as the law is concerned, Mr Fortson, in resolute submissions before us, has advanced these arguments. Although Part VI of the Criminal Justice Act 1988 has been in force for nearly 15 years, there is no authority directly on the point whether the ordinary rules of criminal evidence apply in confiscation proceedings under the Act. Similarly he says, he can find no authority directly on the point in relation to the Drug Trafficking Act. He refers the Court to the case of R v Dickens (1990) 12 Cr App R(S) 191, which deals directly with the position in relation to the now repealed Drug Trafficking Offences Act of 1986.[37]Setting out the structure of that Act and the procedures under that Act, Lord Lane CJ said this:
"It is clear from these provisions that where the prosecution statement is not accepted by the defendant, the prosecution, if they wish to rely on any of its contents, must adduce evidence to establish them. The judge then hears the evidence on either side and reaches his conclusion (1) as to whether the defendant has successfully rebutted any provisional assumptions under section 2; (2) as to the existence of any benefit from drug trafficking; and (3) as to the value of such benefit."
Mr Fortson submitted that although Lord Lane CJ did not say so directly he must have meant that the prosecution must adduce admissible evidence, if they wished to rely on any of the contents of the prosecution statement.[38]In the case of R v Rose (1993) 97 Cr App R 253, he submits that there are words of Alliott J that support that view. He quotes them:
"We agree that if admissible evidence satisfies a judge so that he is sure that any given sum is a benefit, then there is no need for him to proceed by way of section 2(2) at all."
[39]Mr Fortson then made detailed submissions and referred to them orally before us about a further case under the Drugs Trafficking Offences Act namely R v Chrastny No 2 93 Cr App R 406. That case was decided in March 1991, and was a case in which one co-defendant's unsworn statement about another was deemed inadmissible in any proceedings against the co-defendant. He submits, therefore, that by parity of reasoning with the Drugs Trafficking Offences Act, the principles set out in the cases of Dickens, Rose and Chrastny must also hold true in confiscation proceedings under Part VI of the Criminal Justice Act 1988. He continues with this submission: that, if the rules of evidence governing confiscation proceedings were intended by Parliament to be different to those in criminal trials then there would be legislation making express provision for it. As we shall see presently, in our judgment, there is such legislation and it has existed for some years.[40]Mr Fortson submits, reasonably enough, that it need hardly be stated that confiscation orders may have very severe and far-reaching consequences. Large sums of money may be confiscated, valuable assets may have to be sold. In this case four homes were involved and substantial terms of imprisonment fixed in default. Accordingly he submits that the judge's ruling that the ordinary rules of evidence did not apply was wrong in law. Alternatively, he submits that, if the prosecution is entitled to rely in confiscation proceedings on ordinarily inadmissible evidence and information, no weight should be attached to it.[41]Mr Smith, in a skeleton argument of recent date, to which he has made reference today, before us, makes these submissions. First, that the original provisions of Part VI of the Criminal Justice Act 1988 were amended by Part III of the Criminal Justice Act 1993 in two important ways. First, section 27 of the 1993 Act enacted the insertion of a new section 7A, providing that the burden of proof should be that in civil proceedings.[42]Pausing there, it is the view of this Court that that provision was one that was intended by Parliament to change and that did very significantly change the procedural landscape in proceedings for confiscation. Earlier judgments of the court, such as those in Dickens, Rose and Chrastny now have to be viewed in that light.[43]Section 28, continued Mr Smith, of the 1993 Act, enacted the insertion of a section 72A providing for the postponement of determinations under the Act, for the purposes of obtaining further information, a word he stresses, before determining a defendant's benefit or the amount to be recovered. He points out to us today that section 73A(1) and subsections (2) and (3) adopt the same term, 'information'.[44]Similar amendments he points out were made by Part II of the 1993 Act to the Drug Trafficking Offences Act 1986.[45]Mr Fortson has relied on the use of the word "evidence", in the case of R v Williams No 200004492/X4. But, in our judgment, there is nothing in that case (a case with which this Court is familiar) to displace what we regard as the clear effect of sections 27 and 28 of the Criminal Justice Act 1993.[46]The cases of Dickens, Rose and Chrastny, cited by counsel, were decided in 1990, 1991 and 1992 respectively, in relation to the unamended provisions of the 1986 Act, that is to say the Drug Trafficking Offences Act of 1986. It is submitted by Mr Smith, correctly in our judgment, that the amendments affected by Part III of the 1993 Act make express provision for the rules of evidence governing confiscation proceedings to be different from those in criminal trials and that Parliament so intended directly contrary to the argument that has been advanced by Mr Fortson. Again, we agree.[47]For this reason he submits, and again we agree, that the judge was right to rule that the ordinary rules of criminal evidence did not apply and that the confiscation hearing was an extension of the sentencing hearing, and was more in the nature of civil proceedings, though we prefer a description that the confiscation hearing is an extension of the sentencing hearing, and therefore criminal in nature, but that by virtue of the 1993 Act the civil procedure is correctly adopted and applied. Turning to the facts Mr Smith goes further and submits that, even if the submissions of the appellant had been correct, the judge in the present case was entitled to find as he did, on the basis of material he had derived from the evidence in the trial and the documentary evidence put before him. The contested findings related to, first, whether the defendant had benefited from the relevant criminal conduct and second to the amount to be recovered in his case.[48]The information as to the amounts provided by Silcock in interview were not, as a matter of fact, self-serving. It consisted of his, Silcock's, estimate of the face value of the dollar bills dealt with by members of the conspiracy.[49]The judge discounted that figure by 60%, having regard to the evidence received during the trial and derived from covert tapes. The approach of the judge to information contained in the interview of Silcock, namely an approach 'with considerable caution', as he called it, was, submits Mr Smith, the correct approach. In consequence of the above, in order to determine the offender's benefit, he took only as one starting point the figures given by Silcock. He also took as another starting point the evidence adduced contained in the document referred to at 4C of the transcript and entitled "Quantum". This Court has seen that document. He found there was a correspondence in the figures.[50]The judge also approached determination of benefit in a third way. On the basis of evidence heard at the trial relating to Levin's life-style and the uncontested figures from the Inland Revenue, he estimated an annual income of some £100,000 together with a property alleged to have been purchased by Levin. He described a similar correspondence between the figures and it is submitted by Mr Smith that the circularity of that approach was justified in order to test the figures given by Mr Silcock. We agree. The judge was therefore entitled, he argues and we agree, to determine the benefit figures as he did, even without the information supplied by the interviews with Silcock.[51]So far as the amount to be realised is concerned, Mr Smith points out that the learned judge expressly declined to rely on the statement of and the interviews with Ralph Powell and thus excluded the property at Leach Green Lane from his determination of the amount to be recovered. He did place reliance on the statements of Edwards in relation to New Wharf Bungalow and Janet Smith in relation to 53 Cambridge Tower, and used those two statements by way of confirmation or support for evidence that he had already heard in the trial.[52]His decisions in relation to the other properties depended principally on evidence heard during trial and/or on information derived from documents annexed to both the prosecution statement and the defendant's reply, which were not in dispute. As to New Wharf Bungalow, he made his decision in relation to that property principally on the evidence adduced at the trial. Throughout the whole period of the investigation, Levin and his family were the sole occupiers of that house and on two occasions in February and June 2000, when the house was searched, property belonging only to Levin was found there.[53]The judge also relied on a chart setting out the conveyancing history and use of the Levin family home at 169 Leveter in the transactions involving this property. That chart had been produced at trial, indeed Levin had been cross-examined on it. The judge found it significant too that Levin had claimed that a Jaguar motorcar registered in his name and driven solely by him, was owned by a man called Junelis, whose name appears from time the time in the conveyancing documents. It was proved during the trial that Levin had lied about that. The judge was satisfied, in conclusion, that Levin was trying to conceal the true ownership of this property. In our judgment, he was well placed to reach that conclusion, having observed the evidence over many weeks at trial.[54]A further property was involved, 204A Colney Hatch Lane valued £325,000. The judge based the determination in relation to that property on the proprietorship register, Levin being the proprietor from 17th August 1999 onwards, and upon the correspondence relating to its purchase between Levin and solicitors, Peter Brown & Co. The funds for that property were provided to a Latvian Company, a company run by Junelis again, and there was inferential evidence that it was used by the conspirators for the transfer of illicit funds.[55]The documents on which the judge relied in this context were documents that were actually annexed to the defendant's own reply. The third property was 280 Court Oak Road, valued at £115,000. That property was registered to a man called Ciuskys. He was arrested at New Wharf Bungalow on 8th June 2000. There was sufficient evidence that Ciuskys was a conspirator. The evidence at trial showed that conspirators or some of them had used that address which, as chance had it, was next door to Adderley's father's home. Adderley, of course, was convicted of the conspiracy on count 2.[56]The circumstances of the acquisition of this property as set out in the prosecutor's statement were not challenged and they involved the use of contact numbers used by Levin. The purported sale of this property to a man called Gamdjian took place after Levin's arrest. Gamdjian was a baker in Prague, and was the friend of Levin, and Levin let him use the address of the family home at 169 Leveter House for the purposes of the transaction. The judge rightly found it significant, argues Mr Smith, and we agree, that since the restraint orders were made, no representations had been made by anyone. He tested his finding by this rhetorical question: why should someone whose home is in Prague, with little or no established connection with the United Kingdom, want to buy a house in Birmingham which by coincidence happens to be next door to the family of one of the co-defendants of Mr Levin? That was a reference to Adderley.[57]A further property was 53 Cambridge Tower, valued at £45,000. During the trial evidence of that property occurred frequently. Rosa Fedeeva, the mistress of David Levin, lived there and as Levin admits in the defendant's reply, he too was frequently there. It was used by the conspirators on at least two occasions for the delivery of laundered money. The telephone number of that flat was used by Levin and other conspirators as a contact number.[58]The judge placed some reliance in regard to this property on the statement of Janet Smith by way of confirmation of what he had heard during trial, but not as to the ownership of the flat concerning which her statement is silent.[59]So far as regards the £6,300 cash found on a table at New Wharf at the time of Levin's a arrest, the judge relied only on the evidence given at trial by Sarah Griffiths and David Levin in respect of that property as he was entitled to do.[60]In our judgment, it is apparent from the foregoing that since the coming into force, in February 1995, of the 1993 amendments to the 1988 Act, there has been a seachange in the conduct of confiscation proceedings, which are now to be viewed, as Parliament intended through the prism of those amendments identified by Mr Smith. First, the burden of proof is now the civil burden. Second, the court may make far-reaching assumptions. Third, the court may require the defendant to provide information and may draw inferences from his failure to do so. Fourth, the court may rely both on evidence at trial and on any relevant information, properly obtained both before trial and thereafter, in order to determine a defendant's benefit and the amount to be recovered. These are, and are intended to be far-reaching provisions, with the aim of separating criminals from the proceeds of their crimes. The determining judge must, of course, examine both the evidence and the information obtained judicially and with great care as to its weight. But we are in no doubt that the sentencing judge here was proceeding well within the letter and the spirit of these provisions in proceeding as he did. He was fully entitled to consider all of the material provided to him, drawing from it such inferences and making such assumptions as were proper. Moreover, it was for him thereafter to attach such weight to the material as seemed proper.[61]Mr Levin had every opportunity, either by giving evidence on oath or by producing some convincing documentation, or statement to establish that the disputed properties were not his, or, alternatively, that it would be unjust to deprive him of their proceeds of sale because he had acquired them out of funds legitimately acquired. He neither gave evidence nor produced any documentation or statement that could be described as remotely convincing in that regard.[62]In our judgment, there is no merit in the appellant's submissions on the confiscation order, which pay scant regard to the law as, in our judgment, it has existed for some years, not least as to the civil burden of proof.[63]Finally we add this. In Phillips v The United Kingdom [2001] Crim LR 817, a case before the European Court of Human Rights involving the procedure under the 1994 Drugs Trafficking Act, it was held that the confiscation procedure under that Act did not involve the determination of a criminal charge but was properly regarded as part of the sentencing procedures of the court following conviction. Therefore Article 6(2) had no application.[64]In the present case, as under the 1994 Act, the assessment was carried out by a court with a judicial procedure, including public hearing, advanced disclosure of the prosecution case and the opportunity for the defendant to adduce documentary and oral evidence. Furthermore, the judge had a discretion not to apply the assumptions if he thought there was a risk of injustice. Mackintosh v The Lord Advocate [2003] 1 AC 1078, Privy Council and R v Benjafield & Ors [2003] 1 AC 1099 House of Lords are domestic decisions to like affect. The latter was a case of theft and deception, proceeded as the court did here, pursuant to a prosecutor's statement under section 71 of the Criminal Justice 1988.[65]In our judgment, there is no merit in these appeals and they are dismissed.[66]MR FORTSON: I rise only to raise one further matter. Clearly this is an important decision. I have formulated a question that I would invite my Lords to certify. May I read it out?[67]THE VICE PRESIDENT: Not too fast unless you have copy of it. Read it out.[68]MR FORTSON:
"Whether for the purposes of confiscation proceedings brought under the Criminal Justice Act 1988 or under the Drug Trafficking Act 1994, the court may make determinations on information or evidence that would otherwise be inadmissible by the rules of evidence, and at common-law or under statute applicable in criminal proceedings on a criminal charge?"
I pose that formally as opposed to the ordinary rules of criminal procedure which might be too open-ended.[69]THE VICE PRESIDENT: No, Mr Fortson, we decline to certify that question. I should perhaps say that the law is of course constantly changing in this area, and one has to bear in mind whether even if it is presently a point of law of public importance, it will be in a short time.[70]MR FORTSON: Indeed. May I thank the Court for sitting late.[71]THE VICE PRESIDENT: We did not do it for your convenience, we did for our own.

Cited in 3 later judgments