Barnham, R v [2005] EWCA Crim 1049 (28 April 2005)

Barnham, R v [2005] EWCA Crim 1049 (28 April 2005)

Once the prosecution has established benefit, the burden shifts to the defendant to prove his realisable assets; the judge must avoid serious risk of injustice but is not required to demand a prima facie case of hidden assets from the prosecution; the appellant failed to discharge the burden of proof, and the judge was entitled to make the confiscation order subject to correction for double-counting.

Citation
[2005] EWCA Crim 1049
Parties
Prosecution: Crown; Appellant/defendant: John Thomas Barnham
Jurisdiction
England and Wales
Judgment Date
28 April 2005
Procedural Posture
Criminal Appeal / Appeal Against Confiscation Order After Conviction and Sentence
Outcome
Appeal allowed in part
Legal Topics
Confiscation Proceedings, Drug Trafficking, Burden of Proof, Article 6 ECHR, Hidden Assets
Criminal Law Proceeds of Crime Confiscation Proceedings Drug Trafficking Burden of Proof Article 6 ECHR Hidden Assets

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Parties

Crown

Prosecution

John Thomas Barnham

Appellant/defendant

Procedural Posture

Criminal Appeal / Appeal Against Confiscation Order After Conviction and Sentence

Legal Issues

  1. 1 Whether the confiscation order gave rise to a serious risk of injustice to the appellant
  2. 2 Correct approach to determining realisable assets at the second stage of confiscation proceedings
  3. 3 Impact of Article 6(1) ECHR on confiscation proceedings

Ratio Decidendi

Once the prosecution has established benefit, the burden shifts to the defendant to prove his realisable assets; the judge must avoid serious risk of injustice but is not required to demand a prima facie case of hidden assets from the prosecution; the appellant failed to discharge the burden of proof, and the judge was entitled to make the confiscation order subject to correction for double-counting.

Court Disposition

Appeal allowed in part

Orders

  • Confiscation order reduced from £1,525,615 to £1,460,615