Ajibade, R. v

Neutral Citation Number: [2006] EWCA Crim 368 IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 2005/01799/B1 Royal Courts of Justice The Strand London WC2A 2LL Date: Monday, 6 February 2006 B e f o r e: LORD JUSTICE PILL MRS JUSTICE SWIFT DBE HIS HONOUR JUDGE RADFORD (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - R E G I N A - v - OLUREMI MORONKE AJIBADE - - - - - - - Computer Aided Transcription by Smith Bernal, 190 Fleet Street, London EC4 Telephone 020-7421 4040 (Official Shorthand Writers to the Court) - - - - - - - MR E REES QC appeared on behalf of THE APPELLANT MR D BARNARD appeared on behalf of THE CROWN MR D PENNY appeared as AMICUS - - - - - - - J U D G M E N T Monday, 6 February 2006 LORD JUSTICE PILL: 1. 2. 3. On 8 August 2003, at a magistrates' court, the appellant Oluremi Moronke Ajibade pleaded guilty to being knowingly concerned in the fraudulent evasion or attempted fraudulent evasion of the prohibition with respect to the importation of Class A controlled drugs. She was committed to the Crown Court for sentence. On 7 November 2003, in the Crown Court at Isleworth, before His Honour Judge Lowen, she was sentenced to six years' imprisonment and recommended for deportation. On 25 February 2004, before the same judge, a confiscation order was made under the Proceeds of Crime Act 2002 in the sum of £4,400 to be paid by 23 April 2004. A two- month consecutive prison sentence was imposed in default of payment. She appeals against sentence, limited to the confiscation order, by leave of the full court. The appellant arrived in the United Kingdom from Nigeria on 7 August 2003. When questioned by Customs officers, she said that she was in London to buy clothes. She was carrying about £4,500 in cash. She was found to be wearing a body corset containing 1.93 kilos of cocaine at 72% purity. The total street value of the drugs was considered to be just over £100,000. At the confiscation hearing, it was argued that the confiscation order should have regard to the value of the drugs in her possession, which were put for this purpose at £44,677, and should also include the £4,500 in her possession (less £100 which had been allowed to her as expenses whilst she was on remand). The judge heard evidence, including evidence from the appellant. Her contention was that the money found in her possession was nothing to do with the drugs offence; it was money which had been loaned to her. She sought to rely on the provision of section 10 of the 2002 Act which, having referred to assumptions which are to be made, includes at subsection (6): "But the court must not make a required assumption in relation to particular property or expenditure if -- (a) (b) the assumption is shown to be incorrect, or there would be a serious risk of injustice if the assumption were made." 4. Having considered the facts, the judge stated: "That being so, I do not think it is right to make the assumptions. I think there would be injustice to the women who may, in fact, own this money in Nigeria. On the balance of probability, I think that the assumptions would be incorrect. In those circumstances I do not make a confiscation order in relation to these sums." The appellant's evidence had been that the loan was from a woman's co-operative based at her local church in Nigeria and was to allow her to purchase clothes, which would be sold in Nigeria. 5. The judge concluded, however, that the sum of £44,677 was benefit. He said: "One has to exclude the £4,500 or £4,400 and so the benefit figure that I assess is £44,677, that being the wholesale value of the cocaine at the time of importation. [That was substantially less than the street value about which there was evidence.] Realisable assets, well there is only the cash money that the defendant had in her possession, which was seized at the time of her arrest. A sum which, for the reasons which have been referred to is free property and therefore realisable, in the hands of the defendant." 6. Unfortunately, the judge's attention was not drawn to R v Dore [1997] 2 Cr App R(S) 152. None of counsel now appearing, Mr Rees QC on behalf of the appellant, Mr Barnard (very recently instructed) for the respondent, and Mr Penny as advocate to the court, was present at the time and thus we have no information as to why the judge was not reminded of the case. Mr Rees first identified the point. It is dealt with by Mr Penny in his skeleton argument as follows: "5.1.4 In Dore this court was concerned with an assumption made under the provisions of the Drug Trafficking Act 1994, specifically that drugs found in an offender's possession had been bought with the proceeds of drug trafficking. It was submitted on behalf of the appellant that the inclusion of both the expenditure figure for the purchase of the drugs and the value of the drugs forfeited in calculating the proceeds of drug trafficking created a double jeopardy. Whilst rejecting the submission made on behalf of the appellant, principally on the basis that the judge had not included the value of the drugs as was suggested, the Court of Appeal went on to consider the case of Thacker (1995) 16 Cr App R(S) 461 in which the question had arisen whether drugs which had been seized by Customs could be described as property held by the defendant. It should be noted that this question had arisen in the context of whether drugs could form part of the realisable property of the defendant. At page 158, Lord Bingham CJ stated: 'It appears that seizure by the Customs and Excise under the Customs and Excise Management Act 1979 has the effect of forfeiting the drugs so that they are no longer the property of the former owner: see [1995] Crim LR 89 at 90-91. But even if the drugs had still been held by the defendant within the meaning of section 62(5)(a) of the 1994 Act -- and this could well be the position where it was the police and not the Customs and Excise who seized the drugs -- so that the property would on its face be realisable property within the meaning of section 6(2)(a) of the 1994 Act, the drugs would still be without value as realisable property. That is because, by virtue of section 7(1) of the 1994 Act to which we have already made reference, the value of the property is to be taken as its market value and the market value must be the market value if the property is sold lawfully. In the case of drugs, it is obvious that the drugs cannot be sold lawfully and therefore they have no market value.'" 7. 8. It is not suggested that the provisions of the 2002 Act in any way affect the principle there stated, which, it is agreed, also apply to a calculation of benefit. That being so, on the judge's findings, to which we have referred, a confiscation order should not have been made. Mr Barnard has underlined that his concession is based on the fact that in this case the appellant was a courier. He submits that different considerations would have applied if the appellant had purchased the drugs herself or had incurred expenditure in purchasing them. The fact that for the purpose of the first exercise the drugs did not have value would not prevent, he submits (and there is authority for this), the court in some circumstances having regard to the assets which are found to be realisable property of the appellant. That being so, the appeal is allowed and the confiscation order is quashed. It is most unfortunate that very considerable costs have been incurred in this case. It has taken a long time for the relevant point to be identified. The court has before it today three advocates. It seems to us that this question should have been resolved some time ago, and the matter could have been dealt with far more cheaply and expeditiously. We do not conduct any further enquiry. What we have said does not involve any criticism of counsel who now appear. We repeat that we are indebted to Mr Penny for his skeleton argument. ________________________