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Case Note and Analysis
Dr. Charanjit Singh'
Evidence and Variation of Confiscation Orders:
R v O'Flaherty (CarlAnthony) (Court of Appeal
Criminal Division, 29th of October 2018)
Judge: Green L, Goose ] and Judge Mark Brown
1 University of Westminster, London, United Kingdom of Great Britain and Northern Ireland, E-mail: doctor.csinghagmail.com
Abstract:
The appellant (O'Flaherty) (0) was appealing against two confiscation orders. In short, this case demonstrates
that a judge can increase the value of a confiscation order made pursuant to s. 22 of the Proceeds of Crime Act
2002 (POCA) where adequate evidence is presented. The increase resulted from the fact that the Crown had
discovered a further asset (property) that could be realized. 0 contended that a third party had an interest in
the property and the value of the confiscation orders should not be increased. After questioning 0 and the third
party the judge concluded that O's claim was not made out and the judge had not erred.
Keywords: criminal procedure and evidence, confiscation orders, variation, money laundering, judicial duties
and proceeds of crime
DOI: 10.1515/ice-2018-0004
Facts
The appellant (O'Flaherty, from here 0) was appealing against the amount in two confiscation orders.' In 2010
0 had pleaded guilty to possession of criminal property and possession with intent to supply drugs contrary
to the Misuse of Drugs Act 1971. Twenty small bags of cannabis had been recovered following the search of his
vehicle. 0 was sentenced to a custodial sentence of fifty weeks, suspended for twelve months. He was ordered
to pay £5,135 pursuant to a confiscation order under s. 6(5) of POCA 2002.
In 2013 0 was convicted of a conspiracy to commit a money laundering offence. In this instance 0 was
sentenced to an eighteen-month custodial sentence and ordered to pay E871 pursuant to another confiscation
order again under POCA 2002.
In both instances the benefit that 0 had received exceeded the amount recoverable pursuant to each con-
fiscation order. 0 had satisfied both orders. Subsequently, the Crown had discovered another asset that could
be realized in the form of a property owned by 0 and registered without encumbrance in his sole name at the
Land Registry.
An application to reconsider the value of each confiscation order was made under s. 22 of the POCA 2002.2
0 contended that the property was purchased following a loan of £30,000 from his employer (A) on the
premise that A would in return for the same receive a sum of E40,000. A contended, in his witness statement,
that he had not registered his interest at the Land Registry. There was no evidence of the loan or the terms
contended. Nor was there any evidence of the transaction ever having occurred. Finally, there was no evidence
of the fact that A had ever employed 0 in any capacity i. e. there was a lack of records at Her Majesty's Revenue
and Customs (HMRC) therefore there was no evidence to support this. However, there was evidence of a sum
having been received by 0 in his bank account - information that was gaged from a mobile banking application
on O's mobile telephone.
Given the facts as set out the judge proceeded to question both 0 and A; concluding that 0 had failed to
prove to the requisite evidential standard namely 'on the balance of probabilities'. There was a lack of evidence
to prove A had lent 0 the money to purchase the property and therefore that A had an interest in it to the value
of E40,000. The judge stated that 0 had not on the evidence; initially sought a mortgage to fund the purchase
Dr. Charanjit Singh is the corresponding author.
© 2018 Walter de Gruyter GmbH, Berlin/Boston.
1
DE GRUYTER
International Commentary on Evidence. 2oi8; 2oi80004](ViewImageLocal?handle=hein.journals/icmevid15&div=1&collection=&method=preview&ext=.png&size=3)
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