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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> McMillan-Smith, R. v  EWCA Crim 732 (08 April 2009)
Cite as:  EWCA Crim 732
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the Crown Court at York sitting in Bradford
HHJ JAMES SPENCER QC
London, WC2A 2LL
B e f o r e :
MRS JUSTICE COX DBE
SIR CHRISTOPHER HOLLAND
|The Attorney General|
|Geoffrey Paul McMillan-Smith|
|- and -|
|Geoffrey Paul McMillan-Smith|
(instructed by the Treasury Solicitors) for the Solicitor General on behalf of the Attorney-General
and for the Crown (instructed by CPS)
Mr Jonathan Fisher QC and Mr B Knight (instructed by Levys Solicitors) for Geoffrey McMillan-Smith
Hearing dates: 3 July 2008, 3 March 2009, 6 April 2009
Crown Copyright ©
LORD JUSTICE HOOPER:
"There are hidden assets, and I base that on what I have read in these appendices to Mr Whittleston's report.
When the defendant was imprisoned in Spain in 1996 [for drug offences] he entered into correspondence with his wife, with his sister and also with his in-laws, the McMillans, and certain of those exchanges of correspondence are exhibited in an appendix to this report. It is quite clear that the defendant's way of life when he was dealing in cannabis in Spain was to set aside sums, to secrete them, so that the authorities would not become aware of them. And it was quite clear that those in correspondence with him knew that. And the purpose was obvious. If he needed to, he could always resort to those sums when times were hard.
And that kind of prudence I am convinced will have continued during his benefiting from this production of cannabis up to 2005 when he was arrested, and IO am strengthened in that conclusion by the fact that his actual share of the £1.5 million, 32.5% of it if the figures we have seen in these documents is right, would have been very close to half a million pounds -32.5% of £1.5 million is just less than £500,000."
"So there is a tremendous shortfall between what he has actually had and what was able to be identified."
"37. We stress that the scheme of the Act requires the court to perform two distinct and discrete tasks. First, to determine the benefit. Secondly, to determine the amount that might be realised at the time the order is made, which may be very different. Further, the amount that might be realised may be quite unrelated to the identifiable proceeds of the offence, eg a lottery win, inheritance, or other lawfully acquired property. In the end, the task of the court at the second stage is to determine the amount 'appearing to the court' to be the amount that might be realised. But once the benefit has been proved, it is permissible and ought normally to be the approach of the court, to conclude that the benefit remains available until the defendant proves otherwise ... ."
i) The benefit figure of £1,971,923.83 is confirmed.
ii) The realisable assets are £215,000.
iii) The confiscation order will be in the amount of £215,000 with three years in default and six months to pay.