No: 01/2803/X5
Neutral Citation Number: [2001] EWCA Crim 2825
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Wednesday 5th December 2001
B E F O R E :

LORD JUSTICE LATHAM

MR JUSTICE PITCHFORD

and

HIS HONOUR JUDGE TILLING
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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KARL CHRISTOPHER JOHANNES

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040   Fax No: 020 7831 8838
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MR ADF WILCKEN appeared on behalf of the APPELLANT
MR J DENNISON appeared on behalf of the CROWN

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JUDGMENT

1.	MR JUSTICE PITCHFORD: On 26th March 2001, at the Crown Court at Isleworth the appellant appeared to be sentenced by His Honour Judge Crocker for offences contrary to the Misuse of Drugs Act 1971 and for the imposition of a drug trafficking confiscation order. He had pleaded guilty on 16th June 2000 to, count 1, possession of ecstasy with intent to supply, count 2, possession of amphetamine with intent to supply, count 3, possession of cannabis resin with intent to supply, and count 4, possession of cannabis with intent to supply. He was sentenced to five-and-a-half years imprisonment upon count 1, twelve months imprisonment upon count 2, four years imprisonment upon counts 3 and 4, all those sentences to be served concurrently. He was also committed for sentence in respect of two further offences of being concerned in the supply of ecstasy and supplying cannabis for which no separate penalty was imposed, the facts of those matters apparently having arisen in connection with the same possessions alleged in the indictment.
2.	The sentencing judge proceeded to make an order under section 2 Drug Trafficking Act 1994. He found that the appellant had benefitted in the sum of £102,540 and ordered confiscation in the sum of £96,039 under section 5(3)(a) of the Act. The appellant, with leave of the single judge, appeals against the confiscation order only.
3.	The grounds upon which the appeal is advanced are that the findings made to support the confiscation order appear to be inconsistent with the facts found in a Newton hearing held on the same and preceding days.
4.	The appellant was an employee of the fashion retailer River Island at their head office in west London. He was in charge and sole occupant of the printing office. On 16th March 2000 his cabinet was searched and inside was found a substantial quantity of the drugs ecstasy, amphetamine, cannabis resin and cannabis. The appellant made confessions and pleaded guilty at the earliest opportunity to the offences with which he was charged. It was at all times his case that he was a minder of the drugs for another; that his benefit was confined to payment for the service of minding the drugs at the rate of £10 per kilogramme. At the conclusion of the Newton hearing, the sentencing judge said:
“Karl Johannes pleaded guilty at the earliest opportunity to four counts of possessing Class A and Class B drugs with intent to supply.
Found at his place of work, in a locker were 3,659 ecstasy tablets, 4.765 kilos of amphetamine powder (although 72.4 grammes at 100% purity), 22.74 kilos of cannabis resin and 14.1 kilos of cannabis.
I have, over the past few days been conducting a 'Newton' hearing and a Drug Trafficking Act investigation concerning the role which he played.
I have heard evidence of his arrest and interview from police officers and from the defendant himself on the 'Newton' hearing and from Detective Constable Brown, the defendant, his wife and daughter so far as the DTA investigation is concerned.
So far as the 'Newton' hearing is concerned, I remind myself that the burden of proof and standard of proof lies fairly and squarely on the prosecution. The defendant maintained both in interview and before me that he was a custodian of the drugs, that he had been looking after them for a good friend in order to get some extra money for his forthcoming wedding, and this was over a period of some six to eight months.
He was paid £10 per kilo, had received payments of £50, £400 and £700 and was owed a further £600, total, on his account, £1,750.
When required, he would cut up pieces of cannabis, using the scales which were found with the drugs, and then placed the smaller amount of cannabis in his car for collection by others. He also drew some of the ecstasy tablets out of the bag.
I am satisfied so that I am sure that he was not a retail seller of the drugs to addicts, but I am equally satisfied that he was a trusted participating custodian or 'minder' of the drugs that were seized which were valued at a wholesale price at £99,000. He had also 'minded' other consignments for the amounts of money he had received, possibly 150 kilos.” 
5.	Thus, the learned judge reached a finding so that he was sure that the appellant as a minder had no financial interest in the drugs themselves and that his benefit was confined to payment for the minding service. The court was required under section 2 Drug Trafficking Act 1994 to determine whether and in what sum the appellant had benefitted from drug trafficking. The standard of proof applied by section 2(8) was the civil standard. In the course of reaching its determination, however, the court was required to apply a series of rebuttable assumptions. Of particular relevance to this case is section 4(3)(a)(ii) which reads:
“The required assumptions are--
(a) that any property appearing to the court--
(ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him,
was received by him at the earliest time at which he appears to the court to have held it, as a payment or a reward in connection with drug trafficking carried on by him...” 
6.	The court was not, however, bound to make the assumption. Section 4(4) provides:
“The court shall not make any required assumption in relation to any particular property or expenditure if--
(a) that assumption is shown to be incorrect in the defendant's case; or (b) the court is satisfied that there would be a serious risk of injustice in the defendant's case if the assumption were to be made;
and where, by virtue of this subsection, the court does not make one or more of the required assumptions, it shall state its reasons.” 
7.	The prosecutor's statement valued the drugs found in the appellant's possession at £99,065 on a wholesale basis and drew the judge's attention to the provisions of section 4 to which we have just referred. In his response to the prosecutor's statement, Mr Anthony Wilcken, for whose care in the presentation of the appeal we are grateful, drew attention at paragraph 5.4.3 to the issue whether, in the circumstances of the appellant's case, the receipt of the drugs amounted to a benefit in the sum of their value. In the course of his findings, His Honour Judge Crocker did apply section 4(4) to a Barclays instant savings account whose balance had remained static throughout the period with which he was concerned. However, he went on to say:
“Of course in all these sort of cases the wholesale cost of the drugs, more often than not, are the largest amount which has to be considered with the value of the drugs at wholesale prices totalling £99,065. Applying the assumptions and my findings of fact, I include them in the proceeds, so that I find that the total proceeds of £2,175 in cash, £1,300 in the Barclays account and £99,065 so far as the drugs are concerned. The total on that is £102,540.” 
8.	The learned judge does not appear to have considered the question whether, in the light of his earlier finding to the criminal standard, the assumption that the drugs represented benefit had been shown to be incorrect and therefore displaced. Had he done so, it seems to us he would have found that the assumption was displaced since the second finding by a logical imperative, must have followed the first.
9.	This is a problem which arose in the case of J [2001] 1 Cr App R (S) 273 in which the judgment of the Court was given by the Lord Chief Justice, Lord Woolf. This report was not available to the sentencing court. In a passage which we take from page 276 of the report the Lord Chief Justice said this:
“Normally, if someone is found in possession of drugs, the inference is that they have acquired them and that they have done so by paying for them. In the drugs trade there is no credit. Those involved with drugs want cash. In those circumstances it seems to us that the inference can be drawn that, in the absence of any evidence to the contrary, drugs found in the possession of someone shown to be dealing in drugs have been paid for.
Support for that approach is to be found in the judgment of Tuckey LJ in Paul Douglas Berry [2000] 1 Cr App R (S) 352. The facts in that case are different from those here, but that is authority for the proposition that it is a legitimate inference which can normally be drawn from the possession of drugs. However, this case differs from the ordinary case because the judge felt it right to indicate in his sentencing remarks that he was prepared to draw an inference that the appellant had been “entrusted” with the drugs in question. In those circumstances the question arises, was it proper to draw the inference that they had been paid for? We do not think it was proper to do that for two reasons: first, the expression “entrusted” implies that the property belongs to someone else; and secondly, the appellant may have been affected by what the judge said in his sentencing remarks in deciding what course to adopt in relation to the confiscation proceedings.” 
10.	Accordingly, it is our view that the appellant's argument is well founded. The judge's order will be quashed. In substitution the Court determines the benefit received at £3,475 and orders that the amount to be recovered shall be £3,475. That sum shall be paid within 28 days, subject to any further application on the appellant's behalf, with three months' imprisonment in default.