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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 >> Ernest, R v [2014] EWCA Crim 1312 (04 July 2014) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/1312.html Cite as: [2014] EWCA Crim 1312

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/07/2014

Mr Justice Lewis :

This is the judgment of the court.

INTRODUCTION

1. This is an appeal against a confiscation order made by the Crown Court at Kingston-Upon-Thames on 20 December 2013 under section 6 of the Proceeds of Crime Act 2002 ("2002 Act") following the conviction of the Appellant, Mr Sam Ernest, for 17 offences of fraud. That order required the Appellant to pay the sum of £308, 380.29 within 6 months with a default term of 3 years. The order records that the court had decided that the Appellant had a criminal lifestyle and had obtained a benefit, valued at £308,380.29 as a result of his general criminal conduct. The order records that the available amount, that is the amount that may be realised, was £308,380.29.
2. The Appellant contends that the judge erred in calculating the amount of benefit. First, he contends that, in part, he was operating a legitimate business providing tickets and related services for entertainment events. He contends that monies received for the goods and services provided as part of that business was not obtained as a result of his general criminal conduct and should not be included within the amount of the benefit. Secondly, the Appellant contends that the Crown Court erred in relying on a specialised index showing the annual expenditure necessary to maintain an acceptable standard of living in order to conclude that the Appellant had additionally incurred expenditure of £98,400 (£16,400 a year for six years) which should be included in the calculation of the value of the benefit. Further, the Appellant contends that the judge erred in concluding that he had assets which were available to pay the sum of £308,380.29. He contends, in effect, that the judge failed to adopt a just and proportionate approach to that assessment and did not address the details of the evidence.

FACTS

3. The Appellant is a citizen of the United States of America who is now 47 years of age. He came to the United Kingdom in late 2005 on a six month visa. He did not leave the United Kingdom after the expiry of that visa but remained here illegally.

The Offences

4. On 4 December 2012 at Kingston-upon-Thames Crown Court, the Appellant pleaded guilty to 17 counts of fraud, contrary to section 1 of the Fraud Act 2006, and one count of possessing an identity document with an improper intention contrary to section 4 of the Identity Documents Act 2010. He was sentenced to four years' imprisonment on each of the 17 counts of fraud to be served concurrently and six months imprisonment for the identity document offence to be served consecutively to the four years' imprisonment for the other offences. Leave to appeal against sentence was refused by this Court on 12 October 2013. The Court described the nature of the frauds in the following terms:

"4.Throughout the period covered by the indictment, from February 2008 to May 2012 the applicant, an American citizen who has lived in the UK since 2005, held himself out falsely as an events organiser. He would cultivate personal relationships with his victims, make extravagant claims about his background and contacts and would tell them that he would provide tickets (usually to popular high profile events, such as the London Olympics, Wimbledon, Champions League matches, rock concerts, film festivals, award ceremonies and meet-and-greet events with celebrities, such as David Beckham and Bruce Springsteen) in return for money. The applicant sometimes provided people with the tickets they had paid for, but on many occasions failed to do so, often promising right up to the last minute that the tickets would materialise. When they did not, he would often claim that the event had been cancelled at the last minute. Where tickets were not provided he would usually promise refunds. On occasion refunds, whether in part of in whole, were given, but on others they were not. In total he defrauded his victims of just over £48,000.

5. The victims were in the main either wealthy people or organisations who could afford to pay substantial sums of money for prestige events, or men whom he had befriended or women with whom he entered into relationships. On some occasions they successfully obtained tickets to events but at other times they were induced to pay for other items, such as tickets, flights, hotels and vouchers, which never appeared. The applicant would use such people to recommend him to other potential victims and to encourage them to place orders for tickets with him. Inevitably, this led to a lot of bad feeling when the tickets did not appear. One woman with whom he was having a relationship got a party of 18 people together, some from the USA, to attend events at the London Olympics. She paid almost £4,000 to the applicant. The applicant continued to promise that the tickets would arrive right up until after her friends had arrived in the UK.

6. There was another incident where he successfully bid £8,250 at a charity auction for a hospitality package that included Olympics tickets, but which he never paid for. Nevertheless, he sold on the various component parts of the package for £3,500.

7. The applicant's activities had first been reported to the police in 2009, but they took no action at that stage. It was not until 2012, when a special team of police officers were investigating fraud associated with tickets for the London Olympics, that attention was focused on his activities. On discovering that the police wished to speak to him, the applicant prevaricated and would not agree to attend for interview. No doubt this was in part because he had entered the UK on a six month tourist visa in 2005 and was an over-stayer. His passport had expired in 2010. He therefore attempted to avoid detection by contacting his twin brother, Eli, in the USA. He received his brother's passport through the post with a view to deceiving the UK authorities as to his identity. That gave rise to the identity document offence.

8. The police went to the hotel where the applicant was staying and, after a struggle when he attempted to escape, he gave his brother's name and was interviewed in that name. He made no comment in interview and it was only at his first appearance at the Magistrates' Court that he gave his real name.

9. The applicant had no previous convictions in the UK. He had a previous criminal record in the USA, having been arrested in 1990 for a forged passport offence and in 1999 and 2001 for larceny offences which resulted in a conviction."

The Confiscation Proceedings

5. Following conviction, the Crown Court proceeded to consider making a confiscation order under section 6 of the 2002 Act. It was conceded that the Appellant had a criminal lifestyle as defined by 75 of the 2002 Act. The task for the Crown Court, therefore, was to determine if he had benefitted from his general criminal conduct and, if so, what was the value of that benefit. As the Appellant had a criminal lifestyle, the Crown were entitled to make certain assumptions in calculating any benefit to the Appellant in accordance with section 10 of the 2002 Act.
6. The Crown Court received detailed information from a Detective Constable Knowles. He considered the benefit, essentially, in two parts. First, there was the amount of money transferred to the Defendant after the relevant date, agreed in this case to be 29 August 2006 (that is, 6 years before the Appellant was charged: see section 10(8) and 85 of the 2002 Act). These were submitted to be the amounts in bank accounts which were controlled and used by the Appellant
7. These included bank accounts in the name of Barbara Howell. DC Knowles calculated the amount of money in these accounts paid in by known victims of the Appellant together with all of the unexplained monies in the accounts, that is all the monies deposited during the relevant period other than those which represented Barbara Howell's legitimate earnings and funds. This figure came to £200,595.04. This figure included £6,300 specifically identified as being monies paid into that account by persons identified as victims of the Appellant's activities. There was also a bank account in the name of J Bailey Morgan. That, too, was controlled by the Appellant. There was an amount of £9,385.25 in that account which include payments made by other victims of the Appellant's activities and other unexplained items. The prosecution therefore invited the Crown Court to assume, pursuant to section 10(2) of the 2002 Act, that a total of £209,980.29 contained in all these bank accounts was obtained by the Appellant as a result of his general criminal conduct.
8. The second part of the benefit concerned expenditure incurred by the Appellant over the relevant six year period. Section 10(4) of the 2002 Act permits the Court to assume that expenditure incurred by the Appellant after the relevant date, here 29 August 2006, was met from property obtained by the Appellant as a result of his general criminal conduct. The prosecution contended that the Appellant would have incurred expenditure in maintaining himself during that period. They did not seek to identify specific amounts of expenditure. Rather the prosecution submitted that it may be appropriate for the court to use a cost of living index as an appropriate method of calculating expenditure incurred by the Defendant. The prosecution accepted that the Appellant had been supported to a greater or lesser degree by a series of girlfriends. The prosecution therefore did not propose using the cost of living indices prepared by the Office of National Statistics, as that was considered to be unfair as it did not take account of the fact that some, at least, of the Appellant's living expenses were being met by others. Rather, the prosecution proposed that the Crown Court use an index produced by the Joseph Rowntree Foundation, a social policy research and development charity, which gave a figure for what was deemed the expenditure necessary to maintain the minimum acceptable standard of living. That figure was £16,400 a year. The prosecution proposed using that figure for each of the six years of the relevant period. That provided a figure of £98,400 which the prosecution submitted should be added to the sum in the bank accounts (the £209,980.29) to give a total figure for the benefit of £308,380.29.
9. In the statement prepared by DC Knowles for the Crown Court, he noted in relation to the proposed use of the figures from the Joseph Rowntree index that he:

"accepted that defence counsel may wish to challenge this approach as an addition of other figures with regard to criminal benefit…. Without any material from the defendant in his …response to assist in the determination process, the defendant and his counsel are invited by rebuttal to demonstrate why this approach should not be taken."

10. At the confiscation hearing, DC Knowles gave evidence and his statement was adduced. Copies of the entries in the bank accounts were produced. The Defendant, himself, however did not produce any record of any of the transactions that he had undertaken as part of his activities. He produced no business records or tax records. The Defendant gave oral evidence but the judge found that he was dishonest and had constantly lied and done so on oath.
11. The judge applied the statutory assumptions. He assumed that the amount of £209,980.29 in the bank accounts were monies obtained by the Appellant as a result of his criminal conduct. He accepted that it was appropriate to take a figure, based on the Joseph Rowntree index, as a figure for expenditure. He considered that it was correct to use the statutory assumptions provided for in section 10 of the 2002 Act and those assumptions were not shown to be wrong and there would be no serious injustice in making those assumptions. He rejected the evidence of the Appellant that he had no assets available. He therefore fixed the recoverable amount as the amount of the benefit, that is £308,980.29. He ordered that that the Appellant pay that sum within 6 months.

THE STATUTORY FRAMEWORK

12. Before dealing with the three grounds of challenge, it is appropriate to identify the broad structure of the 2002 Act and the specific relevant statutory provisions applicable in the present case. In essence, the 2002 Act provides for the court to identify the benefit derived by a person from his criminal conduct, and then to order that he pays an amount, called the recoverable amount, which is equal to the benefit obtained. If the available amount – that is the amount that may be realised by the defendant - is less than the recoverable amount, the available amount is to be the recoverable amount.. The approach to be adopted, and the importance of focusing on the statutory language and asking the relevant questions in the correct order, is emphasised in the judgment of the House of Lords in R v May [2008] 1 AC 1028, at paragraphs 15 and 48 in particular, and more recently by the Supreme Court in R v Ahmad, R v Fields [2014] 3 WLR 23 at paragraphs 4 to 6.
13. The starting point is subsections 6(4) and (5) of the 2002 Act which provides as follows:

"(4) The court must proceed as follows—

(a) it must decide whether the defendant has a criminal lifestyle;

(b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct;

(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct."

"(5) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must—

(a) decide the recoverable amount, and

(b) make an order (a confiscation order) requiring him to pay that amount."

14. Section 6(7) of the 2002 Act provides that the court must decide any question arising under section 6(4) on the balance of probabilities.
15. In the present case, the Crown Court decided that the Appellant had a criminal lifestyle as defined by section 75 of the 2002 Act. That finding is not challenged. The task for the Crown Court, therefore, was to identify whether he had benefitted from his general criminal conduct. Section 76(1) of the 202 Act defines criminal conduct as conduct which constitutes an offence in England and Wales or would do so if it occurred there. Section 76(2) defines the general criminal conduct of a defendant as

"all his criminal conduct, and it is immaterial—

(a) whether conduct occurred before or after the passing of this Act;

(b) whether property constituting a benefit from conduct was obtained before or after the passing of this Act."

16. Section 76(4) of the 2002 Act provides that:

"A person benefits from conduct if he obtains property as a result of or in connection with the conduct."

17. Section 10 of the 2002 Act provides that certain assumptions must made if , as here, the court decides that the defendant has a criminal lifestyle. Section 10 provides, so far as material, that:

"10 Assumptions to be made in case of criminal lifestyle

(1) If the court decides under section 6 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of—

(a) deciding whether he has benefited from his general criminal conduct, and

(b) deciding his benefit from the conduct.

(2) The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him—

(a) as a result of his general criminal conduct, and

(b) at the earliest time he appears to have held it.

(3) The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him—

(a) as a result of his general criminal conduct, and

(b) at the earliest time he appears to have held it.

(4) The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct.

(5) The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it.

(6) But the court must not make a required assumption in relation to particular property or expenditure if—

(a) the assumption is shown to be incorrect, or

(b) there would be a serious risk of injustice if the assumption were made.

(7) If the court does not make one or more of the required assumptions it must state its reasons.

(8) The relevant day is the first day of the period of six years ending with—

(a) the day when proceedings for the offence concerned were started against the defendant, or

(b) if there are two or more offences and proceedings for them were started on different days, the earliest of those days."

18. Once the amount of benefit obtained by the defendant has been identified, the court must then determine the recoverable amount, that is the amount that the defendant will be ordered to pay. Section 7(1) and (2) of the 2002 Act provides that:

"(1) The recoverable amount for the purposes of section 6 is an amount equal to the defendant's benefit from the conduct concerned.

(2) But if the defendant shows that the available amount is less than that benefit the recoverable amount is—

(a) the available, or

(b) a nominal amount, if the available amount is nil."

19. The available amount is defined in section 9 of the 2002 Act. In essence it is is the aggregate of the total value of all the free property held by the defendant (less certain obligations having priority) and any tainted gifts, that is gifts made by a defendant after the relevant day.
20. Two further observations need to be made. First, the burden is on the prosecution to demonstrate the amount of the benefit obtained as a result of the defendant's general criminal conduct. In determining that issue, however, the Crown Court must make the statutory assumptions in section 10 of the 2002 where the defendant has a criminal lifestyle unless the assumption is shown to be incorrect or there would be a serious risk of injustice if the assumption were made.
21. Secondly, the burden is on the defendant to show that the available amount is less than the benefit and that the lower available amount should therefore be the recoverable amount.

THE CALCULATION OF BENEFIT AND THE STATUTORY ASSUMPTIONS

The Benefit Figure – The Monies in the Two Bank Accounts

22. As indicated above, the judge concluded that the amount of the benefit comprised two elements. First, it comprised certain amounts paid into the bank accounts after the relevant date. The bank accounts were under the control of the Appellant and were used by him to receive payments of money.
23. In our judgment, the judge was correct, making the statutory assumption set out in section 10(2) of the 2002 Act, to treat the sum of £209,280.29 transferred into the bank accounts as obtained as the result of the Appellant's general criminal conduct. The monies included monies received from persons who had paid money to the Appellant (whether in connection with the 17 offences to which he pleaded guilty or other alleged offences) and other unexplained sums, but excluding the amounts that represented the legitimate funds of the account holder.
24. Mr Rooke on behalf of the Appellant accepts that, prima facie, the sums in the bank accounts represent part of the benefit. Mr Rooke, however, submits that in relation to some of the transactions, the Appellant did provide the tickets or the services that he promised, or provided alternatives, or on occasions made partial refunds. He submitted that these payments were genuine transactions, part of the legitimate business activities of the Appellant, and, to that extent, he submits that it would be incorrect to assume that money received for those transactions was obtained as a result of the Appellant's general criminal conduct or to do so would give rise to a serious risk of injustice. Further, he submits that the figure should be reduced by deducting the expenses incurred as part of those legitimate transactions.
25. There are two separate difficulties with Mr Rooke's submissions. First, the Appellant has not produced any evidence to demonstrate what, if any, amounts are related to what he describes as legitimate business transactions. He has produced no records of income or expenditure. He has produced no accountant's report indicating what elements of the monies in the accounts are said to be referable to specific, legitimate business transactions. In the absence of such evidence, there is no basis on which it could be shown that the assumption that the monies in the bank accounts were obtained as a result of the Appellant's general criminal conduct is incorrect. Nor, in our judgment, would there be a serious risk of injustice to the Appellant in making that assumption. The fact that some unidentified proportion of that money might conceivably be referable to some specific (but unidentified) business transaction does not render the making of the assumption incorrect and does not does give rise to a risk of injustice, still less a serious risk of injustice. Any difficulties in quantifying what, if any, proportion of the money might be referable to specific transactions unconnected with the Appellant's general criminal conduct results from the fact that the Appellant has failed to keep, or failed to produce, any records or any other evidence of the purported legitimate business transactions.
26. There is a second, separate reason why, in our judgment, the Appellant's submission on this issue fails. The situation here is one where all the relevant activities of the Appellant were fraudulent. This is not a case where the Appellant was involved in a legitimate business of providing entertainment service and, in the course of that business, committed a number of offences. Rather, the entire scope of the Appellant's activities were fraudulent. As the learned judge found in the confiscation proceedings, the Appellant was a "career fraudster". As the Court of Appeal noted in its judgment refusing leave to appeal against sentence, there were occasions when persons did successfully obtain tickets to events but at other times they were induced to pay for tickets, flights, hotels and vouchers which never appeared. The Appellant would encourage people to recommend him to other potential victims and encourage them to place orders for tickets with him but the tickets often would not materialise. The Appellant had an interest in ensuring that some people obtained tickets, or some services, in order to maintain the whole fraudulent business. This is not a case where there was a legitimate business of providing entertainment with occasional defaults. This was a case where the Appellant's activities were part of a pattern of fraudulent activity.
27. In those circumstances, it is not shown that the assumption that the monies in the bank accounts were obtained as a result of the Appellant's general criminal conduct was incorrect or that making such an assumption would lead to a serious risk of injustice. It is not the case that certain transactions were part of a legitimate business and so income generated from those activities should be left out of account in determining the value of the benefit obtained from those activities. Similarly, the amount of any expenses incurred in the Appellant's criminal activities, such as acquiring tickets or providing flights or hotels, are not to be taken into account in order to reduce the amount of the benefit. The amount of the benefit is not affected, and not reduced, by the payment out of the expenses of the criminal venture: see R v May [2008] 1 AC 1028 at paragraph 45, R v Ahmad, R v Fields [2014] 3 WLR 23 at paragraph 49. For those reasons, in our judgment, the judge correctly held that the benefit obtained by the Appellant included the £209,980.29 in the two bank accounts.

The Expenditure Incurred by the Defendant

28. The second figure included within the value of the benefit obtained was the sum of £98,400 treated as expenditure incurred by the Appellant during the six year period prior to his being charged. If the prosecution were able to establish that the Appellant incurred expenditure, then, in accordance with section 10(4) of the 2002 Act, the Crown Court is required to assume that that expenditure was met by property obtained as a result of his general criminal conduct.
29. The prosecution case was that the Appellant would have had living expenses during his six years in London. The figure of £98,4000 was treated as the amount of money that, as a minimum, would have been needed by the defendant to live in London during that period. It was based on an index produced by the Joseph Rowntree Foundation. The prosecution, therefore, sought to add that figure to the monies in the bank accounts in order to obtain the total benefit obtained by the Appellant as a result of his general criminal conduct.
30. Mr Rooke challenges the use of the figure for the following reasons. He submits that it is clear from the records of the bank accounts in the name of Barbara Howell, which were being used by the Appellant, that part of his expenses were met from payments from those accounts. There are regular debits for hotel accommodation, travel, supermarket bills and so forth. The amounts paid into the bank accounts are already included in the amount of the benefit (as the sums in the bank accounts are treated as benefit by virtue of the statutory assumptions). They cannot be counted a second time as expenditure. Therefore, Mr Rooke submits, it is incorrect to infer that there has, additionally, been expenditure at the level anticipated by the Joseph Rowntree foundation index without taking account of the expenditure from the monies transferred into the bank account, those monies already being included in the benefit figure.
31. We leave open the question of whether, in an appropriate case, a court could infer that a defendant has incurred expenditure not otherwise included in the benefit figure by reference to an index of living costs. In the present case, however, it was not open to the Crown Court to approach the task in that generalised way. The bank records obtained by the prosecution established that expenditure incurred by the Appellant to meet his living costs was met, at least in part, by payments from the bank accounts. The Crown Court could not simply infer that the likely amount of expenditure, not already accounted for, was a figure equivalent to the Joseph Rowntree index. That would leave out of account the fact that at least some expenditure had been met from monies from the payments into the bank accounts which had already been included in the benefit figure. In those circumstances, there was no sufficient basis upon which the Crown Court could be satisfied that the prosecution had discharged the burden of establishing that the Appellant had incurred expenditure of £16,400 a year simply by assuming that he would have incurred expenditure and then inferring that the likely amount would be an amount calculated by refererence to the index. For that reason, in our judgment, the Crown Court erred in accepting that a figure of £16,400 a year for six years, or a sum of £98,400 in total, should be included in the benefit figure. The prosecution has not produced any other evidence from which it could be demonstrated that the Appellant had incurred expenditure, or expenditure in any particular amount. In those circumstances, the Crown Court erred, in our judgment, in including the figure of £98,400 in the benefit figure and there is no other figure which could be included to represent expenditure incurred by the Appellant.
32. In our judgment, therefore, the appropriate figure for the benefit which the Appellant obtained as a result of his general criminal conduct was £209,208.29: that is, the monies included in the bank accounts but not including the amount of alleged expenditure incurred by the Appellant.

THE RECOVERABLE AMOUNT

33. The recoverable amount will be the amount of the benefit unless the Appellant establishes that the assets available to him are less than that amount: see section 7(2) of the 2002 Act. The judge concluded that the Appellant had not discharged that burden and therefore found that the recoverable amount was the amount of the benefit.
34. Mr Rooke submits that the judge erred in his approach as he was required to approach matters in a just and proportionate way, relying on the observations of this Court in McIntosh and Mardsen v R [2011] EWCA Crim 1501 where Moses L.J. said this:

"In the light of Glaves and May there is no principle that a court is bound to reject a defendant's case that his current realisable assets are les than the full amount of the benefit, merely because it concludes that the defendant has not revealed their true extent or value, or has not participated in any revelation at all. The court must answer the statutory question in s. 71(6) in a just and proportionate way. The court may conclude that a defendant's realisable assets are less than the full value of the benefit on the basis of the facts as a whole. A defendant who is found not to have told the truth or who has declined to give truthful disclosure will inevitably find it difficult to discharge the burden imposed upon him. But it may not be impossible for him to do so. Other sources of evidence, apart from the defendant himself, and a view of the case as a whole, may persuade a court that the assets available to the defendant are less than the full value of the benefit."

35. In the present case, the background is one where the Appellant was engaged in fraud over an extended period of time. He used bank accounts in the names of others. He did not produce any records relating to his operation. He did not produce any documentary or other evidence relating to his assets. He gave oral evidence which the judge found to be dishonest. The judge found that he lied consistently on oath. The judge rejected the Appellant's evidence, including the evidence that he had no hidden assets. Against that background, the judge concluded that the Appellant had not discharged the burden of establishing that his realisable assets were less than the benefit figure obtained as a result of his general criminal conduct.
36. In our judgment, that was a conclusion that the judge was entitled to come to on the evidence before him. There was nothing disproportionate or unjust about the way in which the judge considered the question of realisable amount. The judge considered the Appellant's evidence and the evidence and the facts as a whole. There is nothing to indicate that the judge's conclusion was in any way perverse or failed to have regard to any relevant evidence. There was nothing in the case as a whole which indicates that the judge erred in concluding that the Appellant had not discharged the burden on him of establishing that his realisable assets were less than the benefit he obtained as a result of his general criminal conduct. In those circumstances, the judge was entitled to conclude that the recoverable amount was equal to the amount of the benefit.
37. For completeness, we record that the Appellant does not otherwise challenge the proportionality of the confiscation order and does not rely upon the decision of the Supreme Court in R v Waya [2013] A.C. 294 as requiring that any different or lower amount be ordered.

CONCLUSION

38. The Crown Court was entitled to conclude that the sum of £209,280.29 transferred into the bank accounts was obtained as a result of the Appellant's general criminal conduct, applying the statutory presumption in section 10(2) of the 2002 Act. It was not shown that that assumption was incorrect or that making the assumption would result in a serious risk of injustice. In the circumstances of this case, however, it was not open to the judge to infer that the Appellant had, additionally, incurred expenditure in the sum of £98,400 and to that limited extent the appeal will be allowed. The judge was entitled to conclude that the Appellant had not established that his realisable assets was less than that figure. In the circumstances, the recoverable amount is the amount of the benefit, that is £209,289.29. The available amount is similarly £209,280.29.
39. The confiscation order is therefore quashed to the extent that it orders the Appellant to pay a sum of £308,380.29, and specifies the value of the benefit and the available amount as £308,380.29 and a figure of £209,280.29 is substituted as the amount that the Appellant must pay and as being the value of the benefit and the available amount. The time by which payment is to be made remains the same, namely payment by 21 June 2014. The time within which the Appellant was ordered to pay the recoverable amount will stand unaltered. As the recoverable amount has been reduced, it is appropriate to make a reduction in the period of imprisonment in default of payment. The original period of three years' imprisonment in default is therefore quashed and a period of 2 years' six months substituted.