CRIME — Practice — Burden of Proof — Proceeds of Crime — Defendant charged with acquisition and possession of criminal property — Defendant raising defence that property acquired for adequate consideration — Whether legal burden of proof of adequate consideration on prosecution or defendant once issue raised — Proceeds of Crime Act 2002, s 329(2)(c)

Hogan v Director of Public Prosecutions

QBD: David Clarke and Irwin JJ: 21 February 2007

Once the issue of adequacy of consideration had been raised by a defendant under s 329(c) of the Proceeds of Crime Act 2002 it was for the prosecution to prove that there was either no consideration or no adequate consideration.

The Divisional Court of the Queen’s Bench Division so held allowing the appeal by way of case stated of the defendant, Mark John Hogan, against the decision of District Judge Blake sitting at the Lincoln District Magistrates’ Court that he had acquired and had possession of criminal property contrary to ss 329(1)(a) and (c) of the Proceeds of Crime Act 2002.

S 329 of the 2002 Act provides:
“(1) A person commits an offence if he—(a) acquires criminal property; (b) uses criminal property; (c) has possession of criminal property.
“(2) But a person does not commit such an offence if … (c) he acquired or used or had possession of the property for adequate consideration…”

The defendant claimed that he had provided adequate consideration for the property. The question for the court was whether the district judge erred in law in looking at the whole circumstances of the alleged payment of consideration in concluding that the defendant had not paid adequate consideration or whether the defendant was afforded a defence under s 329(2)(c) of the 2002 Act once he established that he had made payment of consideration which might be adequate in value.

IRWIN J, giving the judgment of the court, said that the question before the court raised the issue of where the burden of proof lay under s 329(2)(c). Where the adequacy of consideration was an issue in a case there was an evidential burden on the defendant to show that there had been adequate consideration. Once the issue had been raised it was for the prosecution to show either that there had been no consideration or that the consideration had been inadequate. To place the legal burden of proof on a defendant would be too great an intrusion into the presumption of innocence enjoyed by him under art 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, scheduled to the Human Rights Act 1998.

Appearances: Claire Howell (Crown Prosecution Service) for the Director of Public Prosecutions; Henry Hughes (McKinnells, Lincoln) for the defendant.

Reported by: Jessica Giles, solicitor