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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 >> Liscott, R. v [2007] EWCA Crim 1706 (03 July 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/1706.html Cite as: [2007] EWCA Crim 1706

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		3 July 2007

1. MR JUSTICE SILBER: Mark Liscott, James Toon and Andrew Liscott renew their applications for leave to appeal against confiscation orders which were made against each of them at the Birmingham Crown Court on different dates in December 2005. These applications were refused on paper by the single judge.
2. The confiscation orders were made after each of the applicants had changed their pleas to ones of guilty to charges of conspiring to supply controlled drugs of class B (cannabis) at the Crown Court in Birmingham. Each of the applicants received lengthy terms of imprisonment. They duly applied for leave to appeal against their substantive sentences but none of these applications led to any reduction in their sentences.
3. Following confiscation proceedings, a confiscation order was made against Mark Liscott on 13th December 2005 in the sum of £2 million which had to be paid by 30th June 2007 with a prison sentence of seven years consecutive to his other term being imposed in the event of default of payment. On 15th December 2005 a confiscation order in the sum of £424,554 was made against Toon with such sum being payable by 31st December 2006 with a sentence of four years' imprisonment consecutive to the other term being imposed in default of payment. Andrew Liscott was ordered to pay £500,000 by 31st December 2006 with a three year prison sentence in default of payment, again the sentence to be consecutive to the sentence he was already serving.
4. The applicants were part of a larger conspiracy to supply very large quantities of cannabis. The conspiracy which lasted from June 2002 to July 2003 produced a benefit assessed at £21,227,712 and that is a figure which is not in dispute. It was based on the total weight of the cannabis involved which was in the region of 17,689 kilos.
5. When sentencing the applicants, the learned trial judge explained that he considered Mark Liscott, who had two similar previous convictions for drug offences, to be a professional drug dealer who was the commander in chief together possibly with others at the same level. The view of the sentencing judge was that Andrew Liscott was an active first lieutenant of his brother as he was trusted with the task of arranging deals, of handling money and of taking and making delivery of money and drugs. He believed that Andrew Liscott was an essential participant involved in each of these aspects of the case. So far as Toon was concerned, the judge considered that he played an important part in the conspiracy by receiving the drugs from abroad and then providing a safe house for them.
6. Starting with Mark Liscott's application for leave to appeal, his main ground was that the judge ought not to have decided that he had hidden assets with the consequence that the total confiscation order was unduly harsh. It is not disputed that the judge was aware and mentioned the correct principles, but it is said that he erred in finding that there were hidden assets. A point that was initially taken on his behalf was that there had been many covert recordings and it would therefore have been expected that they would have shown where the hidden assets were. Nevertheless, we were told by Mr Davis QC on behalf of the prosecution that it was clear from the covert recordings that this applicant knew he was being recorded and that fact leads us to the conclusion that he would have been careful not to reveal any of his assets.
7. Mark Liscott said that his realisable assets totalled £343,629 but this figure excluded equity in a property at 2 Scarsdale Road, Birmingham. The applicant did not adduce any evidence to show that this house was not owned by him, notwithstanding that there was a substantial body of opinion showing his connection with the house. In our view, the judge was quite entitled to conclude that the real beneficial owner of the house was Mark Liscott. The judge then proceeded to say that this was further evidence that Mark Liscott was salting away money in other places and that he had substantial hidden assets with which to satisfy a confiscation order.
8. The judge in his ruling on the confiscation proceedings reminded himself of his conclusion that Mark Liscott had played a central role in the conspiracy and that he had made a substantial profit from his criminal activity. He added that the amount to be ordered to be confiscated was £2 million which was a little under half of the total benefit of the judge's apportionment of Mark Liscott's benefit. We should explain that in his ruling in the confiscation proceedings the judge apportioned Mark Liscott's benefit at 20 per cent of the whole of the value of £21,227,712 and that gave a figure of just over £4 million which has not been disputed. In our view the judge, who was the essential fact-finder, was entitled to conclude as he did about the hidden assets of Mark Liscott. We stress that the applicant did not give evidence and we are quite satisfied that there is no risk of injustice in the judge's finding.
9. So far as the period imposed in default of sentence was concerned, it is necessary to bear in mind the maximum period that could have been imposed was a term of 10 years, even bearing the mind the principle of totality. There is nothing wrong with the sentence in default that was imposed on Mark Liscott, bearing in mind the very substantial benefit that he had obtained and his central role in this conspiracy. Thus the application of Mark Liscott for leave to appeal is refused.
10. We now turn to consider the case of Andrew Liscott. The first criticism that was put forward on his behalf was that the judge overstated his role in this conspiracy. We are unable to agree. It is quite clear that Andrew Liscott was active in the conspiracy and that he played more than the subordinate role which was suggested by him in his grounds of appeal. We are fortified in coming to that view by a similar conclusion reached by this court on 7th July 2006 when it dismissed his appeal against his substantive sentence.
11. The next ground of appeal was that the judge erred in finding that there were hidden assets of £500,000 because it was said there was no evidence to support that conclusion. After the judge had heard Andrew Liscott's evidence, he concluded that it was wholly incredible both as to the amount of his involvement and also as to his claim that he never received anything more than a couple of payments of £300 or so from his brother for his part, the part he played in this very large-scale conspiracy. The judge was of the view that if the evidence of Andrew Liscott was true there would be no reason for him to have become involved at all. Indeed, the judge found that he played a very useful part in this conspiracy which the judge was entitled to find bearing in mind that he heard the covert tape conversations which were the product of the surveillance on Mark Liscott's car.
12. It was also the view of the judge the answers given by Andrew Liscott when he was cross-examined about these conspiracies was wholly unsatisfactory and vague, with the result that the judge was quite entitled to reject Andrew Liscott's evidence both as to his part in the conspiracy and what he received for it. In the circumstances, the judge came to the view that the apportionment of the prosecution of the role that Andrew Liscott played was five per cent which comes to the sum of just over £1 million, with the result that the judge certified the benefit in that sum.
13. When giving his reasons the judge explained that it would be for the applicant to persuade him first that he did not have the means to pay and second that he should make an order for a lesser sum. He decided in this case that Andrew Liscott had not discharged that burden so the judge was sure that he had not salted away as much as £1 million. Under those circumstances, the judge concluded he was quite entitled on the evidence before him to find that Andrew Liscott had hidden assets and he came to the conclusion that he could reduce the order to the sum of £500,000. In our view there is nothing wrong with this approach which is in the clear and careful judgment of the judge. We should add that in reaching that conclusion we have taken account of the matters set out by Andrew Liscott in his letter to the court which we have considered with appropriate care. Thus his application for leave to appeal has to be refused.
14. We now turn to the application of James Toon. In his case the prosecution asked the court to assess his benefit as two per cent of the whole of the value of the conspiracy and the judge accepted this assessment, although he thought it was very favourable to James Toon because he had stored a number of substantial consignments of cannabis which in their value far exceeded the apportioned value of two per cent. James Toon did not give any evidence in the case. The point that was made on his behalf is that the investigator was unable to find any evidence of hidden assets.
15. In our view the judge was not bound by that point and was entitled to reach his own conclusion on the evidence that had been adduced on behalf of Toon. In the view of the judge this evidence was incredible and he drew attention to the way in which Toon had changed his position in explaining his assets during the course of the proceedings. This led to the conclusion that Toon had not been frank in his response about his assets and that there was a proper basis for concluding that he had hidden assets because he received greater reward than he had admitted. He had, after all, in the view of the judge, kept a number of substantial consignments of cannabis in store until he was given instructions regarding their distribution. The judge explained carefully and cogently why he took the view that Toon had not discharged the burden to satisfy the court that his realisable assets were less than the amount of the value of the proceeds for which he had made a confiscation order. In our view, this conclusion was open to the judge for the reasons which he gave. It must not be forgotten that the judge had been involved in the trial of other defendants and in our view he was quite entitled to reach the conclusions which he did.
16. We have also considered but rejected the submission made on paper but not orally that the hearing was unfair because the judge had behaved unfairly in interrupting the examination of the financial investigator. We do not consider there is any merit in this point.
17. We did notice and were concerned by the fact that the default sentence imposed on Toon was one of four years' imprisonment in respect of an order of £424,554, while the default sentence imposed on Andrew Liscott was three years for a default of a larger sum of £500,000. But, as Mr Davis on behalf of the prosecution pointed out, the judge was entitled in determining the default sentence to take account of the pressure which might be needed on the particular defendant to ensure that he complied with the default order. We do not consider that the default sentence imposed on Toon was arguably manifestly excessive or wrong in principle. For all those reasons his application for leave to appeal and as in the case of the other applicants it has to be dismissed.