O'Connor and Others v AG

We too adopt this approach. Under the Jersey Law, whilst the civil standard of proof is set for a question as to whether a person has benefited from drug trafficking, it seems to us that, depending upon individual circumstances, a question arising under the Law as to that matter will require consideration of a number of matters, some of which may be ancillary and some subsidiary. The question as to whether or not there was expenditure is ancillary in that it is only when the expenditure has been identified that the assumption may be made. It is, however, still part of the whole question as to whether or not there has been a benefit from drug trafficking. Indeed, there seems to us no logic in seeking to apply the criminal standard of proof to the issue as to whether a payment has been made where the assumption which can be taken thereafter may be reached according to the civil standard. There is no requirement that, in making the expenditure, a criminal offence is also being committed. All that is required is that there has been expenditure.

On behalf of Mr. O'Connor it was further submitted that the Sentencing Court ignored or failed to have proper regard to the agreed statement of facts at the Confiscation hearing and thus misdirected itself in regard to whether Mr. O'Connor had incurred expenditure. On behalf of the Crown, Advocate Fitz has indicated that it was correct that the Crown had agreed to edit the summary to remove the specific references to O'Connor being directly involved in the funding but indicated, further, that there was no evidence to support the assertion of direct involvement to the criminal standard which applied to facts relevant to sentencing. In Dellaway , cited above, the appellant was one of five persons involved in an alleged conspiracy to supply a Class A controlled drug, of which the appellant and one other person were convicted. It was considered sufficient by the Sentencing Court and the Court of Appeal that there was a conclusion that the appellant had been the organiser of the importation (see paragraph 10). Here, too, O'Connor was regarded by the Sentencing Court as the organiser and main director of the offence. In our view it is therefore a perfectly proper inference to make, as a matter of common sense, and on a balance of probabilities, that O'Connor had participated in the making of expenditure for the purpose of acquiring the drugs. As the learned Commissioner stated in paragraph 6 of the confiscation judgment of 28 February 2007, there was no evidence before the court to show that the assumption that expenditure had been made was incorrect.

For all the foregoing reasons we refuse all applicants leave to appeal against sentence. We also refuse O'Connor's application to invite us to interfere with the Confiscation Order.