Commentary on Sections Confiscation orders Section 10: Assumptions to be made in case of criminal lifestyle
28.Section 10 applies where the court has decided that the defendant has a criminal lifestyle and it is, accordingly, considering the defendant’s benefit from general criminal conduct. The section requires the court to make certain specified assumptions to establish whether the defendant has benefited from general criminal conduct, and, if so, by how much. The court is not, however, permitted to make an assumption in relation to particular property or expenditure if it is shown to be incorrect or there would be a serious risk of injustice if it were made. Where for any reason the court does not make any of the assumptions specified in the legislation, it must nevertheless continue to decide whether the defendant has benefited from general criminal conduct and decide the recoverable amount, albeit without the assistance of the assumptions.
29.The earlier confiscation legislation provides for similar assumptions to be made. They are mandatory in confiscation proceedings following a conviction for a drug trafficking offence, but discretionary in all other confiscation cases (and, in the latter case, other criteria must be satisfied before they can be made). Section 11 creates a single scheme under which the assumptions are mandatory in all cases where a person has a criminal lifestyle (defined in section 75).