The defendant was convicted of burglary. He had a previous conviction, within the statutory assumption period of six years, for handling. Both the property stolen in the burglary and the property handled had been recovered intact and restored, undamaged, to the true owners. The defendant had obtained no other benefit from the offences. These two convictions triggered the statutory assumptions, providing that Wilkes had benefited (to any extent) from each of the offences. The Crown did not assert that the calculation of his benefit ought to include the value of the goods either stolen in the burglary or handled on the previous occasion, relying only on the statutory assumptions which cast upon him the onus of disproving the proposition that his expenditure on living over the previous six years and some money found buried in the garden were, in each case, attributable to crime. The Court of Appeal was invited to hold that the statutory assumptions did not apply because Wilkes had not benefited, even briefly, from the two offences under consideration.
Held: That argument was rejected; he had benefited, although the benefit had been for the briefest of time. The court could not consider whether the order sought was disproportionate. If the Crown had sought to recover from him the value of the goods which had been restored intact to their owners, that would have been disproportionate to the aim of the statute to deprive him of his proceeds of crime. But it did not. It sensibly abstained from attempting to do so and instead relied upon the contention that except so far as he could prove otherwise his assets and expenditure over the past six years should be treated as the proceeds of crime. That was no doubt severe, but he had the opportunity to disprove these things, and could do so, to the extent, for example, that he could show that he had received state benefits. If he had been able to demonstrate that the source of his assets or expenditure was honest earnings from employment, or genuine untainted gifts from others, or a loan honestly obtained from a third party (R v Johnson (Julie) [1991] 2 QB 249 and R v Walls [2002] EWCA Crim 2456, [2003] 1 WLR 731), the same would have applied. If any assumption had carried the risk of serious injustice to him, it would not have been made. Instead, the conclusion on the evidence was that he was a career criminal and all unaccounted-for expenditure had been derived from the proceeds of crime. For the confiscation order to be made, there had to be available assets up to the sum ordered. The order as made in his case was not disproportionate to the statutory objectives.
Judges:
Lathanm LJ, Gross, Cox JJ
Citations:
[2003] EWCA Crim 848, [2003] 2 Cr App R (S) 105
Links:
Jurisdiction:
England and Wales
Criminal Sentencing
Updated: 06 November 2022; Ref: scu.465890