The court considered the phrase requiring a payment having the quality of a reward received in connection with commission of the relevant offence. Toulson LJ stressed the need to have regard to the whole phrase and its effect as a matter of language: ‘The phrase ‘payment or other reward’ implies that the payment must be in the nature of a reward in order to fall within the relevant section, and that is consistent with the rationale of the confiscation scheme as explained by the House of Lords. The final sentence of in May would make no sense if physical receipt of a sum of cash by D constitutes ipso facto the receipt of a payment or other reward, whether payment is for himself or not.’
Toulson LJ dealt with two misconceptions that had featured in Sivaraman: ‘In Sivaraman the court also addressed two misconceptions which subsequent cases suggest may still be common. One was that in assessing benefit in a conspiracy case each conspirator is to be taken as having jointly obtained the whole benefit obtained by ‘the conspiracy’. A conspiracy is not a legal entity but an agreement or arrangement which people may join or leave at different times. In confiscation proceedings the court is concerned not with the aggregate benefit obtained by all parties to the conspiracy but with the benefit obtained, whether singly or jointly, by the individual conspirator before the court. The second misconception is a variant of the first. It is that anybody who has taken part in a conspiracy in more than a minor way is to be taken as having a joint share in all benefits obtained from the conspiracy. This is to confuse criminal liability and resulting benefit. The more heavily involved a defendant is in a conspiracy, the more severe the penalty which may be merited, but in confiscation proceedings the focus of the inquiry is on the benefit gained by the relevant defendant. In the nature of things there may well be a lack of reliable evidence about the exact benefit obtained by any particular conspirator, and in drawing common sense inferences the role of a particular conspirator may be relevant as a matter of fact, but that is a purely evidential matter.’
Judges:
Latham VP CACD, Hughes, Toulson LJJ, Rafferty, Maddison JJ
Citations:
[2009] EWCA Crim 8, [2009] 2 Cr App R (S) 58, [2009] Lloyd’s Rep FC 242, [2009] Crim LR 363
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Mackle, Regina v SC 29-Jan-2014
Several defendants appealed against confiscation orders made against them on convictions for avoiding customs and excise duty by re-importing cigarettes originally intended for export. They had accepted the orders being made by consent, but now . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing
Leading Case
Updated: 23 May 2022; Ref: scu.280052