Basso and Another v Regina: CACD 19 May 2010

The defendants had been convicted of offences of failing to comply with planning enforcement notices (and fined andpound;10.00), and subsequently made subject to criminal confiscation orders. The orders had been made in respect of the gross income receipts of the business, limited to andpound;760,000. The defendants said that the activities had been otherwise lawful and innocuous, and that the proceedings had been excessive and an abuse.
Held: The appeal failed. ‘the legislation looks at the property coming to an offender which is his and not what happens to it subsequently; the court is concerned with what he has obtained ‘so as to own it, whether alone or jointly, which will ordinarily connote a power of disposition or control’; whatever disposition of that property is made (whether for socially worthwhile reasons or otherwise) is irrelevant. If it was otherwise, the court would be called upon to make a series of almost impossible value judgments: profit is not the test and the use of the words ‘true’ or ‘real’ to qualify ‘benefit’ does not suggest to the contrary.’ The court was not to look at the net benefit, but at the property acquired: ‘It is for the judge to find as a fact what property the two men had obtained and, thus, the extent of the benefit. What happens to that benefit after it has been obtained (for example, how it might have been spent) forms no part of the statutory test.’
‘From the moment that Mr Del Basso had exhausted his rights of appeal against the enforcement notice, it was his duty to obey the law: he chose, deliberately, not to do so. The local authority could have prosecuted immediately but provided him with another five months to comply and yet, still, he refused to do so.’ The defendant had treated the breaking of the criminal law as ‘a routine business risk with financial implications in the form of potential fines or, at worst, injunctive proceedings. This may reflect a more general public impression among those confronted by enforcement notices with the decision whether to comply with the law or to flout it. The law, however, is plain. Those who choose to run operations in disregard of planning enforcement requirements are at risk of having the gross receipts of their illegal businesses confiscated. This may greatly exceed their personal profits. In this respect they are in the same position as thieves, fraudsters and drug dealers.’ (Baker J – at trial)

Leveson LJ, Treacy, Coulson JJ
[2010] EWCA Crim 1119, 200904121 B5, [2011] 1 Cr App R (S) 41, [2011] Lloyd’s Rep FC 25
Town and Country Planning Act 1990 179(1) 179(2), Proceeds of Crime Act 2002 6
England and Wales
see alsoRegina v Bishop’s Stortford Football Club and others CACD 2006
. .
CitedJ v Crown Prosecution Service CA 24-Jun-2005
The defendant had been made subject to a criminal restraint order so as to preserve his assets pending the outcome of criminal proceedings. He complained that the order affected property which was not his.
Held: Such an order could cover . .
CitedNeuberg (Karen), Regina v CACD 13-Jul-2007
The Act applied to a company which was being operated in breach of section 216 of the Insolvency Act which forbids the use of a prohibited trading style. . .
CitedMay, Regina v HL 14-May-2008
The defendant had been convicted of involvement in a substantial VAT fraud, and made subject to a confiscation order. He was made subject to a confiscation order in respect of the amounts lost to the fraud where he was involved, but argued that the . .
CitedSivaraman, Regina v CACD 24-Jul-2008
The manager of a service station had accepted deliveries of ‘off road’ diesel on behalf of his employer, who had then sold it on without payment of duty. The judge had felt constrained (‘contrary to his commonsense view of the true benefit’) to . .
CitedRegina v Green HL 14-May-2008
The appellant had been found to have received criminal proceeds along with another. He appealed against an order making him liable for the full amount.
Held: The appeal failed. The defendant’s argument did not face the finding that he had been . .
CitedMorgan v Regina; Bygrave v Regina CACD 20-Jun-2008
The court considered the circumstances under which it might exercise its jurisdiction to prevent an abuse of process in confiscation proceedings. The circumstances where a confiscation might be oppressive are: ‘where demonstrably (i) the defendant’s . .
CitedCrown Prosecution Service v Jennings HL 14-May-2008
The appellant appealed against the refusal to discharge a restraint order under the 1988 Act. The sum found to have been obtained in the later trial vastly exceeded the sum the defendant said had ever come within his control or benefit.
Held: . .
CitedXu and Xu, Regina v CACD 15-Oct-2008
The appellants had been convicted of facilitating a breach of immigration law after employing illegal immigrants in their Chinese restaurant. They had been made subject to an order treating the entire receipts of the business as criminal proceeds. . .
CitedGrainger, Regina v CACD 14-Oct-2008
The appellant had been convicted (along with the controlling shareholder) of fraudulent trading in a company of which he was group financial director and in which he had a small interest. A confiscation order was made on the basis that he had . .
CitedShabir v Regina CACD 31-Jul-2008
The appellant, a pharmacist had been convicted of inflating his claims for monthly payments by a small amount. He sought a stay of confiscation proceedings, saying that they amounted to an abuse.
Held: The jurisdiction to order stay for abuse . .
CitedCrown Prosecution Service (Durham) v Nelson; CPS v Pathak; CPS v Paulet CACD 28-Jul-2009
Nelson had been found possessing a stolen digger worth andpound;14,000. It was returned to the owner. He was to receive andpound;1,000 for supplying documents for it. Pathak used monet stolen from his employers to purchase property, but had repaid . .

Cited by:
AppliedHarvey, Regina v CACD 3-Jul-2013
The defendant had been convicted of handling and receiving stolen goods. He now appealed from a confiscation order made under the 2002 Act. The defendant having admitted to benefiting from a criminal lifestyle, the court had to decide to what . .
CitedHarvey, Regina v SC 16-Dec-2015
Police had discovered quantities of stolen goods at the appellant’s business premises. He was convicted of receiving stolen goods, and confiscation order made. He now appealed from the inclusion in that order of sums of VAT which had already been . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Planning

Updated: 01 November 2021; Ref: scu.415927