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 court had made each of 16 defendants liable for the full amount, allowing recovery of much more than was lost, and that this was disproportionate.
Held: The House examined the history of anti-money laundering statutes. The defendant had benefitted from crime and (because of an error of the judge) to an extent greater than the confiscation order to which he was subject. The order was less than his realisable assets. There was no injustice, and the appeal failed.
Lord Bingham related the history of the Acts involved: ‘The series began with the Drug Trafficking Offences Act 1986, and there followed (among the more important statutes) the Criminal Justice Act 1988, the Criminal Justice (International Co-operation) Act 1990, the Criminal Justice Act 1993, the Drug Trafficking Act 1994, the Proceeds of Crime Act 1995 and the Proceeds of Crime Act 2002. In these statutes the original confiscation regime established by the 1986 Act was modified, extended, elaborated and tightened . . But despite much refinement and differences between the 1986 and 1994 Acts on the one hand and the 1988, 1993 and 1995 Acts on the other, the essential structure of the 1986 regime has been retained.’
Where a benefit is obtained jointly, each of the joint beneficiaries has obtained the whole of the benefit and may properly be ordered to pay a sum equivalent to the whole of it. Lord Bingham set out the sole exeption: ‘There might be circumstances in which orders for the full amount against several defendants might be disproportionate and contrary to article 1 of the First Protocol, and in such cases an apportionment approach might be adopted, but that was not the situation here and the total of the confiscation orders made by the judge fell well below the sum of which the Revenue had been cheated.’
Lord Bingham of Cornhill pointed out that a court considering an application for a confiscation order must address and answer three questions. First, is whether a defendant has benefited from the relevant criminal conduct; second concerns the value, or quantification, of that benefit; and the third question is what sum is recoverable from the defendant. When considering the first question, section 76(4) of POCA provides that ‘[a] person benefits from conduct if he obtains property as a result of or in connection with the conduct’, and ‘property’ is defined as including ‘money’ by section 84(1). Section 84(2) contains some ‘rules’, which include in para (b) that ‘property is obtained by a person if he obtains an interest in it’.
Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell, and Lord Brown of Eaton-under-Heywood
[2008] UKHL 28, Times 15-May-2008, [2008] 2 WLR 1131, [2008] 1 AC 1028, [2009] STC 852, [2008] 2 Cr App Rep 28, [2008] Crim LR 737, [2008] 4 All ER 97, [2009] 1 Cr App Rep (S) 31, [2008] Lloyd’s Rep FC 45, [2009] 1 Cr App R (S) 31
Bailii, HL
Drug Trafficking Offences Act 1986, Criminal Justice Act 1988, Criminal Justice (International Co-operation) Act 1990, Criminal Justice Act 1993, Drug Trafficking Act 1994, Proceeds of Crime Act 1995, Proceeds of Crime Act 2002, European Convention on Human Rights A1P1
England and Wales
Citing:
See Also – Crown 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: . .
See Also – Regina 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 . .
Cited – Regina v Cuthbertson HL 1981
With ‘considerable regret’, the power of forfeiture and destruction conferred on the court by section 27 of 1971 Act did not apply to offences of conspiracy, and could not be used to provide a means of stripping professional drug-traffickers of the . .
Cited – In re Norris, Application by Norris HL 28-Jun-2001
The applicant’s husband had been made the subject of a drugs confiscation order. Part of this was an order against the house. She had failed in asserting that the house was hers. Her appeal to a civil court had been disallowed as an abuse. It was . .
Cited – Regina v Chrastny (No 2) CACD 14-Mar-1991
The defendant was the only one of several defendants convicted of involvement in a drugs case. He appealed a confiscation order under which he carried the entire weight of the confiscation order.
Held: The order was correct provided that the . .
Appeal from – May and Others, Regina v CACD 28-Jan-2005
. .
Cited – Ahmed and Qureshi v Regina CACD 28-Oct-2004
The defendants appealed confiscation orders saying that the court had taken account of their interests in the matrimonial home, and that this would prejudice the interest of others.
Held: Before the amendment to the section, the court had . .
Cited – Regina v Walls CACD 30-Oct-2002
The defendant had been made the subject of a confiscation order. He appealed, saying that in calculating the assets, he had taken the gross value of his property without allowing for an outstanding mortgage.
Held: The mortgage advance was not . .
Cited – Regina v Osei 1988
The defendant appealed a confiscation order. She was a drug courier armed with a sum of cash to enable her to show that she could support herself in order to enter the country.
Held: The word ‘payment’ was apt to cover not merely a profit or . .
Cited – Regina v Smith (Ian) CACD 1989
The defendant had been convicted of supplying cannabis resin. He received a payment 2,500 and appealed a confiscation order for that amount, saying that the profit was much less.
Held: In section 2(1)(a) the phrase ‘any payments’ had a wide . .
Cited – Regina v Simons CACD 4-Jun-1993
The appellant had bought five consignments of drugs from a Hong Kong supplier and sold them on to an African buyer, from whom in each case he had received the purchase price which he had paid on to the supplier. He appealed confiscation orders in . .
Cited – Regina v Banks CACD 9-Dec-1996
Valuation of drugs in confiscation order.
Applying the 1994 Act, sections 2(3) and 4(1) were directed to gross payments and not net profits. . .
Cited – Johannes, Regina v CACD 5-Dec-2001
. .
Cited – Regina v Dickens CACD 11-Apr-1990
The defendant had been convicted of conspiring to import cannabis, and made subject inter alia to a confiscation order.
Held: ‘ the object of the Act is to ensure, so far as is possible, that the convicted drug trafficker is parted from the . .
Cited – Regina v Gokal, Abas Kassimali CACD 1997
The defendant challenged admission of written statements saying that he would only be able to controvert the written statements if he gave evidence, and it was submitted that that would infringe his right to silence.
Held: There was no reason . .
Criticised – Regina v Porter CACD 1990
The defendant and a co-defendant admitted drugs offences. They were found to have jointly benefited in accordance with section 1(2) of the 1986 Act, that the extent of that benefit was andpound;9,600 and that they should jointly and severally be . .
Cited – Regina v Rees 19-Jul-1990
The defendant had pleaded guilty to offences of obtaining property by deception, The judge discussed the issue of the obtaining of benefit saying: ‘The fact that he may not have personally received all or some of the money in relation to any of . .
Cited – Olubitan v Regina CACD 7-Nov-2003
The defendant appealed against a confiscation order. He had used a company to defraud suppliers on the continent of substantial sums. He said that his involvement in the conspiracy was only toward the later end and that he had received no benefit in . .
Cited – Regina v Frank Adam Moran (Attorney General’s Reference No 25 of 2001) CACD 27-Jul-2001
The defendant pleaded guilty to making false statements, and cheating the public revenue by understating his profits as a market trader over a protracted period. The judge made a confiscation order equal to the amount of undeclared profit. On . .
Cited – Regina v Currey CACD 1995
The defendant was one of four conspirators who had between them obtained andpound;220,000 by fraud. There was no evidence before the trial judge to enable him to determine how the proceeds had been divided between the conspirators or, it seems, to . .
Cited – Patel, Regina v CACD 3-Nov-1999
The defendant postmaster had pleaded guilty to one count of conspiring to obtain property by deception. He had obtained payment of pounds 51,920 from the Post Office by using stolen benefit books and forging signatures. He had then paid a share of . .
Cited – Regina v Rezvi HL 24-Jan-2002
Having been convicted of theft, a confiscation order had been made against which the appellant appealed. The Court of Appeal certified a question of whether confiscation provisions under the 1988 Act were in breach of the defendant’s human rights. . .
Cited by:
Cited – Regina 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 . .
Incorporated – Crown 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: . .
Cited – White and Others v Regina CACD 5-May-2010
The defendants appealed against confiscation orders made after a finding that they had been involved (separately) in the smuggling of tobacco, suggesting a conflict between the 1992 Regulations and the Directive.
Held: The appeals variously . .
Cited – 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 . .
Cited – Seager, Regina v; Regina v Blatch CACD 26-Jun-2009
The court considered how to determine in the context of applications for confiscation orders, the value of the ‘benefit’ obtained by an offender who has been guilty of managing a company as a director in contravention of a director’s . .
Cited – Peacock, Re SC 22-Feb-2012
The defendant had been convicted of drugs offences, and sentenced under the 1994 Act. The gains he had made exceeded his then assets. Later he acquired further property honestly, and the Court now considered whether those assets could be taken to . .
Cited – Waya, Regina v SC 14-Nov-2012
The defendant appealed against confiscation orders made under the 2002 Act. He had bought a flat with a substantial deposit from his own resources, and the balance from a lender. That lender was repaid after he took a replacement loan. He was later . .
Cited – Virgin Media Ltd, Regina (on The Application of) v Zinga CACD 24-Jan-2014
Zinga had been convicted of conspiracy to defraud in a private prosecution brought by Virgin Media. After dismissal of the appeal against conviction, Virgin pursued confiscation proceedings. Zinga appealed against refusal of its argument that it was . .
Cited – Ahmad, Regina v SC 18-Jun-2014
The court considered the proper approach for the court to adopt, and the proper orders for the court to make, in confiscation proceedings where a number of criminals (some of whom may not be before the court) had between them acquired property or . .
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 . .
Cited – Harvey, 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 . .
Cited – Glaves v Crown Prosecution Service CA 3-Feb-2011
. .
Cited – Mcintosh and Another v Regina CACD 22-Jun-2011
The appellants argued that the court had misdirected itself in law when concluding that neither appellant had satisfied him that the amount that might be realised at the time he made the confiscation orders was less than the agreed amount of . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing, Human Rights
Updated: 02 November 2021; Ref: scu.267673
