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 benefit, a sum of pounds 3,668,990. The appeal raises the issue as to the correct approach a court should adopt to determine realisable amounts and, in particular, the proper interpretation of dicta in Telli v Revenue and Customs Prosecution Office [2008] 2 Cr App R (S) 48, in the light of R v May [2008] 1 AC 1028 and Glaves v Crown Prosecution Service [2011] EWCA Civ 69.
Held: The appeal failed. ‘the scheme of the Act requires the court to perform two distinct and discrete tasks. First, to determine the benefit. Secondly, to determine the amount that might be realised at the time the order is made, which may be very different. Further, the amount that might be realised may be quite unrelated to the identifiable proceeds of the offence, e.g. a lottery win, inheritance, or other lawfully acquired property. In the end, the task of the court at the second stage is to determine the amount ‘appearing to the court’ to be the amount that might be realised. But once the benefit has been proved, it is permissible and ought normally to be the approach of the court, to conclude that the benefit remains available until the defendant proves otherwise; subject to the issue of changes in the value of money’
The court must allow for the change in he value of money for the first part of the analysis, but not for the second.

Judges:

Moses LJ, Maddison J, Goldstone HHJ

Citations:

[2011] EWCA Crim 1501, [2011] Crim LR 814, [2011] STC 2349, [2011] STI 1940, [2011] 4 All ER 917, [2011] Lloyd’s Rep FC 577, [2012] 1 Cr App R (S) 60

Links:

Bailii

Statutes:

Criminal Justice Act 1988 71(4)

Jurisdiction:

England and Wales

Citing:

CitedTelli v Revenue and Customs Prosecutions Office CA 21-Dec-2007
The appellant had completed that proportion of a total of 22 years’ imprisonment, which he was required to serve for drug trafficking offences. But he remained in prison serving a default term for failure to pay the whole of the sum of pounds . .
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 . .
CitedGlaves v Crown Prosecution Service CA 3-Feb-2011
. .
CitedBarwick, Regina v CACD 13-Oct-2000
The defendant had defrauded women of in excess of pounds 500,000. He admitted dishonesty. The court ordered confiscation under the 1988 Act, with the benefit assessed as that figure, adjusted to pounds 600,000 to allow for the return he should have . .
CitedRegina v Ilsemann CACD 1990
The benefit from criminal activity had been pounds 396,000-odd and the Crown had been able positively to prove realisable assets worth pounds 214,000-odd in the hands of the defendant.
Held: Taylor LJ considered the terms of section 4(3): ‘If . .
ApprovedRegina 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 . .
CitedRegina v Layode CACD 12-Mar-1993
The judge, when making a confiscation order, had assumed that the onus of proving the amount that might be realised was upon the prosecution. The defendant appealed.
Held: MacPherson J said: ‘The judge furthermore resolved to decide this case . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 26 March 2022; Ref: scu.442189