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 those offences is immaterial for the initial purpose of determining the total benefit.’ Under section 71(4) of the 1988 Act it was necessary that the defendant himself should have obtained property as a result of his offending, even if jointly or through a third party at his behest, and his benefit is the value of the property so obtained. The defendant was responsible for all the proceeds of the offence, a responsibility he could not shed only because his accomplices had got away with their respective shares.
‘I have in mind that the confiscation proceedings of the 1988 Act are penal and expose a defendant to a sentence of imprisonment in default and that clear words are required before the statute can be construed against the interest of a defendant. However, the 1988 Act, like the Drug Trafficking Offences Act 1986, was intended to be severe in its effect, and it would be incapable of effective application by the courts if it were to impose a burden of proof upon the Crown whenever the defendant raises an issue as to the existence or extent of his realisable property, matters which are essentially within his personal knowledge . . I conclude, therefore, that in confiscation proceedings under the 1988 Act, once the prosecution has proved to the [civil] standard that a defendant has benefited as defined by the Act, and that the amount of the benefit exceeds the prescribed minimum, it is for the defendant to raise the issue of realisability and to satisfy the court that the ‘amount that might be realised’ is less than the amount which it has assessed as the amount of the benefit.’
Judges:
Auld J
Citations:
Unreported, 19 July 1990
Statutes:
Theft Act 1968 15, Criminal Justice Act 1988 71(4)
Jurisdiction:
England and Wales
Citing:
Approved – Regina 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 . .
Cited by:
Cited – May, 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 . .
Approved – 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
Updated: 26 March 2022; Ref: scu.270201
