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 disqualification order or an undertaking not to act as a director.
Held: The values were to be determined by the director’s own personal benefit, and not be reference to the turnover of the company as a whole. The sentence was inconsistent with the case law.
Aikens LJ said: ‘The judge should have asked the question: what benefit had Mrs Neuberg, as the relevant offender, obtained as a result of or in connection with her offence of trading under a prohibited style without the leave of the court contrary to the Insolvency Act 1986? It was not correct necessarily to equate the turnover of the business with the benefit that had been obtained by Mrs Neuberg as a result of or in connection with her offence.
On the law as it stands, the benefit obtained by an offender is a question of fact to be determined by the judge. However, the turnover of any company through which the offender acted may be relevant to ascertaining the benefit obtained by the offender. That was held to be so by this court in R v Xu . .’
Judges:
Lord Justice Aikens, Mr Justice Hedley and Mr Justice Hickinbottom
Citations:
[2009] EWCA Crim 1303, Times 16-Jul-2009, [2010] 1 WLR 815
Links:
Statutes:
Powers of Criminal Courts Act 2002
Jurisdiction:
England and Wales
Citing:
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 . .
Cited – 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 – Xu 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. . .
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 . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing, Company
Updated: 15 September 2022; Ref: scu.347231
