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 conclude that the manager who had been paid pounds 15,000 by his employer for his participation had jointly benefited in the total amount of duty evaded, amounting to 128,520 pounds, and he made an order in that sum. The manager appealed.
Held: The judge was not so obliged. The manager had not received the diesel as a joint trader but as an employee. Toulson LJ said: ‘[W]hen considering questions of confiscation the focus of the enquiry is on the benefit gained by the relevant defendant, whether individually or jointly.’, and ‘Where two or more defendants obtain property jointly, each is to be regarded as obtaining the whole of it. Where property is received by one conspirator, what matters is the capacity in which he receives it, that is, whether for his own personal benefit, or on behalf of others, or jointly on behalf of himself and others. This has to be decided on the evidence: Green, para 15. By parity of reasoning, two or more defendants may or may not obtain a joint pecuniary advantage; it depends on the facts.’
Judges:
Toulson LJ
Citations:
[2008] Crim LR 989, [2008] EWCA Crim 1736, [2009] 1 Cr App R (S) 80
Links:
Jurisdiction:
England and Wales
Cited by:
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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing
Updated: 18 August 2022; Ref: scu.272289