Olubitan v R.

Under Criminal Justice Act 1988 section 71, a confiscation order requires evidence that the particular offender obtained property, or derived a pecuniary advantage, from relevant criminal conduct. Membership of a conspiracy does not itself make a late-joining conspirator liable for a proportion of all proceeds previously obtained by others.

A court may draw robust and fair inferences about the division of criminal proceeds where the evidence supports them and convicted conspirators provide no explanation. It must nevertheless make findings on the civil standard of proof. It cannot attribute benefit where a proper evaluation of the evidence shows that the offender obtained nothing.

The appellant was convicted at Southwark Crown Court of conspiracy to defraud. The jury’s verdict established that he joined the existing conspiracy on 7 December 2000. He was sentenced to imprisonment and later made subject to a confiscation order under section 71 of the Criminal Justice Act 1988.

The earlier frauds had obtained computer parts and mobile telephones worth £246,021. The appellant was not involved in them. His only participation concerned a later dummy consignment, which the police intercepted before the conspirators obtained any goods. The Crown Court nevertheless attributed half of the earlier proceeds to him.

The appeal concerned whether the evidence permitted a finding that he had benefited from his relevant criminal conduct.

1. Appeal allowed. The confiscation order was quashed. There was no evidence on which the judge could properly find, on the balance of probabilities, that the appellant had benefited from relevant criminal conduct.

2. Section 71(1A), (4) and (5) of the Criminal Justice Act 1988 require factual findings that the offender obtained property as a result of or in connection with the offence, or derived a pecuniary advantage. The appellant joined the conspiracy only on 7 December 2000. The earlier consignments had already been obtained, and the only consignment with which he was involved was intercepted. There was no evidence of any payment to him, including an advance payment from anticipated proceeds.

3. The sentencing judge had erred in treating the appellant’s later entry into the conspiracy as making him liable for all its consequences in the confiscation proceedings. That proposition was correct only for criminal liability for the conspiracy charged. It did not establish that he had obtained the proceeds secured before he joined it.

4. R v McKechnie [2002] EWCA Crim 3161 did not compel a different result. It permits robust, fair inferences about the allocation of proceeds where there is evidence of benefit to conspirators and no reliable account of its division. In an appropriate case, equal division among defendants may be a fair inference. It does not permit an order where the evidence, properly assessed, demonstrates that the defendant obtained no property and derived no pecuniary advantage.

• Court of Appeal (Criminal Division): Allowed the appeal against the confiscation order and quashed it.
• Southwark Crown Court: The appellant was convicted of conspiracy to defraud and was made subject to a confiscation order under section 71 of the Criminal Justice Act 1988.