Davies v London Borough of Waltham Forest

For confiscation purposes, the statutory concept of benefit is not confined to the proceeds of a completed sale. Property obtained in connection with an offence may constitute benefit even where the offence consists of possessing counterfeit goods or equipment with a view to gain.

The court should give section 71(4) of the Criminal Justice Act 1988 its ordinary meaning. Where falsely marked goods have acquired value through the criminal conduct, their seizure before sale does not prevent a finding of benefit. A transfer of property into a spouse's name falls outside the statutory gift provisions if the evidence shows that no genuine beneficial gift was intended.

The appellant pleaded guilty at Snaresbrook Crown Court to 13 specimen counts concerning counterfeit goods, packaging material and computer discs, contrary to section 92 of the Trade Marks Act 1994. The sentencing judge assessed the turnover of the illegal business at £1 million. The imprisonment sentence was not challenged.

In confiscation proceedings, the judge treated the £1 million as benefit and found that the appellant held the entire beneficial interest in a house legally registered in his former wife's name. The appellant appealed, contending that possession offences committed only with a view to gain could not be qualifying offences, and that the house was a gift outside section 74(10) of the Criminal Justice Act 1988.

1. Appeal dismissed. Lord Justice Waller, giving the judgment of the court, held that the judge had jurisdiction to make the confiscation order and was entitled to find that the appellant had a 100 per cent beneficial interest in the house.

2. Section 71(4) of the Criminal Justice Act 1988 provides that an offender benefits if he obtains property as a result of, or in connection with, the offence. Those words were to be applied without an additional requirement that the defendant must have completed a sale or otherwise realised a profit.

3. The possession counts under section 92 of the Trade Marks Act 1994 alleged possession with a view to gain, rather than completed sales. That did not prevent benefit. The goods had been enhanced by the false trade marks, or the equipment enabled false marks to be applied. They were therefore property obtained in connection with the offences. Their seizure before sale was immaterial, consistently with R v David Cadman Smith [2002] 2 Cr App R(s) 144 and R v Wilkes [2003] EWCA 848.

4. There were accordingly at least two qualifying offences for section 72AA. In light of the concession below, the benefit figure was properly £1 million.

5. Section 74(10) applies only to a genuine gift. Although the appellant's former wife was the registered owner of the house, the judge was entitled to examine the parties' true intention. He found that she had not contributed to its purchase and that the transfer was not a genuine gift. The property was therefore wholly the appellant's, and the statutory gift provisions did not arise.

• Court of Appeal (Criminal Division) — In [2003] EWCA Crim 3110, dismissed the appeal against the confiscation determination.
• Snaresbrook Crown Court — Following guilty pleas to specimen counterfeit-trade-mark offences, Judge Bing assessed benefit at £1 million and made the confiscation determination. No lower-court citation was stated.