Wilkes, R. v

A defendant benefits under section 71(4) of the Criminal Justice Act 1988 when he obtains property as a result of, or in connection with, an offence. The provision adds no requirement that he retain, realise or profit from the property. Recovery by the police after the offence does not prevent the benefit arising.

For the section 72AA confiscation regime, qualifying offences trigger the statutory assumptions regardless of whether those offences ultimately prove successful. The court has an unfettered discretion whether to make the assumptions, and must avoid a serious risk of injustice by declining or disapplying them where appropriate. The fact that property from the trigger offences was recovered does not itself make the assumptions unjust.

The appellant was convicted at Luton Crown Court of aggravated burglary and related offences. A confiscation order of £41,380 was later made under section 71 of the Criminal Justice Act 1988, with a consecutive default term.

He appealed only against that order. He contended that he had obtained the property involved in two qualifying offences only momentarily because it was recovered, so that he had not benefited from those offences. Alternatively, he submitted that the statutory assumptions under section 72AA should not have been made, or should have been disapplied because their use created a serious risk of injustice.

The central issue was whether recovery of the property prevented the offences from being qualifying offences or made the statutory assumptions unfair.

1. Appeal dismissed. The appellant benefited from the aggravated burglary and handling offences. Section 71(4) of the Criminal Justice Act 1988 means what it says. Once an offender has obtained property through an offence, benefit has arisen. Police intervention preventing the offender from realising the property, or the later recovery or destruction of it, is irrelevant.

2. Per Gross J, giving the court’s judgment, this conclusion was put beyond argument by R v Smith (David Cadman), [2001] UK HL 68. That decision was applicable to section 71(4), not merely section 71(5), and showed the close relationship between those provisions. The qualifying offences therefore triggered section 72AA.

3. The statutory scheme deliberately permits confiscation based on assumptions once the qualifying-offence threshold is met. The success of the trigger offences is immaterial. Property and expenditure brought into account under the assumptions need not be referable to a particular offence or to the proceeds retained from a successful trigger offence. This does not violate Convention rights because the court may decline to make assumptions, or disapply an assumption where there would be a serious risk of injustice.

4. The judge had ample material to make and retain the assumptions: the appellant’s dishonesty record, a lifestyle beyond his overt state-benefit income, banked cash and cash found in the garden. The judge was entitled to find no serious risk of injustice. There was no basis for appellate interference; the Court of Appeal would have exercised the discretion in the same way.

• Court of Appeal (Criminal Division): Dismissed the appeal against the confiscation order: [2003] EWCA Crim 848.
• Crown Court at Luton: Following the appellant’s convictions, HHJ Greenwood made a confiscation order of £41,380 under section 71 of the Criminal Justice Act 1988.