Sheikh, R. v

For serious and sustained commercial trade-mark offending, immediate custody may remain necessary despite strong personal mitigation, including good character and valuable employment. A sentence may properly reflect the full course of dishonest trading where that was the factual basis on which the case was conducted.

On confiscation, the Crown must establish criminal benefit to the civil standard. An appellate court will not interfere with a judge’s assessment of competing expert evidence unless it is irrational. Time allowed to satisfy confiscation and costs orders may be extended where a realistic sale of property requires it.

The appellant pleaded guilty at Snaresbrook Crown Court to six offences of using trade marks without authority, contrary to section 92 of the Trade Marks Act 1994. A previous appeal against conviction, based on alleged inadequate advice about confiscation, had been dismissed and the case remitted for sentence and confiscation proceedings.

Following a contested hearing, the Crown Court imposed concurrent sentences of 12 months’ imprisonment and made a confiscation order under section 71 of the Criminal Justice Act 1988 for £84,548, together with a costs order. The appellant challenged the sentence, the factual basis on which it was imposed, the assessment of criminal benefit, and the short time allowed for payment.

1. The appeal succeeded only as to time for payment. The court varied the orders so that both the confiscation amount and £25,000 costs were payable within 12 months from 15 February 2005. The short period originally allowed created practical difficulty in achieving a proper sale price for the house from which payment would have to be made.
2. The appeal against sentence was dismissed. The offending involved serious commercial trading in counterfeit goods over approximately two years. The court held that the appellant could not have been surprised that sentencing addressed that sustained dishonest trading, since his evidence and expert case in the confiscation proceedings had addressed the scale of the business over that period.
3. Immediate custody was plainly justified. The 12-month sentence was below the ordinary level for non-minor offending of this kind and already reflected substantial personal mitigation. The appellant’s good character, charitable work and skills as a science teacher were not exceptional circumstances capable of justifying suspension. He was also entitled to little credit for his guilty plea after seeking to withdraw it.
4. The appeal against the confiscation order was dismissed. The relevant question was whether the Crown had proved, to the civil standard, that the appellant had benefited from criminal conduct. The judge was entitled, after extensive oral and written expert evidence, to accept an assessment that substantial illicit sales formed part of the agreed turnover. That approach was not irrational and may have been generous to the defendants.

• Court of Appeal (Criminal Division): varied the time for payment but otherwise dismissed the appeal.
• Crown Court: imposed concurrent 12-month sentences, a confiscation order of £84,548 under section 71 of the Criminal Justice Act 1988, and £25,000 costs.
• Earlier Court of Appeal (Criminal Division): dismissed the appeal against conviction and remitted the matter to the Crown Court for sentence and confiscation proceedings.