Sharma v R.

For confiscation under section 71 of the Criminal Justice Act 1988, an offender benefits when he obtains criminal property. Money received into an account under the offender’s sole control is obtained by him, even if he later distributes it to fellow criminals. The benefit is not confined to retained profit, and the aggregate benefits of several offenders may exceed the victim’s loss where each separately received criminal proceeds.

Once benefit is correctly calculated, a full confiscation order within the offender’s realisable assets is not disproportionate merely because others may also be ordered to repay sums received. A trial judge may assess whether a witness needs an interpreter and may permit assistance when it becomes necessary.

The appellant was convicted of conspiracy to defraud Pentax UK Ltd. In the Petra Scientific phase of the fraud, approximately £179,000 paid by Pentax entered a bank account opened and solely controlled by him. He appealed a confiscation order for that amount made by His Honour Judge Karsten QC in the Crown Court at Middlesex Guildhall.

He contended that the benefit should be reduced for parts and services allegedly supplied, that his mother had been unfairly restricted in using an Urdu interpreter, and that the order was disproportionate because co-conspirators had also received portions of the proceeds. The central issue was whether section 71 required his benefit to be assessed by the full amount he obtained or only by the amount he retained.

1. Appeal dismissed. The judge was entitled, on the balance of probabilities, to find that no parts or services had been supplied to Pentax. His conclusion was open on the evidence and was not undermined on appeal.
2. A decision on whether a witness requires an interpreter is within the trial judge’s broad discretion in conducting the hearing. The judge could assess the witness’s ability to understand and answer questions rather than accept an assertion that interpretation was necessary. The appellant’s mother was permitted an interpreter when she became unable to proceed without one, including on the central matters. The hearing was therefore fair.
3. Under section 71(4) of the Criminal Justice Act 1988, the appellant obtained the full sum paid into the account which he alone controlled. The criminal confiscation regime does not import trust principles so as to treat money received for later distribution as never having been obtained by the recipient. The court followed R v Patel [2000] 2 Cr.App.R(S) 10 and R v Smith (David) [2002] 1 WLR 54: obtaining, rather than retaining, is decisive.
4. The appellant’s later transfers to co-conspirators did not reduce his benefit. Where offenders did not jointly obtain the proceeds, each may be treated as benefiting to the extent of money individually received. The aggregate benefit figures are not capped by the victim’s loss. R v May and Others [2005] EWCA Crim 97, which concerned jointly obtained property and possible apportionment, did not govern this materially different situation.
5. As the benefit was correctly calculated and was below the appellant’s realisable assets, section 71(6) required an order for the full benefit. The possibility that separate orders might in aggregate exceed the victim’s loss did not make this order disproportionate under Article 8 or Article 1 of Protocol 1 to the European Convention on Human Rights.

• Court of Appeal (Criminal Division): dismissed the appeal against the confiscation order.
• Crown Court at Middlesex Guildhall: His Honour Judge Karsten QC made a confiscation order under section 71 of the Criminal Justice Act 1988. No citation for that decision was stated.