Morphy, R v

For confiscation under section 71(4) of the Criminal Justice Act 1988, the defendant must have obtained the property in an ordinary and real sense. The special meaning of “obtains” applicable to a theft offence under section 15 of the Theft Act 1968 does not govern a different predicate offence. Control over prostitutes does not necessarily establish that a brothel keeper obtained all sums paid by clients. A confiscation order based on those sums requires a properly directed finding that the keeper received the whole fee, rather than merely a daily charge paid by the prostitutes.

Sandra and Gerald Morphy pleaded guilty at Aylesbury Crown Court to two offences of keeping a disorderly house. They operated a brothel in which prostitutes paid them £30 per day for facilities, while clients ordinarily paid the prostitutes directly.

The sentencing judge made confiscation orders under section 71 of the Criminal Justice Act 1988. He treated the Morphys as having obtained the whole of the payments made by clients to the prostitutes. Sandra Morphy’s appeal against the order was referred by the Criminal Cases Review Commission. Gerald Morphy’s stayed application was also placed before the court.

The central issue was whether the Morphys had obtained the clients’ payments for the purposes of section 71(4).

Decision

1. The court allowed Sandra Morphy’s appeal to the stated extent. It granted Gerald Morphy leave to appeal and treated the hearing as his appeal. The confiscation orders were quashed and replaced by orders of £24,030 against each appellant, with terms of 18 months’ imprisonment in default.
2. Section 71(4) of the Criminal Justice Act 1988 required an obtaining by the defendant which could fairly be described as such. The court adopted the approach of R v Gokal. The special statutory meaning of “obtains” in a section 15 offence under the Theft Act 1968 did not supply a general definition for section 71(4).
3. R v Rees was of no assistance because it concerned an offence under section 15 of the Theft Act 1968. There was no reason to import that offence-specific definition into confiscation proceedings founded on keeping a disorderly house.
4. The court did not rule out a finding that sufficiently extensive control could show that a brothel keeper obtained the whole fee and paid a proportion to the prostitute. But that was not the sentencing judge’s approach, and the evidence as presented did not support the Crown’s agency argument. The judge had conflated control with benefit. Control might permit the inference, but did not compel it.
5. The calculation based on all client payments was therefore flawed. The agreed benefit based on the £30 daily payments was £48,060, leading to the substituted figure of £24,030 for each appellant. Any assertion that assets were unavailable had to be pursued through the proper certificate procedure in the lower court, rather than on this appeal.

• Court of Appeal (Criminal Division) — Sandra Morphy’s sentence appeal was referred by the Criminal Cases Review Commission. Gerald Morphy’s stayed application was considered with it. The court allowed both appeals to the stated extent and substituted confiscation orders of £24,030 each.
• Earlier appellate proceedings — The appellants’ original applications for leave to appeal against the confiscation orders were refused. Gerald Morphy’s application was later stayed.
• Crown Court at Aylesbury — The appellants pleaded guilty to two offences of keeping a disorderly house and received concurrent eight-month sentences. The court made confiscation orders under section 71 of the Criminal Justice Act 1988.