Ilyas v Aylesbury Vale District Council

For the extended confiscation assumptions in Criminal Justice Act 1988, property transferred to a defendant may be treated as obtained in connection with qualifying criminal offences even though others committed them and the defendant’s knowledge is not required to trigger the assumption. The statutory discretion and serious-risk-of-injustice safeguards remain essential. A defendant’s ignorance of the property’s criminal origin will normally make inclusion unjust unless the defendant deliberately ignored the obvious or acted recklessly.

A knowing participant who receives legal title to land through a fraud ordinarily obtains its full value for confiscation purposes. This may be so although others claim beneficial interests. On a subsequent transfer for inadequate consideration, the statutory gift provisions require the value of the gift to reflect the proportion transferred gratuitously.

Shaheen Ilyas was convicted of two benefit-fraud offences after failing to disclose that she had become the registered proprietor of a freehold property and later falsely stated that she owned no land or property. The property had been transferred into her name as part of a fraudulent mortgage arrangement involving her husband’s family. It was later transferred to family members, who discharged the mortgage in her name.

The Crown Court at Aylesbury treated the property as criminal benefit and as a gift caught by the confiscation regime in Criminal Justice Act 1988. It made a confiscation order for £225,000. The appeal concerned whether the property was benefit obtained by the appellant, its value, whether the statutory safeguards should have been used, and the amount capable of realisation after the later transfer.

1. Appeal allowed in part. The court reduced the confiscation order from £225,000 to £172,500. Apart from that correction, it upheld the judge’s conclusions.

2. Section 72AA(4)(a) of the Criminal Justice Act 1988 did not require the Crown to prove that the appellant knew that the transfer of the property was part of a fraud. Its language encompassed offences committed by others. That construction did not produce the suggested unfairness because the court retained both a discretion whether to make the assumptions and a duty not to make a particular assumption where it would create a serious risk of injustice.

3. The appellant’s knowledge was nevertheless highly material to the statutory safeguards. Ordinarily, property of criminal origin which a defendant had no means of recognising should not be included in benefit, save possibly where the defendant shut their mind to the obvious or was reckless. The trial judge’s unchallengeable findings showed, however, that this appellant knowingly lent herself to the fraudulent scheme. There was therefore no basis to exclude the property from her benefit.

4. The appellant obtained the full value of the property. A person who receives legal title through a fraudulent scheme will generally obtain the property for confiscation purposes, particularly where that person participates in the fraud. The degree of control remains fact-sensitive, but legal title normally carries control. The possibility that family members retained beneficial interests did not reduce the value obtained by the appellant. The court drew support from R v May (2008) UKHL 28, which reviewed the principle that the same property may be obtained by more than one person.

5. The later transfer was a caught gift. Although the property was worth £200,000 when transferred, the recipients assumed the £100,000 mortgage debt. Under section 74(12), the appellant was therefore treated as making a gift of one half of the property. Following the agreed increase in value, the gift was worth £172,500 rather than £225,000.

6. The court rejected the contention that the order exposed the appellant to an unjust risk of imprisonment for non-payment. The statutory enforcement route permitted recovery against the current holders of the property, and any unrecovered balance could be addressed by a certificate of inadequacy.

• Court of Appeal (Criminal Division): in [2008] EWCA Crim 1303, allowed the appeal only to reduce the confiscation order from £225,000 to £172,500.
• Crown Court at Aylesbury: made a confiscation order of £225,000 following convictions for two benefit-fraud offences.