Sivaraman, R. v

For confiscation under the Proceeds of Crime Act 2002, the court must identify the value of the property or pecuniary advantage obtained by the individual defendant. It is not a fine and does not automatically measure either net profit or criminal culpability. A conspirator’s significant contribution to an offence does not establish that he obtained the benefit derived by another conspirator or employer. The factual inquiry includes the capacity in which the defendant acted. An employee who receives illicit goods solely for an employer may obtain only his wage or agreed payment, unless the evidence shows that he obtained the relevant advantage personally or jointly.

The appellant pleaded guilty at Lincoln Crown Court to conspiracy fraudulently to evade excise duty on fuel. He admitted accepting eight to ten deliveries of illicit diesel while employed at a service station and receiving £15,000 as his share of the sale proceeds.

The prosecution contended that his benefit equalled the £128,520 duty avoided on nine deliveries. The judge accepted that figure as benefit but made a confiscation order limited by the appellant’s available amount. The appeal challenged the assessment of benefit. The central issue was whether an employee who received illicit fuel for his employer necessarily obtained the same pecuniary advantage as the employer who bought and sold it.

1. Appeal allowed. The judge’s finding that the appellant had benefited by £128,520 was set aside. The court quashed the confiscation order and substituted an order for £15,000. As more than that sum had apparently been paid, no default term of imprisonment was required.
2. Under the Proceeds of Crime Act 2002, confiscation is directed to the benefit obtained by the particular defendant. Following the principles stated in R v May [2008] UKHL 28, Jennings v CPS [2008] UKHL 29, and R v Green [2008] UKHL 30, the court had to apply the ordinary statutory language to the facts. Benefit is the gross value of property or a pecuniary advantage obtained, rather than net profit, but a defendant may materially contribute to an advantage without obtaining it.
3. The decisive factual question was the capacity in which the appellant received and supervised the fuel deliveries. A conspirator may jointly obtain property or a pecuniary advantage with another, but that depends on the evidence. The prosecution had not alleged that the appellant was a joint purchaser or trader. The judge had in substance found that he acted as an employee, and it would have been wrong for the Court of Appeal to make the contrary finding.
4. The appellant’s level of participation could increase his proper sentence, but it did not determine his confiscation benefit. There is no rule that every conspirator obtains the whole benefit obtained by an abstract entity described as the conspiracy. Nor did the principle concerning a person who evades a liability personally owed to the Revenue govern this different scheme, in which the employer, not the appellant, obtained the trading advantage.

• Court of Appeal (Criminal Division): Allowed the appeal and substituted a confiscation order of £15,000: [2008] EWCA Crim 1736.
• Crown Court at Lincoln: Following the appellant’s guilty plea, imposed a confiscation order of £59,365 on 22 January 2007, with imprisonment in default.