Shabir v R.

For confiscation purposes, a defendant who obtains a money transfer by deception obtains the whole transfer, even if he was legally entitled to most of the sum claimed. Benefit is not confined to net gain or to the dishonest excess.

However, confiscation proceedings may be stayed as an abuse of process where their use is truly oppressive. The power must be exercised sparingly. A striking disparity between the fraud and the order is not enough where criminal-lifestyle provisions legitimately apply. It was oppressive, on the exceptional agreed facts, to rely on the form of the charges to trigger those provisions and produce a vastly inflated order under the Proceeds of Crime Act 2002.

The appellant, a pharmacist, was convicted of six offences of obtaining money transfers by deception after dishonestly inflating monthly prescription-payment claims. The dishonest excess was accepted to be no more than £5,000 and was assessed for sentencing purposes at £464.

Leeds Crown Court nevertheless treated the total payments made under the six claims, £179,731.97, as criminal benefit. That conclusion engaged the criminal-lifestyle provisions and statutory assumptions, resulting in a confiscation order of £212,464.17.

On appeal, the appellant challenged both the calculation of benefit and the Crown's decision to pursue confiscation on that basis. The central issues were whether benefit was confined to the inflated excess and whether the proceedings were oppressive.

1. Appeal allowed. The court accepted the Crown's construction of benefit but held that the confiscation proceedings should have been stayed for abuse of process. It quashed the confiscation order of £212,464.17 and substituted a compensation order of £464.

2. The money transfers credited to the appellant's account were incorporeal property. Following the ordinary meaning of obtaining, the appellant obtained the total payments made in response to his dishonestly inflated claims. His entitlement to the great bulk of each payment did not sever the causal connection between the deception and the payment. Under sections 76(4), 76(5) and 76(7) of the Proceeds of Crime Act 2002, benefit was therefore £179,731.97, not merely the inflated excess. The court treated R v Moran [2001] EWCA Crim 1770 as confined to the different case of a pecuniary advantage gained by avoiding an outgoing payment.

3. Once the Crown invokes confiscation, the statutory process and calculation are mandatory. The Crown nevertheless makes an individual decision whether to invoke it and on what basis. The court retains a jurisdiction to stay confiscation proceedings where they are oppressive and thus an abuse of process. That jurisdiction is exceptional and cannot be used merely because a judge disagrees with the prosecution's policy choice or because confiscation exceeds net criminal profit.

4. A large disparity between the proved gain and the confiscation order does not itself establish oppression if criminal-lifestyle provisions properly apply. Those provisions are intended to extend confiscation beyond the offences of conviction through the section 10 assumptions. But it was oppressive here to rely on the form of counts alleging whole money transfers to cross the £5,000 threshold, when the admitted fraud was only a few hundred pounds and charges reflecting that limited fraud would not have done so. The assumptions were consequently irrelevant.

5. The court also made a recovery of defence costs order for the Crown Court proceedings. It made no such order for the successful appeal.

• Court of Appeal (Criminal Division): Allowed the appeal in [2008] EWCA Crim 1809. It quashed the confiscation order and substituted compensation of £464.
• Leeds Crown Court: Following convictions for six offences of obtaining money transfers by deception, made a confiscation order of £212,464.17. No reported citation is stated.