CPS Nottinghamshire v Rose

Stolen goods are criminal property under Proceeds of Crime Act 2002 where the thief acquires a right to possess them. That right is an interest in property, even though it is vulnerable to the true owner’s superior title.

For confiscation, benefit from stolen goods is their incoming market value: the amount it would have cost the offender to obtain them lawfully, or their economic value to the loser. It is not the value of the offender’s bare possessory interest. Sections 79 and 80 apply to calculating benefit, but section 79(3) does not reduce that value in the case of stolen goods. Recovery and restoration of the goods to their true owner do not reduce the benefit figure.

Two related matters under the Proceeds of Crime Act 2002 were heard together.

Gareth Whitwam had been convicted at Bradford Crown Court of acquiring criminal property contrary to section 329(1). He sought leave to appeal on the ground that a thief or handler did not obtain an interest in stolen goods and that the goods were therefore not criminal property.

Kevin Rose had been convicted at Nottingham Crown Court of possessing criminal property contrary to section 329(1)(c). The Crown appealed his confiscation order. The judge had assessed his benefit at £8,272.50, excluding the value of stolen trailers that had been recovered and returned to their owners. The Crown contended that his benefit was the agreed total value of all the stolen property, £27,272.50.

1. The Crown’s appeal in Rose was allowed and the confiscation order was varied to £27,272.50. Whitwam’s application for leave to appeal against conviction was formally refused.

2. A thief obtains property for the purposes of section 340(10)(a) of the Proceeds of Crime Act 2002. A right to possession is an interest in property under section 340(10)(d). Accordingly, stolen goods constitute the thief’s benefit from criminal conduct and can be criminal property. The remaining issue under section 340(3)(b) is whether the alleged offender knew or suspected that the goods represented that benefit. On Whitwam’s trial, that issue had properly been left to the jury.

3. The court observed that charging decisions normally rest with the CPS. It shared the concern that a simple theft or handling case may not ordinarily call for a money-laundering charge under Part 7, but held that the material did not justify a final view on the individual charging decisions. The court saw no flaw in the relevant prosecutorial guidance.

4. For Rose, sections 79 and 80 apply to the calculation of benefit. The court rejected the Crown’s argument that they concern only the realisable amount. Section 80 applies without qualification to valuing property obtained from criminal conduct, and section 80(4) brings section 79 into that exercise.

5. The market value of stolen property obtained by a thief or handler is its incoming value: what it would have cost the offender to obtain the goods lawfully, or their economic value to the person deprived of them. Section 79(3), concerning the market value of a person’s interest where another has an interest, did not require valuation of Rose’s bare possessory title. In this context, it addressed a different situation.

6. The subsequent recovery and restoration of stolen goods to their true owners did not diminish Rose’s benefit. The statutory scheme is punitive and deterrent, rather than compensatory. The judge had therefore erred by excluding usable recovered property from the benefit calculation.

• Court of Appeal (Criminal Division). In [2008] EWCA Crim 239, the court allowed the Crown’s appeal against Rose’s confiscation order and substituted £27,272.50. It refused Whitwam leave to appeal against conviction.

• Crown Court at Nottingham. Rose was convicted of three offences contrary to section 329(1)(c) of the Proceeds of Crime Act 2002. A confiscation order of £8,272.50 was made.

• Crown Court at Bradford. Whitwam was convicted of acquiring criminal property contrary to section 329(1) of the Proceeds of Crime Act 2002.