Newman, R v

For confiscation under Proceeds of Crime Act 2002, a defendant obtains property when it passes into his hands, even if he does not retain it. A cheque is property. Where dishonestly procured cheques were in fact honoured, their value was their face value rather than the value of the consideration later received by the defendant.

A defendant may also obtain property transferred to another under a prior arrangement where that person acts as the defendant’s nominee or conduit, or holds it for the defendant and another jointly. The court therefore assesses the value obtained through the criminal conduct, not merely the defendant’s eventual personal share.

The appellant pleaded guilty at Maidstone Crown Court to two thefts of £15,000 from HFC Bank. In one instance he provided a fraudulently completed cheque to a car dealer and received a Mercedes. In the other, he created a fictitious loan, produced a cheque and gave it to a relative, with whom he intended to share the proceeds.

The Crown Court made a confiscation order for £22,000 under the Proceeds of Crime Act 2002, proceeding on the basis that the appellant did not have a criminal lifestyle and had benefited from his particular criminal conduct. On appeal, he contended that his benefit was limited to the car and the cash he personally received, rather than the £30,000 represented by both cheques.

1. Appeal dismissed. The appellant obtained property worth £30,000 through the two thefts. The confiscation order was therefore correctly made under the Proceeds of Crime Act 2002.

2. Under section 76(4), receipt of property is sufficient to constitute obtaining it. Retention is unnecessary. Each cheque passed through the appellant’s hands before he gave it to the intended recipient. He therefore obtained each cheque, which was property, and had an interest in it while it was in his possession.

3. The cheques were worth their face value. They appeared valid and were honoured for £15,000 each. The fact that one bore a forged signature, and that the appellant ultimately received a car worth less than its face value, did not reduce the value of the property obtained. The reasoning in Wille (1988) 86 Cr App R 296 and Hilton [1997] 2 Cr App R 445, together with the valuation approach noted in R v Rose and Whitwam [2008] EWCA Crim 239, supported that conclusion.

4. There was an independent basis for the same result. The recipients received the cheques and funds under prior arrangements as the appellant’s nominees or conduits, or for their joint benefit with him. The appellant thus obtained an interest in the funds even after their transfer.

5. The court did not decide the proposed construction of section 84(2)(b). That issue did not arise on the facts. Had it been necessary, the court would have awaited the House of Lords’ decision in Jennings v CPS [2005] EWCA Civ 746.

• Court of Appeal (Criminal Division) — dismissed the appellant’s challenge to the confiscation order: [2008] EWCA Crim 816.
• Crown Court at Maidstone — following guilty pleas to two thefts, HH Judge MacDonald QC made a confiscation order of £22,000, with 18 months’ imprisonment in default.