Fedee, R v

Where the statutory duty to make a confiscation order under the Proceeds of Crime Act 2002 applies, the court must make the order once it has determined the defendant’s benefit and recoverable amount. It cannot set off the value of criminal property recovered by the police or make a nil order on grounds of fairness.

A proposed apportionment between participants cannot reduce the order where there is no evidence identifying the other participants, their number or their respective roles. The court will not adjourn merely to await a pending appeal where no identified issue in that appeal could assist the appellant.

The appellant pleaded guilty at Canterbury Crown Court to 12 offences of facilitating the acquisition, retention, use or control of criminal property, contrary to section 328(1) of the Proceeds of Crime Act 2002. He had arranged the export of 12 stolen high-value cars. All were recovered before shipment.

The Crown Court assessed his benefit at £273,400, being the total value of the cars, and made a confiscation order for his agreed realisable assets of £53,745.98. The appellant appealed, contending that the order should have been nil, that benefit should reflect his own receipts, or that benefit should be apportioned among other participants.

1. Appeal dismissed. The Crown Court had correctly made a confiscation order for the agreed recoverable amount.

2. Under section 6 of the Proceeds of Crime Act 2002, the court was obliged to make the order once benefit and recoverable amount had been established. Section 6(6), which can make that obligation discretionary where a victim has commenced or intends civil proceedings, was admittedly not engaged. The recovery of all the cars did not permit an offset against the recoverable amount or justify a nil order.

3. The appellant’s abandoned challenges were plainly inconsistent with R v Wilkes [2003] EWCA Crim 848 and R v Farquhar [2008] All ER (D)140. The judge had correctly treated the total value of the criminal property as the benefit, rather than limiting benefit to the appellant’s claimed export fees.

4. The apportionment ground also failed. Even if the pending House of Lords appeal in May, Lawrence, Fowles, Bravard and Stapleton might alter the then-current approach to apportionment, no apportionment could sensibly be made here. There was no information about the number or identities of other participants, or their roles in the enterprise. It was not acceptable to assume that others played a greater part and then measure the appellant’s benefit by what he said he received.

5. The court allowed three months from the date of judgment for payment. The default term would take effect if payment was not made.

• Court of Appeal (Criminal Division): Dismissed the appeal against the confiscation order and allowed three further months for payment.

• Canterbury Crown Court: Following guilty pleas to 12 offences under section 328(1) of the Proceeds of Crime Act 2002, imposed concurrent four-year sentences and later made a confiscation order of £53,745.98.