Crown Prosecution Service (Respondents) v Jennings (Appellant)

For confiscation purposes, a person obtains property only where it is obtained by that person, alone or jointly. This ordinarily requires ownership and connotes a power of disposition or control, which may include directing payment or conveyance to another person. Merely contributing substantially to the acquisition of property by someone else is insufficient.

The confiscation regime deprives offenders of what they have gained, or its equivalent. It does not impose a fine measured by property they never obtained. At the restraint stage, however, the court makes only a preliminary and provisional assessment of the matters that will be determined at the confiscation hearing.

The appellant was an employee of a company used to conduct an advance-fee fraud. The prosecution alleged that he and each co-conspirator had benefited from the entire proceeds, exceeding £584,000. The appellant maintained that he had received no more than about £50,000.

Forbes J made a restraint order under section 77(1) of the Criminal Justice Act 1988. Leveson J refused to discharge it. The Court of Appeal dismissed the appellant's appeal in [2005] EWCA Civ 746, [2006] 1 WLR 182. The appellant appealed to the House after his conviction, while confiscation proceedings remained postponed.

The central issue was whether a person “obtains” property under section 71(4) merely by contributing non-trivially to its acquisition from the crime, or whether the property must be obtained by that person.

1. Appeal dismissed unanimously. The Appellate Committee comprised Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood. It delivered a single considered opinion. Although the appellant successfully criticised the Court of Appeal's construction of section 71(4) of the Criminal Justice Act 1988, sufficient material supported the restraint order and its continuation.

2. The Committee treated the relevant reasoning in R v May [2008] UKHL 28 as incorporated. The purpose of confiscation is to deprive a defendant of the product of crime, or its equivalent, rather than to impose a fine. A defendant therefore cannot be deprived of property which the defendant never obtained, or its equivalent.

3. Section 71(4) requires property to have been obtained by the defendant. Ordinarily, this means that the defendant acquired ownership, alone or jointly. Ownership will ordinarily connote a power of disposition or control, including a power exercised by directing payment or conveyance to another person. Physical possession or having one's hands on the property is unnecessary.

4. The Court of Appeal's causation formulation was unhelpful and not entirely accurate. A person's acts may contribute significantly and non-trivially to property being obtained from a crime without that person obtaining it. Instrumentality in getting property out of the crime is therefore insufficient by itself. Whether the appellant obtained the proceeds jointly with his co-defendant remained to be decided in the confiscation proceedings.

5. At the restraint stage, the court must make a preliminary and provisional judgment about the matters ultimately to be resolved at the full confiscation hearing. The appellant accepted that he had benefited, although the extent remained disputed. The available material was sufficient to justify the restraint order.

6. The corporate-veil argument failed. The order did not restrain company property on the footing that it was the appellant's realisable property. Moreover, incorporation did not prevent examination of acts undertaken through the company where those acts had resulted in conviction or a guilty plea. The appellant's own reliance on the company's internal allocation of responsibility was inconsistent with treating the relevant conduct solely as that of the company.

The parties were invited to make written submissions on costs within 14 days.

1. House of Lords: Dismissed the appeal unanimously in [2008] UKHL 29. It rejected the Court of Appeal's interpretation of “obtains” but upheld the restraint order.
2. Court of Appeal: Laws, Longmore and Lloyd LJJ dismissed the appeal from Leveson J's refusal to discharge the restraint order: [2005] EWCA Civ 746, [2006] 1 WLR 182.
3. High Court: Leveson J refused to discharge the restraint order made without notice by Forbes J under section 77(1) of the Criminal Justice Act 1988.