Wilkinson, R v

For confiscation under the Proceeds of Crime Act 2002, a defendant benefits from criminal conduct only if he has obtained property or a pecuniary advantage. Temporary physical possession for a limited purpose does not amount to obtaining property where the defendant has no right to possess it and no owner's power of control or disposition.

What happens to property after it has been obtained does not affect the benefit calculation. That principle cannot replace the prior requirement that the defendant obtained the property at all. A court may stay confiscation proceedings for abuse of process only sparingly and in cases of true oppression.

The appellant pleaded guilty to possessing criminal property contrary to section 329 of the Proceeds of Crime Act 2002. He had briefly received a car to test-drive from a prospective seller. Although he had come to suspect that it was stolen, he intended to return it and did not intend to buy it.

The Crown Court made a confiscation order for the car's market value, £15,558.84, and then imposed a six-month conditional discharge. The appellant appealed, principally contending that he had obtained no property and therefore received no benefit from his offending. He also alleged abuse of process and challenged the compatibility of confiscation with the conditional discharge.

1. Appeal allowed. The confiscation order was quashed. The appellant had not obtained the car within section 76(4) of the Proceeds of Crime Act 2002.

2. The court applied the approach in May, [2008] UKHL 28, and Jennings, [2008] UKHL 29. Whether property has been obtained depends on ordinary principles of ownership and entitlement. Ownership, or a right of possession carrying control or a power of disposition, will ordinarily suffice. Mere custody or temporary possession for a limited purpose will not.

3. The appellant had no right to possess the car save for the restricted purpose of test-driving it. He was obliged to return it unless he chose to buy it. He had no greater control than a courier or custodian and did not exercise any owner's rights. The fact that later dealings with acquired property are ordinarily irrelevant did not answer the prior question whether he had acquired it. The reasoning in Allpress, [2009] EWCA Crim 8, confirmed that temporary possession without a right to possess confers no benefit for this purpose.

4. The court would have rejected the abuse-of-process ground. The jurisdiction to stay confiscation proceedings exists but must be exercised sparingly, in cases of true oppression. The Crown's pursuit of a harsh order, and an order exceeding a defendant's net profit, does not by itself establish oppression. The present facts were not sufficiently exceptional.

5. Quashing the confiscation order left the conditional-discharge sentence in force. The court did not decide whether a confiscation order validly made before sentence would later be invalidated by a conditional discharge. It nevertheless stressed that sentencing must be considered independently of confiscation and that, where an absolute or conditional discharge is possible, sentence should ordinarily be passed first.

• Court of Appeal (Criminal Division) — allowed the appeal and quashed the confiscation order: [2009] EWCA Crim 2733.
• Crown Court — made a confiscation order of £15,558.84 after the appellant's guilty plea, then imposed a six-month conditional discharge. The lower-court citation is not stated in the judgment.