Allpress & Ors v R.

For confiscation, the court must identify the benefit actually obtained by the individual defendant. Physical receipt or custody of criminal property, including cash, does not itself establish benefit. A courier or custodian who merely holds property for another, for a fixed fee and without a proprietary interest or right of disposition, obtains only that fee and any expenses.

This approach applies equally to money-laundering offences and to cash. Under the Proceeds of Crime Act 2002, mere manual possession is not a right to possession or an interest in property. By contrast, funds paid into and controlled through an offender's own bank account may be property obtained by that offender, even if the account is used to facilitate another's retention of criminal proceeds.

Five appeals against confiscation orders were heard together after the House of Lords' decisions on criminal benefit. Allpress, Symeou and Casal had acted as cash couriers for others involved in criminal activity. Stephen Martin had stored his brother's criminal cash. Each received only limited payments or rewards.

Morris, a solicitor, received and transferred criminal proceeds through his firm's client account. The trial judge found that he had legal ownership and practical control of the funds, rather than being a bare trustee.

The common issue was whether physical handling, custody or transfer of criminal cash amounted to obtaining it for confiscation purposes under the earlier confiscation regimes or the Proceeds of Crime Act 2002.

1. The appeals of Allpress, Symeou, Casal and Martin were allowed; Morris's appeal was dismissed. The confiscation orders against the three couriers were reduced to their agreed fees and expenses. Martin's order was quashed.

2. The court applied the established confiscation inquiry: whether the defendant benefited from the relevant criminal conduct, the value of that benefit, and the recoverable sum. Benefit is what the particular defendant obtained. It is not the aggregate benefit of a conspiracy, and criminal participation does not itself establish a joint share in all criminal proceeds.

3. Following May [2008] UKHL 28 and Jennings [2008] UKHL 29, a person ordinarily obtains property where he owns it, alone or jointly, or has a power of disposition or control amounting to an interest in it. A mere courier or custodian holding property for another does not obtain the property merely by physical possession.

4. That principle applied to cash. Neither the fact that an offence is described as money laundering nor the negotiable character of currency creates a special confiscation rule. Under the Drug Trafficking Act 1994, a payment or other reward must be a payment or reward to the defendant. Under the Proceeds of Crime Act 2002, a custodian's de facto possession is distinct from a right to possession. Even a limited interest would be valued only at the value of that interest.

5. Morris was different. The client account was used as a façade for transfers rather than for a genuine professional purpose. Payments into the account gave Morris and his partners rights against the bank, and Morris had sole operational control. On the judge's findings he was not a bare trustee or nominee, so he had obtained the funds for confiscation purposes.

6. The court invited written submissions on consequential matters, including Morris's proposed extension of time to pay.

• Court of Appeal (Criminal Division): Allowed the appeals of Allpress, Symeou, Casal and Martin. The first three orders were reduced to the agreed benefit figures, and Martin's order was quashed. Dismissed Morris's appeal.
• Crown Courts: Confiscation orders had been made at Woolwich, Southwark, Cardiff and Birmingham Crown Courts following convictions for offences involving criminal proceeds.