Straughan, R v

For confiscation purposes, benefit must be based on property personally obtained by the defendant. It is not enough that the defendant helped an employer or other corporate vehicle obtain property through criminal conduct.

An employee does not obtain a company's criminal receipts merely by virtue of employment. The prosecution must establish a personal gain, such as enhanced salary, expenses or other emoluments attributable to the criminal activity. Where the prosecution's case provides no primary facts from which the appellate court can assess that benefit, the confiscation order should be quashed.

The applicant was convicted at Bradford Crown Court of six counts of fraudulent trading and received a total sentence of two years' imprisonment. The fraudulent dealings enabled companies employing her and three co-accused to obtain nearly £50 million, causing bank losses of £7.5 million.

At a confiscation hearing, the judge treated the aggregate property obtained by the companies, about £46.7 million, as the defendants' benefit and apportioned it between them. He assessed the applicant's share at £3.89 million but made an order for her realisable assets of £125,000.

She appealed, relying on Jennings v Crown Prosecution Service [2008] UKHL 29 and the successful appeal of a co-accused in R v Grainger [2008] EWCA Crim 2506. The issue was whether an employee had personally obtained the companies' receipts for confiscation purposes.

1. Appeal allowed. The court extended time by 11 months and 19 days, granted permission to appeal, and quashed the £125,000 confiscation order.

2. The judge's apportionment of the companies' total receipts between the defendants could not stand. Applying the approach in Jennings v Crown Prosecution Service [2008] UKHL 29, benefit had to be the value of property obtained by this defendant herself, rather than property which she had assisted the companies to obtain.

3. Her status as an employee did not, without more, make her the recipient of the payments made by the banks to the companies. The prosecution needed evidence of a personal gain resulting from the criminal activity, such as remuneration, expenses or other emoluments above the level received by employees not involved in criminal conduct.

4. The court followed the reasoning in R v Grainger [2008] EWCA Crim 2506, concerning a co-accused's order made at the same hearing. The prosecution had advanced only a limited factual case on confiscation. As the Court of Appeal was not a court of review and lacked the necessary primary facts to determine any benefit personally obtained by the applicant, it could not make a replacement assessment.

• Court of Appeal (Criminal Division): By [2009] EWCA Crim 955, allowed the appeal and quashed the confiscation order.
• Crown Court at Bradford: Convicted the applicant on 16 May 2007 of six counts of fraudulent trading and sentenced her the following day. On 21 January 2008, made a confiscation order for £125,000 after assessing her benefit at £3.89 million.