Rooney, R v

For confiscation under Proceeds of Crime Act 2002, benefit is property obtained by the particular offender, not merely property whose acquisition the offender helped to bring about. If conspirators jointly obtained property, each obtained its full value. If an aggregate benefit was divided between conspirators but the evidence does not show their shares, the court may infer an equal division.

That inference is available where defendants provide no evidence of a different division. It does not displace evidence that a particular offender obtained no benefit or only a specified sum.

The appellant had pleaded guilty to participating in the importation of cannabis resin with five co-accused. At the confiscation hearing, the Crown Court treated the retail value of the drugs as the conspirators’ aggregate benefit. In the absence of evidence about their respective shares, it divided that benefit equally and found the appellant’s benefit to be £627,975. A confiscation order of £50,000 followed.

After most of that order was discharged for lack of available assets, a later order under section 22 of the Proceeds of Crime Act 2002 increased the payable amount. The appellant, having obtained an extension of time, challenged the original benefit finding. The issue was whether the judge had erred in law by making an equal division despite the appellant’s limited role.

1. Appeal dismissed. The original finding that the appellant had benefited to the extent of £627,975 was lawful.

2. Under section 76(4) of the Proceeds of Crime Act 2002, an offender benefits only by property which that offender obtains as a result of, or in connection with, the criminal conduct. A person may contribute materially to the acquisition of property without obtaining it. The court accepted the principles stated in R v May [2008] 1 AC 1028 and Jennings v Crown Prosecution Service [2008] 1 AC 1046.

3. The applicable consequences depend on the evidence. Where conspirators obtained property jointly, each is liable for the full value of the jointly obtained property. Where an aggregate benefit was divided but there is no evidence of the individual shares, an equal division may be the fairest available inference. Conversely, evidence that a particular conspirator obtained nothing, or obtained only a specific sum, must be given effect. The earlier authorities, including R v Porter [1991] WLR 1260, had to be read subject to the explanation in R v May.

4. Here, no party had challenged the aggregate retail value of the drugs or adduced evidence of the respective shares. The appellant neither contended at the confiscation hearing that his only benefit was £200 nor gave evidence to that effect. The judge had not found that all conspirators jointly owned the drugs, but was entitled to infer that each had obtained a share of the aggregate benefit and to divide it equally. That conclusion accorded with section 76(4) and was not undermined by the subsequent House of Lords decisions.

5. The later section 22 proceedings concerned the available amount, not the original benefit figure. They gave no jurisdiction to reopen that figure.

• Court of Appeal (Criminal Division): The court dismissed the appellant’s challenge to the Crown Court’s original benefit finding: [2010] EWCA Crim 2.

• Manchester Crown Court: HHJ Steiger QC found the appellant’s benefit from the conspiracy to be £627,975 and made a confiscation order of £50,000 on 19 July 2004.

• Manchester Crown Court: HHJ Hammond later made an unopposed order under section 22 of the Proceeds of Crime Act 2002 concerning the available amount. That order did not reconsider benefit.