Anderson v R

For confiscation purposes, a conspirator benefits only from property that he has obtained, whether alone or jointly. Joint ownership of criminal proceeds may be inferred from the conspirators’ relationship and roles, but it must be established on the evidence. It cannot be assumed merely because a person was a party to the conspiracy. Where the evidence does not permit a finding of joint ownership or actual division, an equal division may be the fairest available solution.

A beneficial interest held under an express trust depends on the conditions stated in the trust instrument. Payment of mortgage instalments did not satisfy a condition requiring the appellant to apply specified sale proceeds to repay the loan.

The appellant had been convicted of conspiracy to facilitate illegal entry into the United Kingdom. Following confiscation proceedings in the Inner London Crown Court, Judge Chapple assessed his criminal benefit at £189,224 and his available assets at £229,964, and made a confiscation order for the benefit figure.

On appeal, the appellant challenged the attribution to him of the full proceeds of part of the conspiracy on the basis of joint ownership. He also challenged the inclusion of a one-third interest in the proceeds of sale of a house held under a deed of trust. The central issues were whether the criminal proceeds had been jointly obtained and whether the deed gave him a beneficial interest.

1. Appeal allowed. The court reduced the appellant’s criminal benefit by £20,000 to £169,224. It substituted £43,683.27 as the available amount and therefore as the confiscation order. The period of imprisonment in default was reduced to 18 months.

2. Under Proceeds of Crime Act 2002, section 76, a defendant benefits only from property he has obtained. As R v May [2008] UKHL 28 and Jennings v Crown Prosecution Service [2008] 1 AC 1046 showed, this ordinarily requires ownership, alone or jointly, and normally entails power of disposition or control.

3. Joint ownership of conspiracy proceeds is a factual inference. The relationship and respective roles of principal conspirators may support it, as illustrated by Green [2008] 1 AC 1053. It is not, however, a consequence that follows automatically from participation in a conspiracy. The prosecution bears the burden of establishing joint ownership on the balance of probabilities.

4. The trial judge had not made findings capable of supporting a conclusion that the appellant jointly owned the proceeds with all co-conspirators. The available evidence did not justify treating the appellant and Hassan as joint owners. In the absence of a proper basis for deciding the division, a three-way division between the principal participants was accepted as the fair solution, consistently with R v Gibbons [2003] 2 Cr App R (S) 169.

5. The deed of trust gave the appellant a 35% interest only if he used the proceeds of sale of his other property to repay the £100,000 loan. That condition never occurred. Paying mortgage instalments, and the later discharge of the mortgage from the sale proceeds, did not confer the interest asserted by the Crown. The judge therefore erred in including one third of those proceeds among the appellant’s assets.

• Court of Appeal (Criminal Division): The appeal against the confiscation order was allowed in [2010] EWCA Crim 615.
• Inner London Crown Court: On 27 October 2008, Judge Chapple made a confiscation order of £189,224 following the appellant’s conviction for conspiracy to facilitate illegal entry into the United Kingdom.
• Court of Appeal (Criminal Division): An earlier appeal against conviction and sentence was dismissed on 15 January 2008.