Clark & Anor, R. v

In confiscation proceedings under the Proceeds of Crime Act 2002, the seriousness or importance of an offender’s role in a conspiracy does not itself establish that he obtained all property handled by the conspiracy. The court must decide, as a question of fact, the capacity in which the offender received the property. Benefit normally requires ownership, whether sole or joint, or a corresponding right of control or disposition.

A courier, custodian or bailee paid for handling property will not ordinarily obtain it merely through physical possession. A confiscation order is unsound if it infers joint ownership solely from the offender’s importance to the criminal enterprise without findings on that issue.

Clark and Severn were convicted at the Crown Court at Luton of conspiracy to handle stolen cars. Their business provided containers, storage and transport arrangements used to prepare stolen vehicles for export to East Africa.

In confiscation proceedings, the judge assessed the value of 54 cars at £1.5 million. He made an order against Clark for his available assets of £769,768.90, having treated Clark’s role as an integral facilitator as sufficient to attribute to him the full value of the cars. Severn had agreed a settlement fixing his available assets at £85,000.

Clark appealed against the assessment of benefit. The central issue was whether his role as an important participant and bailee of the cars established that he had obtained them jointly with the principal conspirators.

1. Clark’s appeal was allowed. The confiscation order against him was quashed and the issue of benefit was remitted to the Crown Court.

2. Under sections 76 and 84 of the Proceeds of Crime Act 2002, benefit depends on property obtained by the individual defendant. Applying the principles in R v May [2008] UKHL 28, Jennings v Crown Prosecution Service [2008] UKHL 29, R v Sivaraman [2008] EWCA Crim 1736 and R v Allpress [2009] EWCA Crim 8, the relevant factual inquiry was whether Clark received the cars for his own benefit, for others, or jointly for himself and others. A significant role in the conspiracy may be relevant evidence, but does not answer that question.

3. The judge had reasoned directly from Clark’s importance as a principal conspirator and integral facilitator to the conclusion that he benefited from the full value of every car passing through his hands. That was an error. Clark and his company received the cars as bailees for containerisation and transport. There was no finding that they shared ownership of the cars or of the proceeds of sale, rather than receiving fees for their services. The possibility of substantial fees did not remove the need for findings on the capacity in which Clark held the cars.

4. The court exercised its power under section 11(3A) of the Criminal Appeal Act 1968 to remit the confiscation proceedings for a fresh determination of Clark’s benefit.

5. Severn’s renewed application for leave to appeal was refused. His confiscation order followed an approved settlement. In any event, the agreed £85,000 figure was not shown to be unfair, and joint conspirators may each be liable for the full value of benefit jointly obtained.

• Court of Appeal (Criminal Division). In [2011] EWCA Crim 15, Clark’s appeal against the confiscation order was allowed. The order was quashed and remitted for a fresh determination of benefit. Severn’s renewed application for leave to appeal was refused.
• Crown Court at Luton. On 19 June 2009, Judge Foster made a confiscation order against Clark for £769,768.90, representing his available assets, after assessing benefit at £1.5 million. Severn’s approved settlement resulted in an order for £85,000.