McIntosh & Anor v R.

Under section 71(6) of the Criminal Justice Act 1988, the court must order the lesser of the offender’s benefit and the amount appearing to be realisable. The offender bears the burden of showing that the realisable amount is lower, but dishonest or incomplete disclosure does not itself compel an order for the whole benefit.

The statutory question must be answered from the evidence as a whole. A court may find that assets are insufficient despite the offender’s untruthfulness if other evidence supports that conclusion. Justice and proportionality operate within the statutory scheme; they create no residual discretion outside it. If the evidence does not establish a lower realisable amount, the court must order the full benefit.

McIntosh & Anor v R. concerned appeals against confiscation orders made by His Honour Judge Alexander QC in the Northampton Crown Court after the appellants’ convictions for conspiracy to cheat the public revenue in an MTIC fraud.

Each appellant had agreed a benefit figure of £3,668,990. They contended that they had no realisable assets, or assets substantially below that figure. The judge rejected their accounts, found that assets had been concealed, and made confiscation orders for the full agreed benefit.

The appeals raised whether a finding of dishonest or incomplete disclosure automatically requires an order for the full benefit, and whether the judge had adopted that approach.

Appeals dismissed.

1. Section 71(6) of the Criminal Justice Act 1988 required the judge to order the lesser of the agreed benefit and the amount appearing to be realisable. The appellants bore the burden of showing that the latter amount was lower. The statutory scheme contained no residual discretion to reduce an order outside its terms.

2. However, the court rejected the proposition that an offender’s dishonest, incomplete, or absent disclosure automatically prevents that burden being discharged. A court must make a just and proportionate assessment under the statute on the facts as a whole. Evidence from sources other than the offender may establish that the realisable amount is below the benefit.

3. The court explained the dicta in Telli v Revenue and Customs Prosecution Office [2008] 2 Cr App R (S.) 48 as normally applying where undisclosed assets might, for all the court knows, meet the whole benefit. They did not impose an inflexible rule requiring a full-benefit order whenever an offender has lied about assets.

4. The judge had nevertheless applied the correct statutory approach. In McIntosh’s case, the findings about his previous declared wealth, offshore investment and role in the fraud entitled the judge to find no realisable amount below the agreed benefit. In Marsden’s case, the finding that he retained assets abroad of unknown value likewise gave no basis for a lower assessment. The full confiscation orders were therefore the only orders open on the findings made.

• Court of Appeal (Criminal Division) — dismissed both appeals against confiscation orders.
• Northampton Crown Court — His Honour Judge Alexander QC made confiscation orders for the full agreed benefit after finding that each appellant had failed to establish a lower realisable amount.