Takkar v R.

Under Proceeds of Crime Act section 76(5), an offender who obtains a pecuniary advantage must be treated as obtaining money equal to that advantage. The provision is mandatory and creates no rebuttable presumption based on whether cash was personally retained.

For the criminal-lifestyle condition in section 75(2)(c), the court must determine the period of offending proved by the evidence, rather than rely on the period pleaded in the indictment. An appellant who seeks to challenge the available amount or statutory assumptions must adduce clear and cogent evidence. Unsupported written assertions, where the witness and underlying documents could have been produced, will not displace them.

The appellant had been convicted at the Crown Court at Guildford of conspiracy to cheat, cheating and fraudulent trading arising from VAT transactions, including a Missing Trader Intra Community fraud. A confiscation order of £5,320,420 was made, with a consecutive ten-year default term.

He appealed against the treatment of evaded VAT as benefit, the finding that he had a criminal lifestyle, the inclusion of earlier transactions, the rejection of evidence concerning the source of property funds, and the conclusion that the available amount equalled the benefit. The central issues concerned the operation of sections 75(2)(c) and 76(5) of the Proceeds of Crime Act and the evidential burden in confiscation proceedings.

1. Appeal dismissed. The confiscation order was upheld.

2. Section 76(5) of the Proceeds of Crime Act distinguishes obtaining property from obtaining a pecuniary advantage. Where an offender obtains the latter, the court must treat him as having obtained money equal to its value. It is a mandatory deeming provision, not a rebuttable assumption. The evasion of VAT therefore constituted benefit equal to the unpaid VAT. There was no unfairness or unreality on the facts: the VAT was remitted abroad and the appellant had diverted VAT payable to his company.

3. The criminal-lifestyle condition in section 75(2)(c) depends on the offending actually proved, not the period stated in the indictment. The judge was entitled to find that the appellant had dishonestly failed throughout the relevant ten-month period to account for VAT payable by his company. The cheating and fraudulent-trading offences were therefore committed for at least six months, and he had benefited from that conduct.

4. The appellant could not, for the first time on appeal, challenge whether his control of the company during the earlier trading period justified treating its pecuniary advantage as his. The issue had not been raised below. Consequently, the evidence had not been investigated and the necessary findings had not been made.

5. The judge was entitled to reject the solicitor's unsupported written assertion about the source of the property funds. The solicitor could have given evidence and the underlying documents could have been produced. More generally, the appellant had produced no evidence to displace the statutory assumptions or to establish that the available amount was less than the benefit. The judge was therefore bound to make an order for the full benefit figure.

• Court of Appeal (Criminal Division): dismissed the appeal against the confiscation order in [2011] EWCA Crim 646.
• Crown Court at Guildford: following the appellant's convictions, made a confiscation order of £5,320,420 with a ten-year consecutive default term.