Morgan, R v

A confiscation challenge founded on oppression must be determined as a question of proportionality under Article 1 of Protocol 1, rather than abuse of process. Under the Proceeds of Crime Act 2002, an offender who unlawfully operates a waste-disposal site obtains a pecuniary advantage by avoiding landfill tax, licence fees and compliance costs which a lawful operator would have paid.

In a criminal lifestyle case, that advantage may constitute property and benefit from general criminal conduct. The statutory assumptions remain applicable unless shown incorrect or productive of a serious risk of injustice. Benefit depends on the actual results of criminal conduct, not the offender’s intended lawful purpose.

The appellant pleaded guilty to offences arising from the unlicensed deposit and storage of waste at a field on his farm. His basis of plea stated that the deposited construction and demolition waste was inert and was intended to improve the land for agriculture. He received no payment for the deposits.

At Newport Crown Court, Judge Morris found that the operation was waste disposal rather than recovery. He found that it avoided the costs of a lawful, licensed landfill operation and made a confiscation order of £156,500. The appellant appealed, contending that the proceedings were oppressive, that he had obtained no benefit, and that the operation was recovery rather than disposal.

1. Appeal dismissed. The Court held that the appellant had not shown that the confiscation order was disproportionate.

2. Following R v Waya [2013] 1 AC 294, an argument that a confiscation order is oppressive is to be analysed through proportionality under Article 1 of Protocol 1. The duty to make an order under section 6(5)(b) of the Proceeds of Crime Act 2002 is qualified to the extent that an order would be disproportionate. The Act’s purpose is to remove the proceeds of crime.

3. The appellant accepted that this was a criminal lifestyle case. He neither showed that the assumptions under section 10 were incorrect nor established a serious risk of injustice. On the agreed costs of a lawful disposal operation, there were no unusual circumstances capable of making the order disproportionate.

4. On the judge’s finding that the activity was disposal, the appellant had evaded liabilities personally applicable to him. Those liabilities included landfill tax, licence fees, surveys, engineering works and other compliance costs. The avoided expenditure was a pecuniary advantage under section 76(5), and therefore property and benefit for confiscation purposes.

5. Benefit turns on what actually occurred, rather than the appellant’s intention that the work should improve the land. The connection required by section 76(4) is broad. The judge was entitled to find, on the expert evidence and whether or not the EPR 13 five-step guidance was used, that there was no clear agricultural or drainage benefit and that the operation was disposal, not recovery.

• Court of Appeal (Criminal Division): Dismissed the appeal against the confiscation order: [2013] EWCA Crim 1307.
• Newport Crown Court: Judge Morris made a confiscation order of £156,500 on 20 April 2012 after finding that the unlicensed operation was waste disposal and that the appellant had obtained that sum in benefit.
• Crown Court at Cardiff: The appellant pleaded guilty in 2010 to offences concerning unlicensed deposits and storage of controlled waste.