Hursthouse, R. v

For confiscation under the Proceeds of Crime Act 2002, property is obtained where the offender acquires legal ownership or a sufficient power of disposition or control. The offender need not have realised or enjoyed the property. A later exposure of the fraud and civil restoration of property do not retrospectively prevent an obtaining.

However, section 6(5) must be applied proportionately under Article 1 of the First Protocol. Where the whole benefit identified as the proceeds of particular criminal conduct has been restored, or stands ready to be restored, to the victim and the offender has no additional benefit, a confiscation order for the same sum is disproportionate because it produces double recovery.

The appellant pleaded guilty to fraud after presenting a forged will of her late father to solicitors. The forged will named her as sole executrix and sole beneficiary. Probate was granted, but the fraud was detected before the estate was distributed.

The Crown Court at Nottingham made a confiscation order for £49,931.73, representing the half share which would have passed to Paul Spencer under the genuine will. The genuine will was subsequently implemented and Mr Spencer received that share.

On appeal, the court considered whether the grant of probate meant that the appellant had obtained property for confiscation purposes, and whether the order was proportionate after the restoration of the identified benefit.

1. Appeal allowed; confiscation order quashed. The appellant had obtained property as a result of her criminal conduct, but the order was disproportionate.

2. Under sections 76(4) and 84 of the Proceeds of Crime Act 2002, the inquiry is whether the offender obtained property, not whether she had received or enjoyed its proceeds. The relevant indicia are legal ownership and a power of disposition or control. A subsequent civil remedy restoring property to its true owner does not undo the original obtaining for criminal-confiscation purposes.

3. Upon the grant of probate of the forged will, while it remained unrevoked, the appellant was conclusively established against the world as sole executrix and sole beneficiary. She thereby acquired legal and beneficial title to the estate, together with power to direct its lawful administration and eventual distribution through the solicitors acting for her. Her beneficial interest in the unadministered estate was intangible property which could be assigned. She had therefore obtained property even though no monies had yet been distributed and the fraud was soon detected.

4. Following R v Waya [2012] UKSC 51, section 6(5) must be read subject to the proportionality requirement imposed by Article 1 of the First Protocol to the European Convention. The Crown had identified the appellant’s benefit solely as Mr Spencer’s half share. That share had been fully restored through implementation of the genuine will, and the appellant had obtained no additional benefit from the fraud. A further order for its value would be a second pecuniary penalty rather than recovery of criminal proceeds. The Crown’s suggestion that the deceased might have disinherited the appellant if aware of the fraud was speculative and irrelevant to the actual consequences of the offending.

• Court of Appeal (Criminal Division): allowed the appeal and quashed the confiscation order: [2013] EWCA Crim 517.

• Crown Court at Nottingham: made a confiscation order of £49,931.73 on 22 October 2010 following the appellant’s fraud conviction.