Wright, R v

For confiscation under Proceeds of Crime Act 2002, a defendant obtains a pecuniary advantage where criminal conduct relieves him of a liability he would otherwise have incurred. A fraudulent claimant whose innocent solicitors are paid by an insurer obtains such an advantage if the fraud has avoided his liability for their fees.

The statutory phrase must be construed from the 2002 Act and its purpose. The repealed definition of pecuniary advantage in the Theft Act 1968 is not to be imported. Payment of fees to the solicitors does not itself give the defendant property, but it can confer a pecuniary advantage by discharging his liability.

The appellant had been convicted under section 2 of the Fraud Act 2006 after making a false insurance claim following a road traffic collision. The insurer paid sums for repairs and personal injury, and also paid £2,258 to solicitors acting for the appellant in pursuing the claim.

On confiscation proceedings in Newcastle upon Tyne Crown Court, the appellant accepted benefit of £2,006.67 but disputed that the solicitors’ fees were benefit obtained by him. The Crown Court included the fees and made a confiscation order for £4,915.99. The issue on appeal was whether payment of those fees gave the appellant a pecuniary advantage within section 76(5) of the Proceeds of Crime Act 2002.

1. Appeal dismissed. The confiscation order of £4,915.99 was correct. The court also made a recovery of defence costs order of £300.

2. The court held that the repealed definition of pecuniary advantage in section 16 of the Theft Act 1968 could not be imported into the Proceeds of Crime Act 2002. The issue had to be determined by the language, purpose and definitions of the 2002 Act. Consistently with R v May [2009] 1 Cr App R (S) 31, the scheme strips offenders of benefit rather than compensates loss.

3. The appellant had not obtained property. The solicitors received fees for their own work, not for onward transmission to him, and he acquired no interest in those sums. The fact that the fees were paid to innocent solicitors therefore did not satisfy section 76(4).

4. However, the solicitors had acted for the appellant in advancing the false claim. Their fees were paid because the insurer was deceived into treating that claim as genuine. In ordinary litigation the appellant would have been liable for those fees if the insurer had not paid them. His fraud relieved him of that liability and thereby gave him a pecuniary advantage within section 76(5).

5. The result was unchanged by any possible conditional-fee or similar arrangement. The solicitors would not have entered such an arrangement had they known the claim was fraudulent, and the appellant had used their services as part of the fraud. Any deficiency in the judge’s factual analysis of the fee arrangement did not vitiate the order.

• Court of Appeal (Criminal Division): In [2014] EWCA Crim 382, dismissed the appeal and upheld the confiscation order.
• Newcastle upon Tyne Crown Court: On 26 June 2013, made a confiscation order for £4,915.99 following the appellant’s conviction for fraud.