Lehair, R. v

Where a literal reading of a confiscation provision would produce an absurd anomaly that defeats the expressed purpose of the Proceeds of Crime Act 2002, it should be construed purposively. For a defendant without a criminal lifestyle, the reference in section 77(5)(a) to the date on which the offence was committed refers to the time of its commission. A gift made after that time may therefore be a tainted gift even if it was made later on the same calendar day.

The appellant pleaded guilty to robbery and attempted robbery. Following the robbery, she deposited part of the stolen money into her own bank account and transferred £1,100 to her husband.

A Recorder made a confiscation order under section 6 of the Proceeds of Crime Act 2002, treating the transfer as a tainted gift. The appellant appealed on the sole ground that section 77(5)(a) did not cover a gift made later on the calendar day of the offence.

The central issue was the proper construction of section 77(5)(a).

1. Appeal dismissed. The confiscation order stood.

2. A literal construction of section 77(5)(a) would exclude a transfer made after an offence but before midnight on the same day. It would give an offender a period in which to dispose of assets and would make the treatment of assets depend on the time at which the offence was committed.

3. That result was anomalous and inconsistent with the explicit purpose of the Proceeds of Crime Act 2002: the recovery of property obtained through unlawful conduct. It could not have been Parliament’s intention to require the prosecution, enforcement agencies or the court to devise an extra-statutory means of reaching such assets.

4. The court therefore adopted a purposive construction. In section 77(5)(a), the date on which the offence was committed must be read as referring to the actual time of commission. A tainted gift made after that time falls within the confiscation regime, whether made later that day or on a subsequent day.

5. The Recorder had correctly treated the transfer to the appellant’s husband as a tainted gift. The order remained in force and ordinary recovery procedures were to follow.

• Court of Appeal (Criminal Division) Dismissed the appeal against the confiscation order.

• Crown Court (Recorder) On 2 October 2014, assessed benefit at £2,375 and made a confiscation order for £1,140 under section 6 of the Proceeds of Crime Act 2002.