Moss v The Crown

For a criminal lifestyle under Proceeds of Crime Act 2002 section 75(2)(c), the prosecution must establish that an offence lasted at least six months and that the defendant obtained at least £5,000 from the conduct constituting that offence. The court must analyse the actual offence and evidence. It cannot rely only on the period stated in the charge or defer the threshold-benefit finding to the separate inquiry into general criminal conduct.

Whether property was obtained as a result of or in connection with an offence is an objective question. A defendant’s purpose of concealing other criminality cannot alone establish the required connection. A rigorous, sequential approach is required in confiscation proceedings.

The appellant pleaded guilty in the magistrates’ court to cattle-record-keeping offences and to failing to dispose of a cow’s carcass. The prosecution then sought committal to the Crown Court under section 70 of the Proceeds of Crime Act 2002.

The Crown Court found that the appellant had a criminal lifestyle and treated cash from the unlawful slaughter and sale of meat from 116 cattle as benefit from the admitted regulatory offences. It made an £83,000 confiscation order and an associated £8,000 costs order.

On appeal, the issue was whether the statutory conditions for a criminal lifestyle and confiscation had been established, and whether the order was unfair or disproportionate.

1. Appeal allowed. The court quashed the £83,000 confiscation order and the associated £8,000 costs order. It declined to direct the Crown Court to proceed afresh.

2. The first and vital question was whether the appellant had a criminal lifestyle. The only realistic route was section 75(2)(c) of the Proceeds of Crime Act 2002. That required proof that an admitted offence was committed over at least six months and that the appellant had obtained relevant benefit of at least £5,000 from the conduct constituting that offence.

3. The Recorder had not made the required threshold finding. He treated the periods stated in the second and third charges as sufficient without analysing whether the evidence showed a continuous offence for at least six months. In particular, the failure to produce records may have concerned only the occasions on which production was requested, rather than the whole charged period.

4. The court also identified an unresolved temporal and causal problem. Cash generated by slaughter and sales between July 2007 and May 2009 was difficult to connect with a later failure to produce records between July 2009 and September 2010. As Threapleton makes clear, the question whether property was obtained as a result of or in connection with an offence is objective. The appellant’s intention to conceal unlawful activity could not itself supply the statutory connection.

5. The prosecution could, in principle, rely on uncharged offending in confiscation proceedings, and its decision not to charge the more serious offences was not by itself an abuse of process. However, the case had not been advanced, and the Recorder had not decided it, on a legally appropriate basis that the failure to notify enabled continuing unlawful activity. The possible exceptional requirement for proof to the criminal standard also required careful consideration, although the court expressed no concluded view on its application.

• Court of Appeal (Criminal Division): Allowed the appeal in [2015] EWCA Crim 713, quashed the confiscation order and the £8,000 confiscation-costs order, and made no direction for fresh confiscation proceedings.

• Crown Court at Ipswich: On 2 October 2013, the Recorder found a criminal lifestyle under the Proceeds of Crime Act 2002, made an £83,000 confiscation order, and ordered £8,000 costs in the confiscation proceedings.

• North East Suffolk Magistrates’ Court: On 21 November 2011, accepted guilty pleas to the relevant offences and committed the appellant to the Crown Court under section 70 of the Proceeds of Crime Act 2002.