Whittle, R. v

For confiscation under the Proceeds of Crime Act 2002, a defendant who obtains property through criminal conduct benefits by its full value. This includes intangible payments retained by the defendant, even if an argument is made that lawful receipt might have occurred later.

The proportionality safeguard does not permit an accounting exercise which credits a defendant with benefits that might have been obtained through honest conduct. Where the defendant had no right to the sums or to the alleged future pension rights, confiscation of the full benefit is proportionate.

The appellant, a parish clerk and responsible financial officer, pleaded guilty to four dishonesty offences. She stole money directly and retained money which she falsely represented would be paid as pension contributions. The total amount was £26,901.30.

Following a confiscation hearing on 25 July 2018, a judge made an order for that full sum under the Proceeds of Crime Act 2002. The appellant accepted the amount of benefit and the recoverable amount, but contended that confiscating the purported pension contributions was disproportionate because she would have received their benefit at retirement. The appeal also raised whether her benefit was instead limited to the value of early receipt.

1. Appeal dismissed. The judge was plainly entitled to order confiscation of the full £26,901.30.

2. Under sections 76(4) and 76(7) of the Proceeds of Crime Act 2002, the appellant obtained intangible property by her criminal conduct. Her benefit was therefore the full value of the payments which she kept. The court applied R v Shabir [2008] EWCA Crim 1809, which showed that full value remains the correct measure even where dishonest conduct obtains money earlier than it would otherwise have been received.

3. Section 6(5)(b) required an order for the recoverable amount unless that would be disproportionate. The court applied the proportionality reasoning in R v Waya [2012] UKSC 51: confiscation is not an accounting exercise which allows a criminal defendant to set off the costs of the crime. The same principle prevents a set-off for benefits which the defendant says would have been gained through lawful conduct.

4. The appellant had no right to receive the relevant sums, either immediately or later. Her employer had not authorised membership of the relevant pension scheme and had not paid contributions into its fund. Any valuation of hypothetical future pension rights was therefore unnecessary. Confiscation of the full benefit was proportionate.

• Court of Appeal (Criminal Division) — dismissed the appeal and upheld confiscation of £26,901.30.
• Confiscation hearing — following the appellant’s convictions, the judge made a confiscation order under the Proceeds of Crime Act 2002 for £26,901.30 on 25 July 2018.