Anthony Samuel Bond v R

A sentencing judge may determine the factual basis of sentence from the trial evidence where a jury verdict leaves the extent of a fraud unresolved. A finding reached on that basis may also be adopted in confiscation proceedings where the factual issue and evidential framework are the same, particularly where the defendant adduces no further evidence. The civil standard applicable to confiscation does not require a different conclusion.

A confiscation order under the Proceeds of Crime Act 2002 is not disproportionate through double recovery merely because HMRC has pursued other participants. There must be a real risk of duplicate recovery. None arose where the false VAT input-tax claims had not been met by the defaulting traders.

The appellant was convicted at Southwark Crown Court of conspiracy to cheat arising from a VAT fraud involving companies under his control. He was sentenced to seven and a half years’ imprisonment. The trial judge later found that he had benefited from the offending by £15 million and made a confiscation order for the available amount of £1,839,317.20.

The appellant appealed against that order. He contended that the jury’s verdict did not establish the extent of his benefit, that the judge had impermissibly relied on his sentencing findings, and that the order risked double recovery. The earlier appeal against conviction had been dismissed: [2020] EWCA Crim 1596.

The central issue was whether the evidence entitled the judge to find a benefit of £15 million for confiscation and whether the resulting order was proportionate.

1. Appeal dismissed. The trial judge was entitled to find that the appellant had gained at least £15 million from the conspiracy and to make a confiscation order for £1,839,317.20.

2. The jury’s verdict did not itself quantify the appellant’s benefit. It remained open to the sentencing judge to determine the factual basis of sentence. Applying R v King [2017] EWCA Crim 128, the judge could make findings to the criminal standard from the trial evidence. If unable to reach a sure conclusion, he would have had to adopt the basis most favourable to the appellant.

3. The evidence supported the finding that no VAT was paid to the supplier traders and that the purported transactions either did not occur with those traders or were not paid for inclusive of VAT. The judge had presided over a lengthy trial, heard the appellant’s evidence, and identified substantial evidence of the fraud’s operation. The Court rejected the submission that the fraud consisted only of defaulting traders failing to account for VAT on genuine, VAT-paid sales.

4. Sentencing and confiscation are distinct processes. In this case, however, each required the same factual assessment of the appellant’s financial gain from the conspiracy. The appellant produced no further evidence at the confiscation hearing. The judge was therefore entitled to reach the same conclusion. The lower civil standard in confiscation proceedings under section 6(7) of the Proceeds of Crime Act 2002 reinforced that conclusion.

5. There was no disproportionate double recovery. Unlike R v Harvey [2015] UKSC 73, HMRC’s pursuit of the defaulting traders did not create such a risk. They had paid, and would pay, no VAT to HMRC. It was therefore proportionate to require payment of the recoverable amount under section 6(5) (b) of the Proceeds of Crime Act 2002.

• Court of Appeal (Criminal Division) — Dismissed the appellant’s appeal against the confiscation order: [2024] EWCA Crim 1570.
• Southwark Crown Court — On 18 January 2024, His Honour Judge Bartle KC made a confiscation order for £1,839,317.20 after finding benefit of £15 million.

An earlier appeal against conviction was dismissed by the Court of Appeal on 27 November 2020: [2020] EWCA Crim 1596.